The noble and learned Lord has raised a number of very valid points in opposition to Clause 2. I offer another, in response to the noble Lord, Lord Faulks, who emphasises that there must be finality in litigation. The problem with that argument is that Clause 2 itself recognises the need for exceptions. New Section 11A(4) specifies exceptions, in particular for a
“fundamental breach of the principles of natural justice.”
In my Amendment 19, I suggest we need a further exception for where the Upper Tribunal has made a fundamental error of law. The noble and learned Lord, Lord Falconer, gave a number of examples where there may be important areas of law that raise fundamental issues that go to the safety of the individual who is going to be removed to a place where they may face persecution or torture. I for my part do not understand why a fundamentally unfair procedure is a greater mischief in this context than a fundamental error of law by the tribunal system. In each case, the Upper Tribunal and the Court of Appeal will have declined to intervene. If the judicial review route is nevertheless to remain open, as Clause 2 recognises, for fundamental procedural defects, surely it should remain open for fundamental substantive defects.
I accept of course, as again the noble Lord, Lord Faulks, emphasised, that there will be claimants with no legitimate point who seek to argue that they fall within the exception, but that is equally true of an exception for fundamental procedural defects. In any event, the answer to that concern is to ensure that any application for judicial review, whether of substance or procedure, is looked at and addressed by the judge on the papers and within a very brief time period.
9.15 pm
Unless the judicial review judge thinks there is something of merit in the complaint, it should be and will be thrown out very swiftly. Or to adopt the amendment
of the noble Lord, Lord Etherton, Amendment 23—which I hope he will speak to—would, as I understand it, make final a decision of the court of supervisory jurisdiction, thereby preventing any appeals. There are ways of dealing with the problem that does not involve preventing a litigant who does have a valid complaint, who can raise a substantial issue of law of a fundamental nature, and who is threatened with removal to another country where he or she is going to be persecuted or tortured from having the opportunity to make their complaint by way of judicial review. So, I agree with the noble and learned Lord, Lord Falconer. I too take the view that Clause 2, as presently drafted, is inappropriate.