Previous Section Back to Table of Contents Lords Hansard Home Page


Lord Williams of Mostyn: I shall do that at this stage. I said that we would accept Amendment No. 132, and were considering the possibility of a memorandum of understanding. I am quite happy to accept Amendment No. 132.

Viscount Astor: I am very grateful. I was so surprised to have an amendment accepted; I just wanted to check that I was right.

Lord Williams of Mostyn: Perhaps the noble Viscount should sit down now.

Viscount Astor: I did not want to thank the noble Lord for accepting an amendment and then find that I had made a terrible blunder.

Perhaps I may now deal with my amendments. I am entirely happy not to move Amendment No. 126 because I think that Amendment No. 125A covers its point. As to Amendment No. 128, I am satisfied by the Minister's answer. Again, I am grateful for his acceptance of Amendment No. 132. I am extremely grateful for his offer to consider the issues raised by Amendment No. 145, which stands in my name and that of the noble Lord, Lord Dholakia. No doubt he will wish to say something in a moment.

I am concerned about Amendment No. 149. Perhaps the Minister will consider one point. I should say at the outset that I am no expert on the Scottish system of law

21 Jul 1999 : Column 1008

and that my noble and learned friend Lord Mackay of Drumadoon is not in his place. I am afraid that I am rather inadequately filling in for him.

If the rules and practice are to operate efficiently in the Scottish system, it would seem sensible for the Lord Chancellor to be able to take advice from the Lord President of the Court of Session. The Minister might say that in the normal circumstances the Lord Chancellor would do so; I am not clear about the interaction between the Lord Chancellor and the Lord President of the Court of Session. If the noble Lord cannot respond now, I should be happy for him to write to me.

Lord Williams of Mostyn: Perhaps I may attempt to be helpful. The only difference between us on Amendments Nos. 149 and 149A is that Amendment No. 149A requires the Lord Chancellor to consult the Scottish Ministers, including those whom I mentioned earlier. Thereafter, it is for the Scottish Ministers to decide whom to consult. If they wish to consult the Lord President of the Court of Session, they would be able to do so. We are simply saying that, constitutionally, it is appropriate for the Lord Chancellor to consult Scottish Ministers about what will be procedure and practice within the Scottish jurisdiction.

Lord Dholakia: Perhaps I may intervene as my name is attached to one of the amendments. The Minister seems to have recovered from his flu and he is fairly generous today. I do not want to pursue any further points. I am delighted with his explanation and his acceptance of some of the suggestions that have been made.

On Question, amendment agreed to.

Clause 72, as amended, agreed to.

Clause 73 [The Commissioner]:

Viscount Astor moved Amendment No. 125:


Page 47, line 24, leave out ("the Secretary of State after consulting").

The noble Viscount said: This is again a probing amendment. Clause 73(2) states that,


    "The Commissioner is to be appointed by the Secretary of State after consulting the Lord Chancellor".

The words which the amendment seeks to delete seem unnecessary. If the Lord Chancellor wants to consult whomsoever he wants to consult, he will no doubt do so. Obviously, the Secretary of State has an interest, but it is one of which the Lord Chancellor would be bound to take account in any event. I shall be interested to hear the noble Lord's reply. I beg to move.

Lord Dholakia: My noble friend Lady Williams has her name to the amendment. I referred to the Minister's generosity. Perhaps I may now press him further.

There is nothing new in what is sought in the amendment. As early as 1987, the rule-making powers in relation to the immigration appeals process, including in respect of the judicial leadership of the Immigration Appeals Tribunal, were transferred from the Home

21 Jul 1999 : Column 1009

Office to the Lord Chancellor. The principle proposed in the amendment is therefore consistent with that approach.

The principle is simple. The amendment is intended to ensure the independence of the immigration services commissioner. It would avoid the question of the Secretary of State having the power to appoint the commissioner, who effectively controls the "opponents" of the Home office in immigration and asylum cases. The Lord Chancellor already appoints immigration adjudicators.

