Crime and Courts Bill [HL]

Lord McNally Excerpts

Monday 2nd July 2012 Lords Chamber

Moved by

[Lord McNally]

135: After Clause 19, insert the following new Clause—
“Transfer of immigration or nationality judicial review applications
(1) In section 31A of the Senior Courts Act 1981 (transfer from the High Court to the Upper Tribunal)—
(a) in subsection (2), for “, 3 and 4” substitute “and 3”,(b) omit subsection (2A),(c) in subsection (3), for “, 2 and 4” substitute “and 2”, and(d) omit subsections (7) and (8).(2) In consequence of the amendments made by subsection (1), section 53(1) of the Borders, Citizenship and Immigration Act 2009 is repealed.”

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, this amendment will remove restrictions contained in Section 31A of the Senior Courts Act 1981. It will enable applications for or permission to seek judicial review in immigration, asylum and nationality cases to be transferred from the High Court in England and Wales to the Upper Tribunal.

As noble Lords will be aware, this House has considered this issue before. In 2009, the House thought it appropriate to allow the High Court to transfer fresh claim judicial reviews to the Upper Tribunal. These are judicial reviews that relate to a refusal by the Home Secretary to treat further submissions as fresh asylum or human rights claims on the basis that they are not significantly different from the material previously considered. These cases have been heard in the Upper Tribunal since October 2011 and the process is working well. This amendment would potentially enable any class of immigration, asylum or nationality judicial review to be heard in the Upper Tribunal.

The further categories of cases that would be transferred to the Upper Tribunal would have to be set out in a direction, or directions, made by the Lord Chief Justice with the agreement of the Lord Chancellor under the provisions in the Constitutional Reform Act 2005. We envisage that the transfers will take place in a staged fashion to increase slowly the types of judicial review dealt with by the Upper Tribunal. The ability to transfer such cases would play an important role in improving access to justice. Immigration and asylum judicial review cases currently form a high proportion—around 70%—of the caseload in the administrative court. The total number of these cases has doubled in the past five years, with around 8,800 being received in 2011. Many of these cases are relatively straightforward. This volume of cases is unsustainable for the administrative court. It keeps High Court judges from other complex civil and criminal cases that they should be hearing. It has created a backlog and has added to waiting times for all public law cases heard by the administrative court.

I recently met the president of the Queen’s Bench Division and the president of the Upper Tribunal immigration and asylum chamber to discuss the progress that has been made in the Upper Tribunal since it was created in 2010. I am persuaded that it now represents the most appropriate venue for the majority of judicial reviews of this type. As the avenue for appeals against a decision of the First-tier Tribunal, the Upper Tribunal deals with thousands of appeals each year. Since acquiring this jurisdiction it has received nearly 200 fresh claim judicial reviews, which have been dealt with more quickly. Fresh claim cases are on average dealt with in seven weeks, compared to an average of 11 weeks for the administrative court. This has not been at the expense of quality. The judges who sit in the Upper Tribunal have a high level of expertise, particularly in relation to in-country conditions and human rights implications, and are regularly joined by judges of the administrative court.

The Upper Tribunal’s expertise in the field of asylum and country guidance cases has been recognised by the higher courts in the UK and the European Court of Human Rights. It is able to make well informed decisions that will deliver justice in these types of judicial review cases, in the same way as the High Court has done in the past. I beg to move.

[Lord Avebury]

My Lords, this amendment would allow judicial reviews of immigration and asylum cases and nationality matters to be transferred from the High Court, where judicial review is currently heard, to the Upper Tribunal, as my noble friend has explained. To many of your Lordships, this must feel like Groundhog Day. Parliament made clear its views on whether JRs should be transferred from the High Court into the tribunals once in 2007, during debate on what is now the Tribunals, Courts and Enforcement Act 2007, and again in 2009, during debates on what is now Section 53 of the Borders, Citizenship and Immigration Act 2009. It has said no and has said so powerfully. The arguments against the Upper Tribunal being entrusted with this responsibility still hold good.

The 2007 Act established a new regime, bringing together several tribunal jurisdictions into one structure comprising the First-tier Tribunal and the Upper Tribunal, or UT for short. The Act allowed for the transfer of certain JR applications from the High Court to the UT but, as a result of amendments made during its passage, excluded immigration and nationality JRs from the cases that could be transferred. Parliament returned to this matter, as my noble friend has reminded us, in 2009 during debates on the then Borders, Citizenship and Immigration Bill and again rejected a proposal that would permit the wholesale transfer of immigration and nationality JRs.

