Immigration Bill

Lord Woolf Excerpts

Tuesday 1st April 2014 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I have the disadvantage of not seeing this matter quite in the way that my colleagues have seen it. This tribunal is an appeal tribunal from a judgment of the decision of the Secretary of State. This clause deals with a situation in which it appears, in the course of the proceedings or perhaps before they start, that there is a new ground of decision that has not as yet been dealt with by the Secretary of State. It is the Secretary of State’s jurisdiction to decide that, and the appeal tribunal’s jurisdiction is to consider appeals that arise from the decision of the Secretary of State. Therefore the essence of this particular procedure appears to be that a new decision is called for from the Secretary of State on a matter which has not been before the Secretary of State previously.

I do not see how that is in any way a breach of principle, but I know from experience long past that the way in which immigration tribunals deal with these matters has been a cause of great difficulty. During my time there were great accumulations of arrears in the immigration tribunals, and all sorts of efforts were made to try to deal with that. One of my successes, which I cherish, was to get money from the Treasury to set up new immigration appeal tribunals in the hope that that would reduce the number of cases waiting. Like all such efforts, that does not seem to have worked, as the list of appeals still seems to be pretty long.

That seems to be the essence of this issue. I agree that there are problems when this sort of thing arises in the course of an appeal on an earlier decision, but the fact that that happens is something which has to be dealt with. One of the difficulties that my noble friend Lady Berridge referred to was that it is often very difficult, in the course of these proceedings, to get in touch with the Home Office representative before the case starts; the case goes ahead without anyone getting in touch with them. That is not a new difficulty, and I suppose that this amendment is intended to deal with it to some extent. There is an underlying difference in principle between the way in which my colleagues look at this and the way I think it is possible to look at it.

[Lord Woolf (CB)]

My Lords, this is a matter in which I, like the noble and learned Lord, Lord Brown, have had considerable practical experience, first as a Treasury junior, who for years advised and acted for the Government on these problems that arise in immigration matters, which can be very frustrating indeed.

I have been delighted at the steps that were taken, with the encouragement of the judiciary, to transfer matters which previously went before the courts on judicial review to tribunals. We have to recognise that there are situations within the court system where tribunals are better equipped to deal with matters than the courts are, because the tribunals’ knowledge and experience is so considerable. Because of that, this process has continued. I am happy to say that the noble and learned Lord, Lord Mackay, does himself an injustice when he suggests that what he sought to do has not produced positive results. It has, and I can say to the House with confidence that if we had not built up the tribunal system in the way it has been built up, from a practical point of view judicial review would be an area of great difficulty in the courts today.

It is therefore very important that we do not do something that is contrary to principle and which reflects adversely on the tribunal system. Of course, that was not the intention of those who were responsible for drafting the amendment now under consideration. However, the transfer from the tribunal that has jurisdiction to deal with matters of this sort, for the sort of reasons that have been put forward, to one of the parties of the proceedings, is just totally and utterly contrary to principle and it should be and can be rectified in a way that is acceptable.

The noble Baroness, Lady Berridge, was very modest about her amendment; she said that it may not be perfect, and she may be right about that, but this matter certainly warrants consideration. It would be a very undesirable precedent indeed to create a situation where one of the parties to the proceedings has in effect to give its consent to the other party doing something that justice may require. In addition, the suggestion that something should go back to the beginning is just out of accord with what is now the practice in the courts. It is true that the real decision-making body is the Minister and not the courts, but for years, in my experience, the courts, when a new point has arisen, have taken the view that it is more practical and more in accord with common sense for the tribunal that is dealing with the matter to continue to deal with the new matter, if it thinks that it is right to do so, rather than to send it back to the Secretary of State, who is technically the decision-making body under the legislation.

With respect to the noble and learned Lord, Lord Mackay, to whom I bow in these matters, because he has been such a benign influence in the development of our court system, on this occasion the difference that he has with the noble and learned Lord, Lord Brown, and myself is misplaced and is not in accord with the practice adopted by the courts today, when a matter comes before them that should technically go back and discretion is exercised by the court to save everybody’s time and money by dealing with it themselves. So I urge the Minister to have another look at this matter, consult on it and come back at Third Reading.

