Border Security, Asylum and Immigration Bill

Lord Gove Excerpts

Report stage
Wednesday 5th November 2025 Lords Chamber

[Lord Katz (Lab)]

My Lords, I am grateful to all those who have taken part in this short but focused debate. Like the noble Lord, Lord Murray, I hope that we do not see too many fireworks during the course of my response. It is good to be able to debate the matter with him and the noble Lord, Lord Faulks. I would add that, although he may not be very pleased with what I am about to say, I am very pleased, as I think we all are, to see the noble Lord, Lord Alton, back in his place following his accident.

I fully understand the motivation of the noble Lord, Lord Murray of Blidworth, in tabling this amendment. I will set out the Government’s position and I hope that noble Lords will appreciate why we are taking the position that we are. To be absolutely clear, the Government place the highest priority on ensuring that openness and transparency are at the heart of our justice system. They are also at the heart of the judiciary’s work, demonstrated in particular by the establishment of the Transparency and Open Justice Board by the Lady Chief Justice last year to, as she said,

“lead and coordinate the promotion of transparency and open justice across the courts and tribunals of England and Wales”.

Understanding the clear public interest in this area, work to consider the publication of all immigration and asylum chamber decisions began some months ago. Discussions between the Ministry of Justice, His Majesty’s Courts and Tribunals Service, and the judiciary are ongoing. It would therefore not be appropriate to comment further at this time. I can confirm that, in principle, the judiciary supports the publication of judgments. However, at this point it is important to restate, for the sake of comity between different arms of the state, that this really is a matter for the judiciary and something that Parliament has very rarely legislated on.

The noble Lord, Lord Murray, mentioned, as he did when we discussed this in Committee, that Lower-tier Tribunals will publish their judgments. In response to that I can say that each chamber takes its own approach; some publish and some do not. Generally, chambers that handle sensitive matters, such as immigration but also mental health and special educational needs, have tended not to publish their decisions for what I would hope might be obvious reasons. However, it is clear that the Upper Tribunal is a superior court of record, giving it a similar status to the High Court, which means that its decisions can set binding precedents and are enforceable without further intervention. Because of this, transparency and accessibility are essential, and reported determinations are routinely published, whereas First-tier Tribunal decisions will, in practice, be more closely tied to the facts of a specific case and therefore be of more limited utility to those journalists or academics who wish to examine them.

I note, putting aside some of the technical deficiencies in the amendment, that the First-tier Tribunal does not make judgments but gives decisions. Let me be clear that this is not a straightforward proposal. Any decision to publish all FTT IAC decisions is not about operational cost and resource implications. From additional administrative resources to judicial training, substantial work would be involved in publishing decision notices and written reasons for all decisions, of which the First-tier Tribunal currently delivers approximately 2,500 per month. This includes thousands of decisions without reasons that are published every year, which would be fairly otiose—really just replicating the outcome of that decision.

It is important to note that publication requires judges to consider whether personal details need to be removed from a decision, or even whether an anonymity order is in place, and we would expect an increase in applications for anonymisation to be received. We would expect additional judicial training to be required. Also, decisions in the IAC can be delivered orally. Publishing these would involve an administrative process and judicial oversight, with an impact on the capacity of the tribunal, as I said. To conclude, the Government maintain our view that primary legislation is not necessary.

[Lord Gove (Con)]

I sympathise with the Minister, because obviously the judiciary has reassured him—or perhaps not reassured him but told him—that this will add to its burden. But given the clear view across this House that it is in the interests of strengthening confidence in our system, might he have a word with the judiciary and point out that this Bleak House-style obscurantism on its part does not foster confidence in the judiciary in the way that every part of this House would wish to see?

[Lord Katz (Lab)]

I thank the noble Lord for his intervention, but I am not sure it is really my position to go around having a word, as he put it, with any members of the judiciary, or indeed, that of any member of the Government to be having a word with members of the judiciary, because we quite like its independence. However, as I said, there are discussions going on between HMCTS, the MoJ and the judiciary about publishing, and in principle the judiciary supports the publication of judgments, but it is in its hands, and it is appropriate that it is its decision to make. That is because we value the rule of law in this country, and part of the rule of law is that we have an independent judiciary.

As I was saying, we still believe, as I said in Committee, that primary legislation is not necessary to effect change in this area, and such a change would be most appropriately delivered through non-legislative means or in procedural rules. In the meantime, members of the media can apply to the tribunal for a copy of written reasons in a specific case. Decisions of the immigration and asylum chamber of the Upper Tribunal, which determines appeals against First-tier decisions on points of law, as I have said, are already routinely published online, and those are the ones that are of most interest and saliency when it comes to understanding the evolution of immigration to this country. Given that explanation, and also, I hope, the understanding that there is a process to consider publication going on, I ask the noble Lord, Lord Murray, to withdraw his amendment.