Borders, Citizenship and Immigration Bill [HL]

My Lords, I shall be moving not Amendments 56 and 56A but rather Amendment 56B in my name and that of the noble Lord, Lord Thomas of Gresford. The noble Lord, Lord Thomas, is unable to be with your Lordships today, for compelling reasons, and has asked me to try to represent his views as faithfully as I can. The amendment tabled by the noble Lord, Lord Lester, in itself, for all the reasons that he has given, is wholly admirable and, if we ignore the text to which it is added, totally acceptable. Indeed, it is identical to proposed new subsection (4) in our own Amendment 56B. However, for reasons that will become plain if one glances at proposed new subsections (1) and (2) of our amendment, the text of Clause 52 to which the amendment tabled by the noble Lord, Lord Lester, relates is quite unacceptable to us. For these reasons, we cannot support the amendment. The Tribunals, Courts and Enforcement Act 2007 permits the transfer, as I trust your Lordships are now aware, of certain judicial review applications from the High Court to the Upper Tribunal. During the passage of the legislation through your Lordships’ House, the Government accepted that further primary legislation was necessary before immigration and asylum matters could be so transferred. As I indicated in Committee, they made clear their reason for taking this course, which was that proceedings in these cases, unlike in other tribunal cases, often give rise to disputes over internationally binding principles concerning the right to liberty, the right not to be put at risk of torture and the right not to be placed in danger of undergoing cruel and unusual punishment or capital punishment. The noble Baroness, Lady Ashton, stated, during the passage of the 2007 Act, that, before introducing further primary legislation to allow transfer of judicial review applications in respect of asylum and immigration cases, the Government wanted to see how the new regime would work. The Government are in plain breach of that undertaking. This Bill was introduced, containing Clause 52, almost simultaneously with the opening of the Upper Tribunal for business. The Government have had no time at all to consider the appropriateness of allowing the transfer of judicial review cases from the administrative court to the Upper Tribunal. As I said in Committee, I regard what is now Clause 52 as a straightforward breach of faith with your Lordships’ House. In Committee, I also allowed myself to speculate as to why the breach of faith had occurred. There seems little doubt that pressure from the High Court judges in the administrative court has played an important part. Such statistics as are available suggest that as much as 70 per cent of the court’s resources are dedicated to asylum and immigration matters. However, unless there is a fundamental reform in how the existing Asylum and Immigration Tribunal operates, the only consequences of passing these matters to the Upper Tribunal will be to create a similar problem there. The pressures of which the administrative court is making us aware are—again, as I ventured to suggest in Committee—the symptom of a deeper malaise: the failure of the AIT to make fair and timely decisions. The main, although not the only, reason for this was the decision of the right honourable gentleman, Mr David Blunkett, the then Home Secretary, to change from a two-tier AIT to a single-tier system in 2004. Of course, the judiciary’s concerns, which have been well explained by the noble and learned Lord, Lord Lloyd, have to be taken seriously, especially when they are endorsed by the Lord Chief Justice. However, we sit here not as judges but as Members of Parliament. Pressure of work on the High Court Bench is indeed a relevant consideration and should be granted considerable weight, but other considerations have to be weighed in the balance, too. In particular, 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. This raises myriad issues, such as the rules of procedure of the new regime, the prompt respect of those rules by the Home Office, the quality of judges in the Lower Tribunal and the role of lay members. 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. The Minister kindly wrote to me on 27 March, seeking, quite properly, to allay my fears. In essence, he says that government Amendment 62A requires, "““the provision on the mandatory transfer of classes of cases of judicial review to be commenced by affirmative resolution order””." The decision to specify a particular class is delegated to the judiciary, with the approval of the Lord Chancellor. The noble Lord encapsulates what he has done in another paragraph. He adds that he did, "““not believe that we should restrict the classes of case that may be suitable for mandatory transfer on the face of the Bill as this would require primary legislation before any additional classes of case could be added beyond those that could be identified now””." In another paragraph, the