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The Earl of Onslow: My Lords, is not the fact that all the Law Lords are speaking a perfect example of why the Liberal Democrats were wrong to vote last Monday as they did?

Lord McNally: My Lords, as I said, most of the trouble makers are on parade today. I am grateful to have that reminder from one of the chief exponents of the art.

I start from the point made by the noble Lord, Lord Clinton-Davis. I hope that we all approach the matter with a certain humility. I entered the House in time for

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the final 18 months of the Conservative government, and I remember the vigour with which those on the Labour Benches, then in opposition, attacked the failure of that government to get a grip on immigration and asylum. They said that the waiting list was a cunning ruse to ration immigration—it was pretty good stuff. However, as has been pointed out, this is the Government's fifth attempt in six years to get this matter right.

We must recognise that some of the simple political jousting that has gone on over this issue does not come to terms with the reality of a world which, as the noble Baroness, Lady Anelay, said, involves organised crime, people trafficking, the sex trade and exploitation of labour on a global scale. Any government would be faced with new problems. The task is therefore to make legislation that keeps faith both with the rule of law and with our historic role as a safe haven for genuine refugees.

The noble and learned Lord the Lord Chancellor made much in his opening remarks about the recent reduction in the number of asylum seekers. However, as a number of observers have said, that is partly or mainly due to a more stable international situation; certainly, it has been more stable in places that have hitherto been a great source of refugees. We must ensure that we deal with this matter with a little humility, given the various track records on it, and that we address the reality and not just the perception of the problem. Our media, and particularly the tabloid press, have played a pretty miserable role in whipping up xenophobia and intolerance in this area. It is not surprising, if people rely on certain newspapers, that MORI found that most people in Britain believe that immigration is four times its actual level.

Many clauses in the Bill will demand our attention—and I give fair warning that we shall deal with them fully in Committee. The three that have been highlighted include Clause 2, which will make it an offence to enter the UK without a passport. As the noble Baroness said, that throws up real problems about refugees who come from countries where the niceties of obtaining a passport are frankly absurd. Yet there is a valid point to make in that we must find ways in which to penalise those who wilfully abuse the system by destroying their authentic documents.

Clause 8 threatens failed asylum seekers with removal of basic support. The noble and learned Lord the Lord Chancellor tried to put a good gloss on that proposal, but most observers have seen it as an attempt to coerce asylum seekers to leave the country by effectively starving them out. It seems almost reminiscent of the old Speenhamland system and the old Poor Law that a society should inflict destitution on people. Again, I believe that the clause will be given a very rough ride. The Government are in effect raising the spectre of depriving families of their children as a means to an end. It is inhuman to do that to facilitate their removal from the UK.

Clause 14, as a distinguished jurist said, infects the entire Bill. We get different noises from different ends of this Palace. The Home Secretary is on record as

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saying that he is sick and tired of spending valuable parliamentary time discussing Bills that are then overturned by the courts. As has been pointed out, that is not the line that the noble and learned Lord the Lord Chancellor usually takes in this House. We all read our newspapers and know of the Home Secretary's impatience with the judicial system, but we on these Benches will settle for the comment made by Shami Chakrabarti from Liberty, who said that judges looking over their shoulders was a powerful incentive to adjudicators to get things right.

I shall rely on legal and judicial opinions far more expert than mine to see just how much of a concession on Clause 14 the noble and learned Lord the Lord Chancellor has made today. At later stages of the Bill, we shall consider carefully the proposals put forward by the Conservatives on those matters. As the noble and learned Lord the Lord Chancellor has told us, the Government's justification for the measures is abuse of the system, yet we know that much of the delay is due to Home Office procedures.

Many people have concerns. I received a letter, which does not look as if it comes from a lobbying organisation of any kind, from a lady in Bristol who says that she is worried about the Bill because of the,


    "exclusion of the judiciary from oversight of government decisions to refuse asylum ... creation of a new offence of entering the UK without a passport, when it may be impossible for persecuted people to have one ... removal of support from asylum seekers and the threat to take children into care. In many such instances the designation of the refugee's home country as 'safe' is in fact incorrect",

and,


    "the curtailing of legal aid. Without adequate legal advice the initial interview will come to wrong decisions".

The lady goes on to say:


    "I am concerned that this is an unjust Bill and does not reflect well the standards"—

that we expect in Britain. We may hear longer speeches tonight about the weaknesses of the Bill, but I do not believe that I have read a better one.

5.28 p.m.