[Lord Hope of Craighead (CB)]

I shall say a few words in support of the noble Baroness’s amendment. I thought that she made a very valuable point when she referred to the issue as raising an issue of constitutional principle, because it goes right back to the formation and foundations of the rule of law, where one of the two basic principles is that no man should be a judge in his own court. This was long before the referees got on to the football pitch, but it is an absolutely basic rule of law teaching, and it acquires particular force as a principle when the party that one is talking about are the Executive. One is taught that there should be a separation of powers between the judiciary and the Executive, and one can think of many countries that one would not wish to live in where the Executive are able to dictate to the courts whether or not they will entertain an argument. It is that kind of spectre that is raised by the proposal in the Bill, which I hope that the Minister will look at again, more carefully.

As for practice in the courts, as the noble and learned Lord, Lord Woolf, was indicating, it is quite common in judicial review for fresh grounds to call for a fresh decision in the course of the same process. The courts do not as a matter of practice send the whole thing back to the beginning so that it has to start off with a fresh writ, to begin all over again. They are well used to this—and, indeed, the kind of test in the amendment is one that is commonly applied by the courts every day in deciding whether or not fresh grounds should be argued.

I have two points respectively on the wording of the amendment. First, when I read the amendment for the first time it occurred to me that I would have liked to see the word “previously” at the very end of it, just to make it clear that the issue is whether there were good grounds for not raising the matter before the Secretary of State on the previous occasion when he was looking at the issue. Secondly, the test that is put in the amendment is relatively mild—“good reasons”. There would perhaps be room for looking at that test again and deciding whether it should be put slightly higher, if the Secretary of State is concerned that the court is not applying the kind of test that he would like to be applied—“very good grounds” or “extremely”, or something of that kind. One cannot draft on the Floor of the House.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, I am grateful to my noble friend Lady Berridge for introducing this amendment, which, as the noble Baroness, Lady Smith, said, has given rise to many learned contributions in the course of debate. As has been indicated, the amendment would place the tribunal in a position of the primary decision-maker; it would allow matters to be considered and decided by the tribunal without the Secretary of State having considered and decided them.

The tribunal exists to consider appeals against the refusal of an application by the Secretary of State. That is why the Bill provides that the tribunal may not consider matters that have not first been considered by the Secretary of State unless the Secretary of State consents to it doing so. Picking up the point made by the noble and learned Lord, Lord Woolf, nothing in the proposal in any way reflects on the work that has been done by the tribunal. Indeed, the point he made from experience about it being more appropriate than the cases that went to court is in no way a reflection on the tribunal.

The Joint Committee on Human Rights stated in its report that the provision relating to the Secretary of State’s consent may not be compatible with the principles of equality of arms, right of access to a court and the separation of powers because it allows one of the parties to an appeal, the Secretary of State, to determine the scope of the tribunal’s jurisdiction. Of course, ultimately Parliament sets the jurisdiction of the parameters within which the tribunal will operate.

However, the principal reason why the Government have proposed this measure is that we do not believe it is right for the tribunal to be the primary decision-maker. I certainly will reflect on the points made on that principle. I noted that the noble and learned Lord, Lord Woolf, said that it was more practical for the tribunal to deal with this matter although, technically, the decision-making body was the Secretary of State. I think that my noble and learned friend Lord Mackay of Clashfern made the point that the primary decision-maker in these matters is the Secretary of State. Therefore, I do not think it is such a clear question of principle as perhaps has been suggested. The noble and learned Lord, Lord Woolf, maintained that there were compelling practical reasons. However, the primary decision-maker is, indeed, the Secretary of State. The role of the Secretary of State—

[Lord Woolf]

Perhaps the noble and learned Lord will ponder on the following. Although, of course, the Secretary of State must be the primary decision-maker, the Secretary of State may not be content for the tribunal to deal with a matter and may think it is much better that it should not do so, even though it would give the greatest attention to the fact that there is an objection to the matter being dealt with by it on the very ground the Minister sets out. The matter he sets out is just the sort of matter which you can rely on the tribunal to take into account at its discretion when deciding whether to send it back to the starting point. I refer to delay in this context. It is also just the sort of matter which the Court of Appeal, for example, will take into account in considering whether it will send a matter back to the Secretary of State or deal with it itself because it is in a better position to deal with it than anybody else.