Minister states: "““Our amendment would require Parliament to have the opportunity to consider whether the time is right for the mandatory transfer of classes of case before the power is commenced””." I hope that the Minister will not mind my observing that the letter is as significant for what it omits as for what it contains. There is no reference to the undertaking given by the Government in 2007 not to introduce primary legislation on this matter at all until sufficient time had elapsed for us to consider the success or otherwise of the transfer of other classes of judicial review to the Upper Tribunal. There is no apparent understanding of the likely consequences of what will, one hopes, be a vastly improved AIT regime, following its transfer to the tribunal system, on the reduced need to transfer judicial review cases, which prima facie ought to remain in the High Court. Again, there is to be blanket approval by order for all classes of case regarded by the judges as suitable for mandatory transfer. Finally, there is the assertion that Parliament is protected because none of this can happen without its approval through the mechanism of an affirmative order. It is this last consideration that leads me to the amendment tabled by the noble and learned Lord, Lord Lloyd. That amendment goes further than that of the noble Lord, Lord West. In particular, the noble and learned Lord, Lord Lloyd, requires that each class of case proposed to be transferred should have a separate, positive approval by both Houses of Parliament. In itself, that is a welcome advance. However, in common with the proposal of the noble Lord, Lord West, the involvement of Parliament is by delegated, not primary, legislation. The amendment tabled by the noble and learned Lord, Lord Lloyd, is a characteristically thoughtful and elegant attempt to solve the problem. We would support it were it not for one matter: it allows the transfer of asylum and immigration judicial reviews to the Upper Tribunal by affirmative order. The noble and learned Lord, Lord Lloyd of Berwick, and perhaps many of his Cross-Bench companions, enviably, as far as I am concerned, feel free to vote against unamendable delegated legislation. The Opposition do not; we regard ourselves as bound by constitutional convention to vote against affirmative orders only in the most rare and exceptional circumstances. I am not at all confident that, when the affirmative orders of the noble and learned Lord, Lord Lloyd, come to be voted on, they would be classified by the Leader of the Opposition as falling into that category. In short, the noble and learned Lord’s amendment provides us with no protection against inappropriate transfers. Therefore, we cannot, I fear, support it. I express the same sympathy as the noble and learned Lord kindly did to me about the consequences of that conclusion. I referred earlier to the weight that Parliament should give in all the circumstances to the plight of the administrative court judges. In his letter to the noble and learned Lord, Lord Lloyd of Berwick, of 12 March, the Lord Chief Justice made a special plea to Parliament to allow the speedy transfer of a class of judicial review applications described as ““fresh claims applications”” made under Rule 353 of Immigration Rules. He pointed out, as did the noble and learned Lord, Lord Lloyd, that in 2008, 76 per cent of these applications were refused on paper. A small number then proceeded to an oral hearing. Most of these were refused permission to apply for judicial review. In the end, only 12 substantive judicial review cases were held. Out of the approximately 3,000 asylum and immigration judicial review cases lodged in the administrative court annually, fresh claims applications under Rule 353 comprised no fewer than 1,000. We found the case made out by the Lord Chief Justice for a transfer of this class of case compelling, and subsections (1) and (2) of our Amendment 56B reflect that conclusion. I have already explained why we cannot support the amendment tabled by the noble Lord, Lord Lester, in the particular context in which it is introduced. However, subsection (4) of our amendment, in identical terms to the text proposed by the noble Lord, Lord Lester, demonstrates that we wholly support its substance. As the noble Lord has explained, there are powerful reasons why the existing test for appeals from the AIT to the Court of Appeal should remain. First, there will be applicants who face the prospect, if deported, of returning home to torture and perhaps even death. Moreover, the Upper Tribunal, in reaching its decision, will frequently have to grapple with submissions concerning often complex points of international law under the European Convention on Human Rights or the refugee convention. Therefore, it would, in my submission, be wrong for an appellant from the Upper Tribunal to be denied the opportunity of going to the Court of Appeal in circumstances where that court adjudges an appeal to have a real prospect of success.