Lord Woolf: My Lords, as I understand what the noble and learned Lord the Lord Chancellor said to us this afternoon, he has given us an unqualified indication that he is dropping from the Bill the ouster provision as to the jurisdiction of the High Court. On that basis, I warmly welcome the indication given by the noble and learned Lord the Lord Chancellor and Secretary of State. I am sure that his announcement will be greeted with approval by the judiciary and, indeed, everyone who is committed to the upholding within this country of the rule of law.

The judiciary share the Government's desire for there to be an efficient, effective and expeditious method of dealing with immigration and asylum appeals. Such a system must also be just and firm. That an appropriate system of appeals is necessary is beyond dispute. The statistics for successful appeals make that need clear beyond argument. What has to be achieved is a proper balance between the interests of the Government in upholding the law and avoiding

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unnecessary expense and complexity and the interests of appellants. The system needs to be fair and just, but not readily capable of abuse.

The judiciary has already made a substantial contribution to improving the existing system. It has provided leadership for the existing first tier of the system, the adjudicators, and, therefore, the tribunal. Considerable praise is due to His Honour Judge Henry Hodge, who has given up his normal role of Crown Court judge to be president and to lead the adjudicators. Initially, Mr Justice Collins and, now, Mr Justice Ouseley—respectively, the past and present presidents of the Immigration Appeal Tribunal—produced dramatic improvements in both tiers of the appeal system.

Together with Mr Justice, now Lord Justice, Maurice Kay, they deserve credit for their contribution in establishing the statutory review under the 2002 Act, mentioned by the noble Baroness, Lady Anelay. Statutory review appears to be a success. It avoids abuse while at the same time retaining appropriate supervision by the High Court. I was pleased to hear the noble Baroness indicating support for statutory review.

To avoid unnecessary appeals to the existing Immigration Appeal Tribunal, such appeals are only with leave. However, what happens if the tribunal wrongly refuses leave? Prior to the 2002 Act, there was a steady stream of applications for judicial review to the High Court against the refusal of leave. Statutory review provides an alternative simple procedure that for practical purposes replaces judicial review, as a decision of the administrative court on Friday last confirmed. The virtue of statutory review is that the whole process is completed within two weeks, which is a remarkably short period in the context of the periods to which the noble and learned Lord the Lord Chancellor referred.

If the statutory review is successful, the case is remitted back to the existing Immigration Appeal Tribunal for a substantive hearing by judges with experience in immigration work. Because it is so expeditious, there is no purpose in making an abusive statutory appeal. The applications are dealt with on the papers, but it is still a process that safeguards appellants, as the results of statutory review indicate. No doubt, that is the reason that in the other place the all-party report of the Select Committee for Constitutional Affairs of 24 February recommended that the statutory appeal procedure should be allowed more time to demonstrate its merit.

The judges to whom I referred and I support this recommendation. I appreciate that the Government are reluctant to do that, but I have reservations about whether there is any more satisfactory solution. The alternative is to risk overwhelming the High Court with applications for judicial review, which would be more expensive and would lead to delay. Of course, the judiciary will still try to assist in finding a solution, the desire for which we share with the Government. But I fear that that may be difficult.

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Finally, I turn to a related concern. Under the proposals contained in the Bill, the role of adjudicators within the single tier would be even more important than it has been until now. The adjudicators would be the majority of members of the new tribunal. Their role would be judicial. It is therefore a cause of some concern that Schedule 1(3)(1)(c) provides that a member,


    "shall hold and vacate office in accordance with the terms of his appointment (which may include provision for dismissal)".

I am unaware of such a proposal for "dismissal" ever previously being included in a judicial officer's terms of appointment. The Council of Immigration Judges is concerned that this provision will be used as a justification for members of the new tribunal being dismissed because of dissatisfaction with their decisions. Their concerns are exacerbated because of the novel proposal that it should be a term of their engagement that they have to comply with practice directions. Judicial officers observe practice directions if they are issued by someone with such authority, but I am surprised that it should be felt necessary to have a term of appointment to that effect.

Because of the important role of those members of the new tribunal, I urge the Minister to deal with these concerns in her reply. In particular, I hope that she will make it clear that the current arrangements that I have with the Lord Chancellor—that judicial officers, including adjudicators, will not be dismissed or removed without my concurrence—will continue to apply to the members of the new proposed tribunal.

5.36 p.m.

The Lord Bishop of Oxford: My Lords, the Churches have a long-standing concern about the issue of asylum expressed, first, in relation to the successive Bills that have come before your Lordships' House and, secondly, in support of asylum seekers at the local level. The right reverend Prelate the Bishop of Southwark will speak more specifically about the Churches' involvement, as well as about the recent debate of the General Synod of the Church of England on this subject.