[Lord Wallace of Tankerness]

My Lords, I hear the point which the noble and learned Lord makes. It is also important to recognise that we have to look at where this matter might best be dealt with. The Secretary of State can still consent to the new matter being determined within the context of the existing appeal. That is obviously an issue that the Secretary of State would have to consider in deciding whether or not to give that consent.

[Lord Woolf]

I again apologise for interrupting, but will the noble and learned Lord bear in mind that the Secretary of State in this context means the person who is conducting the case on behalf of the Secretary of State in the tribunal on the day of the hearing? If he has not already received instructions on how to deal with it, all he can do is ask for an adjournment so that the matter can be referred back to those who have more authority than he has to decide what course to take. That will mean that, inevitably, the ability of the court—or, in this case, the tribunal—to deal with it in a sensible and summary way is in fact not going to happen in practice.

[Lord Wallace of Tankerness]

My Lords, one of the examples given by my noble friend Lady Berridge was that a matter may suddenly be raised. It is important to make the point that we are not talking about the appellant relying on new evidence to support a ground already before the tribunal. I know that the noble and learned Lord accepts and understands that. For example, if there was an appeal about refusal of the family life settlement, new evidence on family life would obviously be something which could be led. Nor will the clause prevent access to the court, because the individual would still have an appeal against the refusal. If the new matter on which an application was made was refused, then obviously that matter could be appealed to the tribunal.

I note what the noble and learned Lord says, but my noble friend Lady Berridge talked about a new ground of appeal which the Home Office may have found out about only the night before. When people talk about equality of arms, I am not necessarily persuaded that someone going into the tribunal will find that there is a completely new ground of appeal which they only learnt about within the previous 12 hours. That is an inequality of arms. My noble friend and my noble and learned friend Lord Mackay of Clashfern commented on whether or not the Home Office had been answering the telephone. These are practical issues that ought to be addressed, but I do not think they go to the principle we are discussing.

I am always wary—as was the noble Baroness, Lady Smith—of using football analogies, but they were mentioned by my noble friend in moving her amendment. If an FA Cup match went to penalties, it would not be for one party to say, “By the way, we will just go to the referee and say, ‘If we are having a penalty shoot-out, it will do for the other cup tie that we are to play next week. We will just do the two in one’”. If it is a completely new case, it is not reasonable that that should happen. I stress that this is not a situation where a person is going to be denied the opportunity to bring a separate case on a new matter. They would still be able to bring it and, if they were dissatisfied with the decision made by the Secretary of State, the appeal route would still be open to them.

The proposed measure could create an incentive for appellants to raise new matters at a late stage because they could try to persuade the tribunal that the matter should be heard despite the Secretary of State not having considered and decided the issue. The Secretary of State will have to strike that balance, depending on whether or not she wishes to give her consent—if, indeed, the case was adjourned. Documents may suddenly have been produced the veracity of which the Secretary of State will have had no opportunity to examine. If it is a new ground of appeal, the Government argue that the primary decision-maker is the Secretary of State and the proper role of the tribunal is to hear appeals against a decision of the Secretary of State, if the applicant is dissatisfied with the original outcome. As the noble and learned Lord, Lord Hope, said, I do not see that that is a case of being a judge in one’s own cause because the cause that is properly before the tribunal is one in which both parties will argue their case.

When a new cause is introduced, the Secretary of State makes a decision on it through his executive function. What in fact is being suggested is that that decision should not be made by those from the executive branch but should be a judicial decision. I think that there is a blurring there. If we are arguing as a matter of fundamental principle that a decision is one for the Executive, the question is whether, indeed, the primary decision should be made by the judiciary. I cannot ignore the force of the comments that have been made. The noble and learned Lord, Lord Hope, helpfully suggested where this might be amended. I should make it very clear that I cannot give any guarantee that the Government will come back at Third Reading with an amendment. However, it is only proper that we reflect on the very important issues that have been raised.