The compromise reached was that a JR concerned with a decision on a fresh claim for asylum—that is, one made after an earlier claim and any appeals against its refusal had finally been rejected—was made transferable. Since 2009, the once separate Asylum and Immigration Tribunal has been transferred into the two-tier structure, with an immigration and asylum chamber in the First-tier Tribunal and in the UT. Meanwhile, on a case-by-case basis, the High Court has transferred a few JRs against local authorities concerning the age of separated children seeking asylum to the UT where they have ended up in the immigration and asylum chamber. However, age-dispute JRs can be transferred because they are not decisions about immigration or nationality and are therefore not affected by the 2007 Act. These cases start in the administrative court, but can be transferred to the UT on a case-by-case basis. There have been only four reported cases to date.

Fresh-claim JRs are transferred as a class. There are no reported cases yet and only one case that the tribunal was to hear. The UT has no experience of hearing JR cases so there is no way of assessing whether it is likely to cope well or badly with them. Meanwhile, although there is power to transfer fresh-claim judicial reviews from the Outer House of the Court of Session in Scotland to the UT, that power has never been exercised. I can do no better than cite the comments of the late Lord Kingsland on Report on the Tribunals, Courts and Enforcement Bill. He said,

“first, the Government have broken their promise to your Lordships’ House not to introduce primary legislation permitting the transfer of judicial review matters in asylum and immigration cases until we have sufficient evidence that the system for judicial transfers in other classes of case are working well. Secondly, the Opposition and the noble Lord, Lord Thomas of Gresford, would be extremely unhappy to permit such transfers unless we were satisfied that the transferred AIT single-tier regime to the Upper and Lower Tribunals did indeed have the effect of leading to much fairer and more timely decisions, thus reducing substantially the overall number of judicial review cases … Thirdly, as I have indicated, judicial review is a crucial component in the struggle to protect the individual. Many of these cases raise issues, at best, of the freedom of the individual and, at worst, of torture and death. It is vital that it remains open to someone in such cases to have the application heard by a High Court judge”.—[Official Report, 1/4/09; cols. 1126-27.]

There is no such evidence yet. Powers to transfer JRs into the UT are being sought when it has done only a handful of age assessment cases and has not built up any track record whatever in dealing with fresh-claim JRs. High Court judges have sat in the UT, but there are also judges in that chamber who were adjudicators and special adjudicators of the former Immigration Appellate Authority and its successors. They have never heard cases outside the immigration and asylum tribunal jurisdiction, but the amendment would allow them to deal with JRs on which they have zero experience.

Speaking for the then Government in 2007, the noble Baroness, Lady Ashton of Upholland, accepted that JRs in immigration cases were particularly sensitive. The point was underlined by a forceful observation from the noble and learned Baroness, Lady Butler-Sloss, in Grand Committee in 2006. She said:

“I support my noble and learned friend Lord Lloyd of Berwick in relation to the requirement to have someone of the level of a High Court judge to hear a judicial review in the tribunal. It would be invidious for there not to be a judge of that rank dealing with it. I support my noble and learned friend very strongly”.—[Official Report, 13/12/06; col. GC 68.]

Then there was the noble and learned Lord, Lord Lloyd of Berwick, who said at Second Reading of the Borders, Citizenship and Immigration Bill:

“If the effect ... is that the administrative court would be bound to transfer judicial review applications in all immigration cases, I would be strongly opposed to it”.—[Official Report, 11/2/09; col. 1142.]

The then Minister, the noble Lord, Lord West, winding up that debate, said that,

“the senior judiciary are very supportive of the clause”—[Official Report, 11/2/09; col. 1211.]

that is, the clause providing for the transfer—which he said was shown by the responses of the President of the Queen’s Bench Division, the Master of the Rolls and the Senior President of Tribunals to the consultation on immigration appeals. However, the Master of the Rolls had merely indicated that he supported the views of the President of the Queen’s Bench, who in turn stated that proposals for transfer of JRs in general were welcome, but emphasised that:

“Some of them are plainly suited to the Administrative Court and should remain there”.

The Senior President of the Tribunals agreed with him. The Court of Session judges did not welcome the proposal. They said that,

“any decision as to a more general transfer of judicial review jurisdiction in this area—

immigration—

“should be made only once the Upper Tribunal has gained extensive experience of implementing its proposed remit”.