A bishop colleague, hardly noted for his modish views, once confided in me that he always supported the government of the day because government was always such a difficult, near-impossible task. The difficulties are large when it comes to asylum and immigration issues. I certainly sympathise with the Government's task of trying to achieve a fair and efficient asylum system in the present context. However, like many of your Lordships, I have grave reservations about a single-tier appeal system, despite the qualifications now built into the Bill and the previous assurances of the Government. Therefore, I was extremely glad to hear the noble and learned Lord the Lord Chancellor refer in his opening speech to the need for the necessary judicial oversight. That was very good to hear.

I was not quite sure whether there was a slip of the tongue or whether I misheard the noble and learned Lord the Lord Chancellor. I thought that I heard the phrase, "oversight by the administrative court", when

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I was expecting the phrase, "oversight of the administrative court". If we are referring to the necessary judicial oversight, we are referring to oversight over an administrative court, not by the court itself.

At the Report stage in the other place, the Parliamentary Under-Secretary of State for Constitutional Affairs stated:


    "It is vital to have early finality".—[Official Report, Commons, 1/3/04; col. 696.]

He used the word "finality" three times in a short speech. In his opening statement, the noble and learned Lord the Lord Chancellor used the phrase "speed and finality". Indeed, it is important to obtain a clear, certain and, above all, correct decision as soon as is practical. Inordinate delay helps no one, least of all the asylum seeker. But there is a human tendency, not confined to the legal process in asylum cases, to go for early finality at the expense of other important considerations.

There are many occasions in life when we would just like to "sort it all out" or resolve some issue. We may feel frustrated and impatient. But, more important than early finality is the correctness of the decision. The desire for early finality cannot be allowed to bludgeon the imperative to arrive at a just decision. In cases that are confused, which many of them are, where it may be difficult to get at the facts, it may take more time and procedures to double-check decisions already made than we would like in an ideal world. But this is not an ideal world. Where there is the possibility of human error, time, however reluctantly, must be allowed.

The Government say that those making an appeal will have the benefit of legal advice and representation, but, as we now know, that applies to only five hours of work, except for exceptional cases. I shall not stress that point because I know that noble Lords more experienced than I will emphasise it. Clearly, that is totally inadequate in cases which are very often complex and difficult to represent.

Many noble Lords have pointed out that the proposed one-tier appeal system, with no possibility of judicial review or reference to a High Court, would be unique in our legal system. The Government have argued that in other fields of law, there is no desire on the part of appellants to delay matters. They want a decision as speedily as possible. In the case of asylum seekers, it has been suggested that there is a vested interest in delaying matters as long as possible, spinning things out through a whole succession of appeals. Undoubtedly, that does sometimes happen. However, the fact that some people are motivated in this way is not, I would suggest, enough to make a fundamental change to the very basis of English law. As I have already emphasised, speed, though important, is subservient to the overriding imperative to achieve a correct—that is, a just—decision.

If getting a right decision is the paramount obligation, we have to note the grave concerns expressed by a number of policy bodies about the

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quality of decision-making in the first instance. For example, the Select Committee on Home Affairs in its recent report commented that:


    "The real flaws in the system appear to be at the state of initial decision-making, not that of appeal".

It went on to recommend that the implementation of a new asylum appeals system should be contingent on a significant improvement in initial decision-making having been demonstrated.

A similar point was made in the report of the Constitutional Affairs Committee. Together with this, the poor quality of legal advice and representation already noted—which again affects the quality of first stage decisions—is a concern. The Churches in Reading and the Diocese of Oxford believe that this has led to a number of incorrect and unjust decisions.

On the Government's figures, of the 33,000 appeals to the Immigration Appeal Tribunal between October 2002 and September 2003, 2,000 were allowed. The figures are not always easy to evaluate because they depend on what year we are talking about—not everyone is talking about the same year—and at what level the appeal is made. Certainly other bodies put the rate of successful appeal much higher than the Government. For example, it has been argued that of the one-third granted permission to appeal and heard by the IAT, 58.8 per cent are either allowed outright by the tribunal, or else remitted back to an adjudicator for a fresh hearing. Even on the Government's figures, where 2,000 were allowed, we are talking about a significant number of people—people for whom a correct decision may be a matter of life or death.

For these reasons, I share the reservations of other noble Lords about the Bill as it now stands, particularly about Clause 14, which creates something quite unprecedented in our legal system. Even if the first stage of decision-making is improved as the Government intend, there will be a need for an appeal system which is independent of both the initial decision-making process and the initial appeal system. A one-tier system, even when staffed by experienced judges, will still be reviewing its own decisions, and that pertains in no other area of our legal system. I was therefore very grateful to hear what the noble and learned Lord the Lord Chancellor said in his opening statement. Obviously we will need to look very carefully at the Government's amendment when it comes before this House again in order to ascertain whether it really builds in that extra safeguard for which many of us are looking.