The Bill provides that the commissioner should be appointed by the Secretary of State. That breaches the principle of natural justice. The amendment is intended to ensure the independence of the immigration services commissioner as the proposed regulator. The advisers and representatives whom the commissioner will regulate will be in an adversarial relationship with the Secretary of State. As I said, it would be inappropriate for the Secretary of State to have the power to appoint the commissioner, who will effectively control the "opponents" of the Home Office in asylum and immigration cases. He will have too close an interest in the outcome of cases on which the advisers may be assisting. The Bill proposes a quasi-judicial function for the immigration services commissioner. The commissioner should therefore be appointed by the Lord Chancellor.

If the amendment is made, a number of consequential amendments will be necessary, including amendments relating to the various administrative provisions concerning the commissioner, his status, remuneration and staff under Schedule 5. Those administrative provisions should also be independent of the Secretary of State for the reasons that I have cited. Amendment No. 144 deals with the same aspect and will give rise to consequential amendments.

Lord Simon of Glaisdale: Is it really necessary to stipulate in a statute that one Minister should consult another? Does not the ordinary machinery of government take care of that? I know that the Treasury is deeply wedded to reiterating in statute after statute that nothing must be done without consulting the Treasury. That is bad enough. It is all quite unnecessary. But need we go beyond that, having allowed for Treasury paranoia?

Lord Williams of Mostyn: This is one occasion when no Treasury paranoia can be pointed to, because the Treasury is not concerned in this aspect at all. What we have done--rightly, I believe--is to provide, in Clause 73(2), for the commissioner to be appointed by the Secretary of State after consultation with the Lord Chancellor. That is a perfectly sensible way of proceeding. The noble and learned Lord, Lord Simon of Glaisdale, will say that that is excessively cautious. However, in a sense we are in new territory here, and it is wise to place upon the Secretary of State for the Home Department the duty of consulting the Lord Chancellor.

I turn to the burden of the remarks of the noble Lord, Lord Dholakia. We must bear in mind that the role of the commissioner is wholly administrative. He has no

21 Jul 1999 : Column 1010

judicial function; therefore, it does not fall for the appointment to be made by the Lord Chancellor. I agree that members of the immigration services tribunal will exercise a judicial function, and for that specific reason their appointment will fall within the remit of the Lord Chancellor. That is why we make provision for it.

The noble Lord, Lord Dholakia, raised the important point of independence. That is why I invite the Committee's attention to paragraph 11 of Schedule 5. The safeguards are built into the paragraph. There is a defined term of office; namely, five years, subject to resignation; and there are severe limitations on the Secretary of State as regards dismissal. The noble Lord, Lord Dholakia, was right to raise this issue. I am happy to give that reassurance, with specific reference to paragraph 11 of Schedule 5.

Amendment No. 144 deals with a different theme. It gives a power to the Lord Chancellor to make an order to remove a designated professional body from the list of designated professional bodies in the clause. The power is with the Secretary of State. He has the responsibility for the scheme to regulate advisers. It seems to me only sensible, in terms of coherent administration if nothing else, that he should have the responsibility for making the order for removal.

However, I must underline the fact that, before an order is sought, the Secretary of State must consult the commissioner; he must notify the body concerned of the proposal, and must give a reasonable period within which representations may be made; and he must consider those representations. He must also have the approval of the Lord Chancellor or the Scottish Ministers if the order relates to a designated professional body in Scotland.

Although I understand the motives behind the amendments, they should not be pressed. I invite the Committee not to agree to them if they are.

Lord Dholakia: I have followed what the Minister has said. The situation needs to be carefully monitored over a period of time.

Viscount Astor: I found the Minister's answer convincing. It convinced me that I had got the amendment wrong. However, it also convinced me that an amendment was necessary. I understood him to say that the commissioner did not have a judicial function. Therefore, it seemed to me that instead of taking out,


    "the Secretary of State after consulting",

the phrase should read,


    "by the Secretary of State".

Then we would take out,


    "after consulting the Lord Chancellor".

It seems to me that that is unnecessary and I am grateful to the Minister for giving me guidance as to what amendment to put forward at the next stage of the Bill. I beg leave to withdraw this one.

Amendment, by leave, withdrawn.

21 Jul 1999 : Column 1011


Next Section Back to Table of Contents Lords Hansard Home Page