No such extensive experience has been gained. Others, including the Immigration Law Practitioners Association, the Constitutional and Administrative Law Bar Association, the Glasgow Immigration Practitioners’ Group, the Law Society, the Refugee Legal Centre, the Refugee Council and individual lawyers, have expressed views similar to those of the judges of the Court of Session.

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[Lord McNally]

My Lords, I am very grateful to the noble Lord, Lord Beecham, for that indication of the Opposition’s support for this amendment. I gladly give him, and the noble Lord, Lord Avebury, an assurance that what we are doing will be kept under review in close consultation with the judiciary.

It is true that this matter was discussed in 2009, as the noble Lord, Lord Avebury, said, but we have now had three years’ experience of the workings of the Upper Tribunal in these areas and we have also had representations from the senior judiciary about how the present system is clogging up the High Court and bringing some of the pressures to which the noble and learned Lord, Lord Woolf, referred.

I have not taken lightly the decision to bring this back to the House. In a meeting, the president of the Queen’s Bench Division and the president of the Upper Tribunal convinced me of two things: first, that we would be taking some pressure off the High Court and High Court judges by doing this; and, secondly, that by moving these cases to the Upper Tribunal we would in no way diminish the quality of justice available. On the contrary, as the noble and learned Lord, Lord Woolf, indicated, a great deal of the expertise for judging these cases is in the Upper Tribunal.

I take the point that the noble Lord, Lord Avebury, made about the UK Border Agency’s withdrawals. There are varied reasons for cases being withdrawn but, coupled with other government reforms, we are getting a better system for dealing with these cases from the UKBA. The senior judiciary is broadly in favour of the amendment as a sensible solution to the backlogs in the High Court and an opportunity to transfer cases to the most appropriate part of the justice system. There has been strong judicial involvement in the discussions preparing for this amendment, and the judiciary is keen to ensure that it is successfully introduced. As the noble Lord, Lord Beecham, said, the Lord Chief Justice will be closely involved with the Lord Chancellor in gauging the pace of movement on this so that we get the twin benefits of faster, efficient, high-quality justice in immigration cases and some elbow room in the High Court to deal with the important cases that the noble and learned Lord, Lord Woolf, mentioned.

I hope the noble Lord, Lord Avebury, will be content to take those assurances and to accept that this decision has been taken on the basis of the experience of the past three years, which we believe is entirely favourable to the move that we are making. That is coupled with the assurance that we will keep the matter under review and will be in close contact and consultation with the senior judiciary to ensure that the move is completely in keeping with the access to good justice that is the aim of this amendment.

[Lord Avebury]

My Lords, can my noble friend answer the question I put to him about how many cases were withdrawn by the UKBA—to correspond with the figures I gave for 2006 and 2007? If a very large number are being withdrawn, and thus the UKBA is conceding that the original decision was wrong, surely that proves that there are other methods of reducing the pressure on the High Court rather than transferring all these cases to the tribunal.

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[The Earl of Sandwich]

My Lords, I am not sure that the Minister answered the point made by the noble Lord, Lord Avebury, about the relative inexperience of the Upper Tribunal in immigration. He quotes the wise and the good, and we have heard from the noble and learned Lord, Lord Woolf, but surely we are not making a decision on the basis of advice only but on the actuality of the court over the period.

[Lord McNally]

The point was made that the Upper Tribunal over the past three years has demonstrated very clearly that it has both the experience and the expertise to deal with these matters. The Upper Tribunal’s expertise in reducing backlogs in the Administrative Court has been demonstrated. I do not have the most up-to-date figures on UKBA withdrawals, but in my closing remarks I accepted that one issue was the UKBA’s tendency in the past to withdraw objections. Reforms that are being taken forward by my right honourable friend the Home Secretary aim to deal with some of those criticisms of the UKBA.

However, that does not take away the central thrust of this proposal that since 2009 the Upper Tribunal has shown itself to be working well, and we are not rushing our fences in this case. Both the Lord Chancellor and the Lord Chief Justice will be closely involved in gauging the movement of cases to the Upper Tribunal, but no one has seriously doubted its competence or expertise to deal with these matters. On the contrary, it has shown itself to be remarkably efficient at cutting time for dealing with cases, which must be in the interests of justice.

Amendment 135 agreed.

