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There is a point of principle involved here: the taking of powers out of the hands of the judges and putting them into the hands of the state is something to be avoided whenever possible. Quite a number of respected non-governmental organisations thought that clause 80 was unfair and wrong in principle. The debate that we had on, I think, 21 May illustrated just that. One or more of the NGOs have pointed out that the clause made the Secretary of State judge and jury in his own cause.
I asked the Minister during that debate whether it could really be right that a junior caseworker could make a decision and then say, "I certify that this decision cannot be appealed against to any judicial person." I asked why an amendment could not be tabled allowing the same certification to be made by an adjudicator rather than the caseworker. The response that I received from the Minister was that if such an amendment were allowed, it would take up more of the adjudicator's time. That is exactly what it would do, but what is wrong with that? Adjudicators are meant to spend time deciding tricky legal issues, and more and more are being appointed. It is not on for the Minister simply to respond by saying that this would be administratively inconvenient.
Let us look again at exactly what clause 80 is telling us. It says that a junior official, who is not qualified, can make a decision and then certify that that decision cannot be appealed against on the grounds there set out. That is what the clause says. That is the end of the story, so far as any judicial involvement is concerned. Is there anybody in the House of Commons who thinks that that approach is fair?
Mr. Coleman: I have been listening carefully to the hon. Gentleman, and he has made a compelling case for opposing the clauses before us this evening. Bearing in mind all that he has said, and the strong case that he has made, will he tell the House why he and his hon. Friends will be voting with the Government this evening?
Mr. Malins: The short answer to that is that, quite often in life, we look to the other place to make progress on our behalf. We often find clauses in a Bill, or clauses that are given to us rather later, with which we agree in part, but with which, in principle, we might have some problems, no problems or a lot of problems. Those matters are not as simple as that, and the truth is that, on appeals, the Government are dealing with certain issues on which we offer some support and sympathy for their approach while on others we remain unhappy.
The hon. Gentleman will share my unhappiness with the fact that the new clauses and some matters that we are discussing tonight landed on our desks yesterday afternoon. That is no way to do business. He is a man who approaches those topics with some knowledge and expertise, but here I am, trying to tell the Government in 10 minutes or so that I do not feel happy that vital decisions under clause 80 that will affect the welfare of someone who has a right of appeal may be taken by someone who simply is not qualified to make the decision. That troubles me immensely.
I return to a point that was reinforced by much of what the hon. Member for Walthamstow said. Were we to keep our eye on the ball, we would consider whether existing procedures in this country work well and efficiently. It is no good legislating year after yearthere have been four Bills in the past nine years. What use is legislation when the basic workings out there in our immigration and asylum system are not functioning properly? I could talk for 10 hours or 10 weeks and it would not make a ha'p'orth of difference to what happens outside. [Interruption.] The Home Secretary is being very kind to me. On that note, I ought to quit while the going is good, but I must say to the House that fundamental administrative points in our system need looking at.
We need to watch out. It is unfortunate that a clause will allow a junior caseworker to make a decision and to certify it, saying, "You can't appeal against it, chum." How much better it would be if the powers to be given to the junior caseworker were given to an adjudicator. That would enable the principle that it is wrong to take powers from the judges and give them to the state to remain intact. I hope that, even now, the Government will take what I say seriously and consider taking steps, perhaps in the other place rather than under my amendment, to reassure not just me and my hon. Friends, but Members
Beverley Hughes: I shall try to respond to the points that hon. Members have made, but clearly we shall have further debates on new clauses 14 and 15. We have listened carefully to the comments and, I acknowledge, the genuine concerns that Members have raised tonight about parts of those provisions. The hon. Member for West Dorset (Mr. Letwin) began by claiming that it is difficult to judge whether a case is clearly unfounded and that the decision should not be taken by a junior official. I am concerned that that term has become common parlance among Opposition Members. In fact, those who make the decisions are experienced and concerned people. They want to make the right decision on the basis of the best available evidence. It does them a disservice to dismiss them as junior officials or junior caseworkers.
Mr. Letwin: I want to emphasise that I accept absolutely that the people making the decisions, like other civil servants in the UK, are trying to do the best job they can and, no doubt, they acquire in the course of their work a certain amount of expertise and understanding. That is not being challenged. However, they do not carry the same weight as a judge, which is why we have a system of adjudication.
Beverley Hughes: My hon. Friend the Member for Walthamstow (Mr. Gerrard) asked for clarification, and other hon. Members rehearsed the same question. In relation to clearly unfounded casesmentioned in subsection (2) of new clause 14return would be to a person's own country, or country of origin. In third-country cases, removal, by definition, would be not to that person's own country but to a third country.
I emphasisewe ought to keep this at the forefront of our mindsthat the certification that would be allowed under the clauses would be discretionary and that certification would not be made in relation to any country regarded as unsafe.
Simon Hughes: I know that the Minister has been in her job for only a week, but have she and the Home Secretary decided how the definition of safe country will be arrived at? We used to have a white list. What will be the difference between the new way of defining a safe country and the old way?
Beverley Hughes: My right hon. Friend made it clear that we will not have a list, but we are sympathetic to the points that are being made about the documentation, which is validmany other countries draw on our process of assessment. We must ensure that the documentation used to assess the situation in countries is perceived as being robust and as independent as possible.
The hon. Member for Southwark, North and Bermondsey mentioned social groups and women. As the Home Secretary said, social group is one of the factors that will be taken into account. Female genital mutilation was also mentioned; obviously such cases would not be regarded as being clearly unfounded. There is no argument about that.
I regret the linkage that the hon. Member for Southwark, North and Bermondsey made between this Billin terms of process and also in terms of substanceand anti-terrorism legislation. There is no link whatever in our minds.
Notwithstanding the concerns to which I have listened, some of the issues that the clause is designed to deal with arise from the kind of cases that, if we are honest, we all deal with in our advice surgeries. We know from the stories that people bring to us, and from the accounts of their circumstances and where they come from, that their claims are unfounded. That raises the legitimate question as to whether, in those circumstances, that person should continue to be maintained here while appealing. It is a question not of denying the right of appeal, but of whether the person should remain here while the appeal goes through. The Home Secretary and I are not into macho posturing. We think that the new clauses raise important issues. There might be disagreement about the solutions proposed in them, but the issues need to be discussed.