Immigration Bill

Lord Woolf Excerpts

Monday 10th March 2014 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I suspect that we are rapidly moving into territory where everything has been said but not everyone has said it. Given that, I wanted to respond not only to the noble Lord, Lord Bourne, but also to my noble and learned friend Lord Wallace of Tankerness, who responded a week ago to Amendment 26 from the noble Lord, Lord Hannay, and my noble friend Lady Hamwee’s Amendment 80 to reassure us about the impact of the Bill. The fact is, though, that the Bill exacerbates the impact of previous policies towards overseas students. The noble Lord, Lord Hannay, and many other noble Lords have talked about the contribution to the UK economy and to soft power, while my noble friend Lord Phillips has talked about personal ties.

However, the hard figures already show a drop in overseas student numbers. My noble and learned friend Lord Wallace of Tankerness, and indeed the noble Lord, Lord Bourne, today, have taken comfort from the increase in Chinese students in particular in recent years, compared to Australia and France. If the riposte of the noble Baroness, Lady Warwick, and my noble friend Lady Williams was not enough, the recent British Council document Education in East Asia—by the Numbers (Making Sense of the Slowdown in Outbound Student Mobility from China) shows a global slowdown in outbound Chinese student numbers. This demonstrates that we cannot stand still and that we need to increase our share of Chinese students if the numbers are not to fall. That is the very latest document from the British Council.

We cannot take the risk of alienating aspiring students from China and other emerging markets. My noble and learned friend Lord Wallace said:

“We are still an attractive proposition for people wishing to come and study”—[Official Report, 3/3/14; col. 1192]—

but he himself admitted to us that a good story is not being told and it cannot be told with the Bill as it is. No one quarrels with measures designed to prevent abuse of the immigration system, but if we do not redress the impression—indeed, as the noble and learned Lord, Lord Hope, said, the perception—that students are not welcome, we will see more severe reductions in student numbers. What better way to counter that impression than to totally exempt overseas students from the Bill?

[Lord Woolf (CB)]

My Lords, the noble Lord, Lord Clement-Jones, indicated that nearly everything that people wanted to say has already been said. I am only too conscious that that is the truth, because the second of the two short points that I wanted to make has just been made by the noble Lord himself.

The reason why I think the amendment should be welcomed by the Government is that it is a signal that we do want students. I know a bit about the university world because for a time I was chairman of the council and pro-chancellor of London University and then chairman of the council of University College London. What is needed is something to point to so as to destroy the perception, which is undoubtedly increasing, that this country does not want students. If we made this exemption, when those who are attached to universities travelled the world to recruit students, as they do, they could respond to that perception by saying, “This is nonsense. Look at what we did in the Immigration Bill”—which by then would be an Act of Parliament—“and you can see that it takes a step which positively is favourable for students”. That would be a very important message.

I want to make a point that I do not think has yet been mentioned. Although I agree with everything that the noble and learned Lord, Lord Hope, has said, I fear that he was probably more economical with his time than I am being with mine and did not want to mention it, but if you travel to many parts of the world, as the noble and learned Lord and I have done, you find that in most countries you visit there are substantial numbers of former law students who are struggling to establish the rule of law there. The interest in the rule of law around the globe is growing all the time, and its importance in international affairs is being constantly demonstrated. The Statement we had today emphasised the importance of the rule of law. Students who have received a grounding in law in this country go back to their countries and are the champions of furthering the rule of law. So, again, it is right to say that we want to be able to make ourselves as competitive as possible in that regard.

Crime and Courts Bill [HL]

Lord Woolf Excerpts

Wednesday 12th December 2012 Lords Chamber

[Lord Taylor of Holbeach]

I think that would be counterproductive. If the noble Lord thinks through the circumstances of that question, he will understand that.

[Lord Woolf]

Am I right in thinking that this form of appeal from outside the country has been part of the immigration process for a substantial period? In addition, is it not the case that it can be a written process and that forms can be used for the purposes of the appeal?