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Moved by

[Lord McNally]

136: Schedule 13, page 202, line 33, after “Wales)” insert “or the President of Employment Tribunals (Scotland)”

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Moved by

[Lord McNally]

137: Schedule 13, page 203, line 39, leave out “1” and insert “2”

[Lord McNally]

My Lords, these amendments all relate to the provisions on the deployment of the judiciary. Of particular note is Amendment 140, which introduces an emergency procedure regarding the appointment of deputy judges of the High Court when there is an urgent need to do so. The Bill introduces a Judicial Appointments Commission process for appointing deputy High Court judges and authorising circuit judges and recorders to sit in the High Court. This is an important reform to increase transparency regarding these appointments.

Amendment 140 would deal with situations where there is an urgent and unforeseen demand for a deputy High Court judge and it is not practicable to draw on any judges of the High Court or any of those who have been selected previously by the Judicial Appointments Commission, or to deploy any other judge who is authorised to sit in the High Court or Crown Court in the time available.

The amendment inserts new Section 94AA into the Constitutional Reform Act 2005. The purpose of this new section is to specify clearly circumstances in which the normal Judicial Appointments Commission selection exercise may not be applied in the appointment of a deputy judge of the High Court for a definite period. This may be needed in exceptional circumstances, such as a number of judges being unwell or suffering some other unexpected misfortune, meaning that a particular area of expertise is required at short notice. The amendment specifies what criteria must be applied if the Judicial Appointments Commission is not to select deputy judges of the High Court. It also clearly limits the duration of the appointment to the disposal of the particular business that gave rise to the use of the power.

Amendment 145 inserts a new Part 3A into Schedule 13 of the Bill. The new part deals with the deployment of judges to the Court of Protection. Our new deployment policy has been applied in this jurisdiction and all judicial officeholders are now able to be nominated to sit in the Court of Protection, including deputies and temporary appointees. Of course, in this and all jurisdictions, judges may be deployed only if the Lord Chief Justice determines that the judge possesses the necessary expertise and experience and deems in all other circumstances that it is appropriate for that particular judge to be deployed to that specific jurisdiction. In this jurisdiction, there has been a particular difficulty in ensuring that the court is fully resourced with judges that have the necessary skills and ability to hear these complex and often difficult matters. The amendment enables the Lord Chief Justice to provide appropriate judicial resources from a broader pool of candidates; it also widens the group of judges who can be appointed to act as the senior judge of the Court of Protection, handling certain administrative functions to that court.

The other amendments in this group on judicial deployment are either consequential or drafting amendments to ensure that we have made all the necessary changes and adjustments to Schedule 13 of the Bill. I will not detain the Committee further with this group of amendments, but I can provide further details of these amendments if needed. I beg to move.

[Baroness Butler-Sloss]

Perhaps I could ask the Minister what may be a rather stupid question. Unfortunately, I do not have the Mental Capacity Act in front of me, but I assume that the President of the Family Division and the judges of the Family Division and the Chancery Division are still on the list of those who will be trying these cases, as they are usually the judges who do it.

[Lord McNally]

I tread on very thin ice, but I think that I can assure the noble and learned Baroness that that is the case. If not, I shall make sure as soon as possible that the Committee knows that I am wrong.

[Baroness Hamwee]

I want to ask my noble friend a question about Amendment 140. He described the circumstances and need for flexibility in the ability to appoint temporary High Court deputy judges. I would like to ask about the business for which they would be needed, in proposed new Section 94AA(2)(a), which refers to both an “urgent need” and the “disposal of particular business”. He mentioned the need for special expertise, but has he any further examples of what the “particular business” might be? I take it that we are not being asked to agree to temporary appointments to deal with urgent business per se. It is the term “particular business” that interests me. I could have pictured this clause better if it did not refer to “particular business” but to “business” in general. I am sorry that I did not give the Minister notice of the question. He may wish to come back to it at a later point.

[Lord McNally]

I, too, am rather sad that my noble friend did not give me notice of the question. I am pleased that we are bringing in a role for the Judicial Appointments Commission in the appointment of deputy High Court judges. To put it bluntly, there was a suspicion in some areas that the appointment of deputy High Court judges was the last surviving remnant of the “tap on the shoulder” system of appointments. Therefore the proposals to bring the appointments commission into the process are important.

However—I say this in the presence of the noble and learned Lord, Lord Woolf, with all his vast experience—we were determined not to put the Lord Chief Justice of the day into a straitjacket. He has to be responsible on a day-to-day basis for deploying the judiciary and, if there is a need to appoint a deputy in an emergency, we should have the ability to do so. Hence, in introducing the provision, there are many references to exceptional circumstances and a definite period so that this emergency procedure would not lead, again, to a way of appointing deputy High Court judges by a tap on the shoulder. It leaves the Lord Chief Justice of the day with the wriggle room to deploy efficiently but makes sure that the main appointment of deputies now comes within the ambit of the Judicial Appointments Commission.

