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Lord McIntosh of Haringey: I hope that nothing I have said compounded that error. I hope I was saying that it is the fast-track appeal that we are talking about and not a fast track for the consideration of the original application. On the basis that I have stated, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.15 p.m.

Lord McIntosh of Haringey moved, as an amendment to Amendment No. 1, Amendment No. 23:


Line 45, at end insert--
("but nothing in those rules may permit any appeal to be determined without the appellant being given the opportunity to present evidence both orally and otherwise").

The noble Lord said: Amendment No. 23 is of great importance. Its importance has been brought to the forefront by the issue on 31st March and the Lord Chancellor's proposals for comment on procedural rules which would affect the role of the adjudicator and the way in which the adjudicator would consider an appeal. These are not, as I understand it--the Minister will correct me if I am wrong--the procedural rules as such which would apply to the state of law after the Bill has received Royal Assent. I understand them to be

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procedural rules which are meant to apply to the situation after the passage of the 1993 Act and the subsequent KPMG report in late 1994 on the operation of the Act. What is significant about the rules issued by the Lord Chancellor's Department is that they consistently refer to the need to avoid delay and reduce cost. They seldom refer to the protection necessary for applicants and appellants. That is why we are worried--we express our worry in the form of this amendment--that it may be the Government's intention to allow appeals to be taken on the papers alone without the possibility of an oral hearing.

All the evidence is that that would be an extremely dangerous procedure. I believe that the Council of Tribunals--I am sorry that my noble and learned friend Lord Archer of Sandwell, who is the chairman of the council, is not available to contribute on this issue today--has been carrying out an analysis of the relative success of matters which come before a tribunal when there is a possibility of an oral hearing as compared with matters which come before one when the matter can be decided on the papers alone. There is a great difference between the two procedures. In other words, there is a much greater likelihood of an appeal being found in favour of the appellant if there is an oral hearing than if there is only a consideration of the papers.

The Bill, as drafted, does not say that an appeal can take place without the possibility of an oral hearing. But all the provisions in the Bill, including, notably, the provisions for out-country appeals in Clauses 2 and 3, lead us to fear that it may be the intention of the Government to allow appeals to be considered on the papers alone. This afternoon we are looking for an assurance that that is not the case and that the Government will indeed do what I believe everyone will accept to be the right thing; namely, to have oral hearings when they are necessary. I beg to move.

Earl Russell: We are always at a disadvantage when we have to discuss a major substantive issue in the absence of some of the crucial documents which show how the policy is going to be applied. It means that we do not know exactly what is going to happen or how it is going to work. Without the procedural rules, I do not see we can properly understand exactly how the appeals are going to work.

We are at a disadvantage here. It is perfectly possible that the noble Baroness is also at a disadvantage. It is not the business of this side of the Committee to be in the habit of regularly giving the Government the benefit of every doubt that arises. It is quite possible that were this document to be made available, some of our fears would prove to be unfounded. One must accept that is a possibility. But one has to go on insisting that as long as they have the power to do something which we believe should not be done, one has to go on raising the issue.

The fear that appeals may be done entirely on the papers is not, so far as I am concerned, without foundation. During the last election, which is now quite a time ago, I took part in a radio programme opposite the noble Lord, Lord Waddington, on the subject of immigration. The noble Lord stated categorically that it

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was the Government's intention to introduce a system of hearing appeals purely on the papers. That was a statement made by the then Leader of this House, so it clearly was the Government's intention in 1992.

What is rather curious is that this did not appear in the Asylum and Immigration Act 1993 so, clearly, somebody had had second thoughts. What we do not know now is whether the second thoughts have been superseded by third thoughts. We do not know whether the second thoughts were the result of perhaps perfectly genuine difficulty. When a Government have hesitated so long before bringing in a policy which they have proclaimed during an election campaign, one must wonder whether they had good reason not to do so.

In this case what strikes me as the obvious good reason is that when one is dealing with a claim, practically the first thing that one needs to form an opinion about is the credibility of the claimant. I have not yet found any reliable way of judging the credibility of a person based entirely on paper. Believe me, if one's profession is that of an historian, one has to try to do that daily. There is not any way that it can be done adequately. So if one wants to judge the credibility of an appellant, one has to be able to have an oral hearing. Without that the element of lottery in a decision, which is already there, inevitably must increase and that is something that we could not regard as the prevention of abuse.

Baroness Blatch: I shall ignore the political jibe of the noble Earl, Lord Russell. I wholeheartedly agree with him that establishing the credibility of an appellant is the intention of the system.

Earl Russell: Did I hear the noble Baroness right in saying that I had made a jibe? If so, what was it? I do assure her that that was not in the least my intention.

Baroness Blatch: I believe I heard the noble Earl refer to matters being brought up during political campaigns. If I have misunderstood the point being made by the noble Earl, of course I withdraw the comment that I made.