[Lord Taylor of Holbeach]

The noble and learned Lord is perfectly correct in that regard.

Crime and Courts Bill [HL]

Lord Woolf Excerpts

Monday 28th May 2012 Lords Chamber

[Lord Woolf]

My Lords, it has been a great privilege for someone such as myself to be able to hear the previous speeches on the Bill. Some of the material that has to be considered is quite complex and not necessarily the stuff to excite one on a hot summer's afternoon if one is sitting in the garden faced with the attraction of a slumber. Previous speakers have shown a masterly understanding of the Bill and so I am not sure how much I can help the House. However, I would like to give the House some general reactions in consequence of my reading of the Bill, informed by the speeches that have gone beforehand, which have been of such a high quality.

I share in the general welcome for the Bill which I have detected. You address the parts of the Bill that cause you concern; you do not address those parts with which you are happy. The areas that have been focused on for that reason have been few but, none the less, are very important. Although I would not dream of following my noble and learned friend Lady Butler-Sloss in respect of family courts, I would indicate that I wholly agree with what she said about them. Perhaps what she said about family courts is, in generality, true also in relation to county courts. Courts work best if those in the courts have the fewest restrictions on their ability to handle cases in a way which is constructive and sensible. When you break courts down into too many parts you have to create divisions which do not help the administration of justice. A single court, like the family court, enables resources, which are so scarce today, to be devoted in the best way possible for the resolution of those very difficult issues that come before the family court.

I do not think that there is any need for concern about the status of High Court judges because, if the court is working properly, the judges will be chosen with care so that the cases that they deal with reflect their expertise, experience and ability. Cases are administered in a way that will enable the diet of a High Court judge to be distinct from that of judges in lower courts. What I have just said I think is particularly true in an ordinary civil case. Of course, we shall have to examine the detail but people really want their civil disputes resolved as economically, effectively and efficiently as possible. As I see it, at their heart, the proposals are trying to move forward in the right direction in that respect.

The areas to which I would want to make particular reference are those that deal with the changes to the appointment process, particularly in relation to the position of the Lord Chancellor. At the end of my judicial career in this country I had what I thought was probably the most important responsibility I had at any stage of my judicial career: trying to agree with the noble and learned Lord, Lord Falconer, a concordat which, when examined by the Select Committee, resulted in the Constitutional Reform Act 2005. As I understood it, the result of that process was to achieve a new relationship between the judiciary, the Executive and Parliament which would be in the interests of all concerned in the new situation that had arisen. Deeply involved in that process was the belief that we had now come to the stage when this country should follow most other countries that adopt proper democratic standards in recognising the need for the separation of powers. The change in the Lord Chancellor’s status—I would like to express my high regard for what successive Lord Chancellors achieved by way of appointment—meant that the role played by the Lord Chancellor would no longer be appropriate in the new situation that we were dealing with. In that situation it was decided that the Lord Chancellor's powers should be carefully curtailed and structured so that he could act as an important element in the appointment process but no longer have any role in making appointments. He was to have the ability to accept proposals of the new independent Judicial Appointments Commission, but he was to have no power himself to make proposals or to start off an individual’s appointment unless it had gone through the process prescribed by Parliament, and which brought the matter before the commission.

Here I would like to echo as forcefully as I can the very wise words of the noble Baroness, Lady Prashar, who has unique experience in running an appointments commission and successfully managed to confront very significant administrative difficulties in getting that process off the ground. I must disclose an interest here. I was one of the members of the appointments commission that appointed her. She herself was appointed by an independent process, as was each member of the commission. It was felt that the independence of the judiciary was critical and required that the best people available should be appointed. The process of appointment, although not known or properly understood by the public at large, should be one that in itself indicates independence. That is what we have achieved, and we have done it in a way much admired all around the globe by other jurisdictions which would like to have a process of a similar nature.