As for specific examples, the best I can do is to write to my noble friend giving her some examples, which I hope will reassure her. I shall, of course, put a copy of the letter in the Library of the House for the benefit of the Committee.

[Baroness Turner of Camden]

Fairly recently I asked questions in the House about employment tribunals and I was told by the Government that an investigation into them was currently proceeding and that we would be told the results in due course. Does the change of title listed in Amendment 146 from “chairmen of employment tribunals” to “Employment Judges” form part of that general investigation?

[Lord McNally]

Yes, my Lords, it is part of the general process of reform at both the tribunal level and in other parts of the judiciary. So there will be employment judges from now on.

[Lord Thomas of Gresford]

Perhaps I may help my noble friend by illustrating the kind of particular business there could be. In the old days it was not so much a tap on the shoulder as a ring-round by the Lord Chancellor’s Department to find someone who could go and do particular cases on very short notice. I recall being asked to go to Leeds with the inducement that I could stay in the judges’ lodgings—not much of an inducement, I may say—to try three large medical negligence cases. They said, “Don’t worry, they’ll all settle”. In fact, they all stood up. That is the sort of instance when counsel on both sides are all ready to go ahead on a fixed date but there is no High Court judge to take it. Everybody assumes that the cases will settle but they do not.

[Lord McNally]

Not for the first time when I find myself out on the thin ice, my noble friend supplies a plank for me to walk back to dry land. I thank him for that intervention.

[Lord Beecham]

I am glad that the noble Lord is not emulating Rasputin in terms of his trips across the ice.

The Opposition do not take issue with the amendments but it is interesting that in a move to simplify the system we have a complex series of amendments. They add several pages to Schedule 13. By sheer chance today, a Mr Patrick O’Brien, a research associate of the Constitution Unit, has written a blog—I suppose that is what it is—about the issue of judicial appointments under the Bill. He makes the point:

“The new system in its entirety will, if anything, be even more complex than the present arrangements. It will be a hydra with three heads—the Lord Chancellor, Lord Chief Justice and the Senior President of Tribunals (and indeed five heads if you include the formal roles of the Prime Minister and the Queen), all of whom will have roles in approving appointments of various types—and at least five variants of appointment commissions/panels in addition to the JAC. There is the potential for further variations on these commissions/panels though the use of regulations. As things stand, the use of regulations in the Bill adds complexity and uncertainty to the CRA rather than removing it”.

Can the noble Lord give an indication of when, if at all, regulations will be introduced and what they might cover? Mr O’Brien goes on to say: “The CRA”—Constitutional Reform Act—

“is not just addressed to civil servants”—

or Members of your Lordships’ House or indeed the other place. He continues:

“It has constitutional significance and”,

should be,

“comprehensible to the general public”.

The noble Earl, Lord Attlee, referred to improvements in satnav technology when he was answering a Question on transport earlier. The implication of Mr O’Brien’s article is that we need the equivalent of satnav to navigate through this complex field of appointments. Having said that, we do not object in principle but it would be helpful if a guide were available to the public as well as to the practitioners so that they can see how the new system is supposed to work. Again, as with the previous amendment, I assume that the Government will be monitoring developments and will ensure that problems are dealt with in due course.

[Lord McNally]

My Lords, I am extremely grateful to the noble Lord, Lord Beecham, for his indication of support and for some sensible suggestions that I hope will assist the Committee. We will be publishing draft regulations before Report. The idea of a simplified guide on how these will impact is very sensible and I will take that back to my right honourable friend the Lord Chancellor. Amending existing legislation can be extremely complex when fitting in new proposals to existing legislation.

The noble and learned Lord, Lord Falconer—I was going to say my noble friend—along with the noble and learned Lord, Lord Woolf, showed a certain pride of authorship in the new disposition of our legal system after the reforms of the earlier part of this century. What we are trying to do, in our different ways, is build on reforms that have given us an effective system. These include promoting greater diversity in our judiciary. As we were discussing the other day, we are also conscious of the important nexus of the system, with the President of the Supreme Court, the Lord Chief Justice and the Lord Chancellor.

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Moved by

[Lord McNally]

138: Schedule 13, page 203, line 41, leave out “Chancellor” and insert “Chief Justice”