Earl Russell: All I wanted to say was that the point was made by a spokesman acting for the Conservative Party during a general election campaign. I believe that hearing appeals based only on the papers was then the Government's intention, but what interested me was why they changed it. I was not alleging any impropriety about changing their minds--in fact, I was relieved that they did. I just wondered why they changed their minds back again.

Baroness Blatch: It is my intention to ignore the politics of this amendment and to deal with the amendment before me on the Marshalled List.

Amendment No. 23 proposes changes to subparagraph (5) which would prevent the Lord Chancellor from issuing procedural rules which denied the appellant the opportunity to produce evidence in support of his appeal, both orally and otherwise.

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The Government cannot accept the amendment. My noble and learned friend the Lord Chancellor has recently issued for consultation new draft procedural rules designed to reduce delays and adjournments. Comments have been requested by 20th May and a copy has been made available to this House. Among a number of important improvements to the rules, our proposals include an extension of the existing powers to resolve the case without a hearing. The draft rules would extend the adjudicator's existing discretion to determine the appeal on the papers in certain circumstances.

It is important to put this proposal in context. The Government have been seriously concerned about unnecessary delays and adjournments in the asylum appeals system. The majority of appeals now take longer to determine than the time prescribed in the procedural rules. Part of the problem is that the workload of the appeals system exceeds its capacity. That is why the Government are currently investing substantial sums in additional adjudicators and additional hearing rooms. The number of determinations nearly tripled last year from 2,400 to over 7,000, and a further very major rise in determinations is planned this year.

But an important part of the problem lies in avoidable delays and adjournments. A study by the consultants KPMG, which was referred to by the noble Lord, Lord McIntosh, which the Government commissioned in 1994 and made available to Parliament in February 1995, highlighted the havoc caused to many lists by last-minute adjournments. For example, the consultants found that there is little incentive for appellants and their representatives to co-operate with the Home Office and the appellate authority in moving appeals quickly through the system. They found that by the appeal stage, when it is becoming clear to appellants that their chances of gaining refugee status are very thin, it is in the interests of most to seek to postpone the final decision.

The report went on to say that the lack of incentive to co-operate with the appeal process is supported to some extent by the analysis of adjournments. It has been noted that significant causes are illness, lack of readiness on the part of the appellant's representative and absence of the appellant or his representative. The report went on to say that it was not suggested that all the adjournment requests are not genuine, but that for many such representatives it is not difficult to get at least one adjournment. The concern of adjudicators was also noted at the misuse of doctors' sick notes. The report commented that the Home Office Appellate Authority and judiciary should remain alert to the incentive for appellants and representatives to delay the processing of appeals.

The new procedural rules are designed to address the problems identified by the consultants. My noble and learned friend the Lord Chancellor has consulted closely senior members of the Immigration Appellate Authority and the Immigration Tribunal, to arrive at a clear and practical set of proposals. They include greater powers for adjudicators to make directions to the parties for the preparation of cases; a presumption against adjournments unless the adjudicator is satisfied that it is necessary for the just disposal of the appeal, and a

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stronger presumption against the admission of appeals if notice is not given in time, unless given late, because of circumstances beyond the appellant's control.

Powers to give directions are of no use without sanctions against non-compliance by either party. Therefore, we propose that the adjudicator will be able to proceed without a hearing or to treat the appeal as abandoned, if that is appropriate. In addition, we propose that the existing power to determine the appeal without a hearing may be appropriate in other circumstances. We believe that there may well be cases where it would be both sensible and compatible with justice to proceed in that way. There are cases when, for example, it is plain from the papers that the appellant cannot, or has not tried to dispute the incontrovertible nature of the decision. Where it is plainly unnecessary to hold a hearing, doing so merely adds to the burden on the appeal system.

Perhaps I may stress three points. First, there is already provision for determining appeals without a hearing in certain circumstances. Secondly, we are emphatically not renewing the right to an oral hearing in all certified appeals, as suggested in the Peat Marwick report. All that is proposed is to extend the adjudicator's existing discretion to determine on the papers, if he considers that appropriate in an individual case. It will be entirely up to the adjudicator how far, if at all, he uses such a discretion. We believe that it is an option that should be available to the adjudicator. Thirdly, if an adjudicator uses that discretion unreasonably, the ultimate safety net of judicial review is always available. We do not think that that will happen very often.

We shall, of course, consider carefully all the comments that we receive on the draft new procedural rules, but we cannot agree to Amendment No. 23 as that would foreclose an option that we believe at least deserves to be considered seriously.

5.30 p.m.

Lord Harris of Greenwich: Perhaps I may say just a few words on this, with particular reference to the bizarre statement made by the noble Baroness a few moments ago that my noble friend Lord Russell had made some sort of jibe by referring to a debate that he had had with the noble Lord, Lord Waddington. I am glad that I can get a laugh out of the noble Baroness because it is some little time since I have had the pleasure of watching her smile about anything--no doubt partly because of the unfortunate disclosure of the way in which the crime figures are moving at the moment.


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