I say those initial words because the idea of giving the Lord Chancellor the ability to invite himself, so to speak, to be a member of the Judicial Appointments Commission—I am not quite clear from my reading whether it is the Lord Chancellor, the President of the Supreme Court or the Lord Chief Justice who can do this, but I may have overlooked something because others have said that it also applies to the Lord Chief Justice—is an inroad on the principle of the independent appointments process which the 2005 Act created. I submit that the Lord Chancellor would be right to get himself into a position where he is not performing the role which it is generally clear he is intended to perform, particularly in the case of the most senior judges. It seems strange that he should seek power with regard to those people. Under the current legislation, there is a power which requires him to be consulted. I just do not think it is realistic to assume that if he is consulted, he cannot exercise as much influence as he could if he were a minority member of the Judicial Appointments Commission. If the commission is not going to follow what he has indicated when consulted, why would it follow him if he is on the commission? I do not see that that is an advantage.

When one looks at the other powers that are going to be given to the Lord Chancellor by regulation—each one deserves careful examination—they seem to be inconsistent with his being a member of the Judicial Appointments Commission. He would be giving guidance to himself. That does not seem a very sensible arrangement. It is proposed that his powers be extended in various ways, and I suggest that his being given an increased role just does not match. I therefore suggest that the report on appointments that we received from the Constitution Committee of this House was absolutely right when it turned its face against the change in the position of the Lord Chancellor in this regard.

I hope that in summing up the Minister will be able to give us some assistance by telling us what he sees as the advantages of this. I emphasise “what he sees”, because I suspect that some of this comes from very senior members of the judiciary. If that is the case I am bound to say that I disagree with those views. I think we should keep to and not derogate from the general position indicated in the 2005 Act. Lord Chancellors come and go, and although it is a great and high office, one cannot assume that in the future there will not be a Lord Chancellor who, for reasons he or she thinks proper, will do things that really do not benefit the system. Giving a regulatory power in the terms proposed here seems to me to be extremely dangerous. I have indicated that I agree with the Constitution Committee’s report and I have indicated that I agree with the noble Baroness, Lady Prashar. Perhaps I should leave that subject now.

That leaves the other Part of the Bill. I am particularly interested in Clause 23, which deals with disposal in the community. Again, it is not more than a regulating power. I understand from what the Minister said in opening that in due course we are going to have the benefit of understanding what is in mind here. I am certainly not going to overlook the opportunity to persuade the Government to take the sort of actions which the noble Baroness, Lady Linklater, was encouraging them to do by expressing too much concern about the way the matter has been dealt with as part of the legislative process. Surely there must be caution in having a Bill where there are so many powers which by themselves cannot be understood or assessed because the Government themselves have not yet decided what to use them for. All they have done in the Bill is to enable the Government to put the flesh on the bones at a later stage. However, if we are going to discuss the matter appropriately, as we have done today, it is not very helpful not to know anything about the flesh.

I do not want to detract from my appreciation of the Bill by picking faults here, there and everywhere. That is much better left to Committee. I extend a general welcome to the Bill but I suggest that we must approach parts of it with caution. I share some of the concerns expressed about the introduction of cameras in courts. It could be beneficial but we should approach it with caution. It will be absolutely essential that the judge in court should be able to decide whether filming should be allowed after satisfying himself that it would be in the interests of justice that this should happen. I recognise that that will put a great burden on the trial judge.

My final point concerns diversity. The judiciary—and, to my knowledge, previous Lord Chancellors who had the power of appointment—strove to make our judiciary better reflect the society in which we operate. It is an extremely difficult exercise and should not be underestimated. However, giving a message—which is what the Bill does—that the legislature and those who are responsible for appointments consider it a good idea to have a test that is more favourable to accelerating diversity is certainly sensible. However, I am bound to say that I would have started not at the top but lower down. If there is another Supreme Court that allows its judges to work part-time, I know not of it. Again, perhaps the Minister will enlighten me when he replies. The work of a final court of appeal cannot easily be done three days a week, or with the sharing of labour. Many cases last all week—and if they do not, the judges start working on their judgments when the case finishes. If one judge cannot come and take part in that way, from a practical point of view I do not see how they will be able to make the sort of contribution that we want our diverse judges to make to the administering of justice. That is another matter that we should consider.