5.43 p.m.

Lord Clinton-Davis: My Lords, I am delighted to follow the right reverend Prelate the Bishop of Oxford, and I adopt many of the points which he has made.

In a matter of this overall importance, widespread consultation with all who have something worthwhile to contribute—some expertise—is absolutely essential. Yet there has been no consultation at all with the Law Society. I do not think there has been any consultation with the Bar Council either. Yet both have numbers of practitioners who play a vital part in

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this whole apparatus. Have the Government any intention, even now, to repair that omission? After all, there is no reason for any disgruntlement on this score.

We know that many of these organisations have expressed their profound concern about various concepts advanced by this Bill, particularly on the question of ouster provisions, the role of the High Court, and the restriction of the right of appeal. This idea of removing a challenge to the proposed asylum and immigration tribunal by virtue of judicial review should be abandoned by the Government.

Why, these organisations ask, do we have so many immigration appeals in such a relatively short time? That question was raised by the noble Lord, Lord McNally, today. Which measures in the past have been found to be inadequate to justify this stance?

Despite these shortcomings, the claim made by the Government—that the number of asylum applications has markedly diminished—is wholly to be welcomed. There has been a substantial reduction in the number of cases waiting for initial decisions and new cases are largely decided within two months. On the other hand, the Government have pursued with vigour up to now the measures contained in this Bill. In consequence, some serious injustices could have resulted. I am pleased to say that the Government have had second thoughts, particularly about Clause 14.

I now turn to that clause. It is a pity that the Home Secretary was not more amenable in another place when this issue was decided. Not only was he not amenable, he was distinctly hostile. I am delighted that, on second thought, the Government are going to entertain some amendments—about which the House of Lords is likely to be very concerned. We will look at those amendments very carefully. However, I assume there has been no consultation at all with regard to that point. I hope that the Government will put that issue right because, as I said before, consultation is absolutely crucial with people who know something about immigration.

In my respectful submission, as drafted, Clause 14 should never have seen the light of day. Yet it survived all the House of Commons's surveillance in the Bill's various stages. This ouster clause has, in fact, been heavily criticised by the Constitutional Affairs Committee, the Bar Council, the Law Society and many others with specialised knowledge of this issue.

What was envisaged—the single-tier asylum and immigration tribunal—was designed to take over the role of the asylum and immigration system, with the High Court and Court of Appeal no longer carrying out any oversight of the tribunal. It was alleged that there is abuse and delay in the present system of appeals. Is that right?

There probably is some delay, we have heard it said today. But my noble and learned friend the Lord Chancellor has an obligation to spell that out. It is no good making allegations—he has to provide the House with facts. He has not done that. If on the other hand I am right, we have to be guided by what has happened in the vast majority of situations. I am not sure

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whether I am right or wrong about this, but we have to ask ourselves what the statistics indicate. I submit that, on that basis, the Government have misled themselves.

In the House of Commons, the Home Secretary argued that only a tiny minority—he said about 3 per cent—of appeals succeeded. What he overlooked was that appeals to the Immigration Appeal Tribunal required permission to be granted in the first place. Of those, 11 per cent succeeded and 48 per cent were remitted for a re-hearing. It has been said before, but in the year between 1 October 2002 and 30 September 2003, the Immigration Appeal Tribunal allowed 639 appeals and dismissed 1,722. A small number were withdrawn. Thus there was a success rate of as much as 23 per cent, although the Home Secretary asserted that it was only 3 per cent. He was entirely wrong about that point, which is absolutely essential and goes to the heart of the whole matter.

The situation affecting appeals was amended by the Nationality, Immigration and Asylum Act 2002. Where permission to appeal was not given, there could be a statutory review. Because it was a paper-only review, it was very swift, as was said by the noble and learned Lord the Lord Chief Justice. Why on earth is it now alleged by the Government that that procedure has failed?

The real trouble, which I think that the Government now admit, is that the officials concerned with the initial decision-making have not made a very good fist of it. Indeed, that is the view of the Select Committee on Home Affairs. I therefore hope that the Government, in the light of experience, will not be averse to changing the situation. Other immigration Bills have been put before the House, but if this Bill demonstrates that it is in some material respects wanting, it is particularly important that the Government assert the confidence to change the system.

5.53 p.m.

Lord Mackay of Clashfern: My Lords, it is a pleasure to follow the noble Lord, Lord Clinton-Davis. I have had the experience of his wisdom over many years in a number of different capacities. It is of some interest that in the Times this morning there was a report of an appeal by the Home Office, under the statutory provisions that it set up, that failed on the grounds that the Home Office did not have a basis for its appeal in the statutory jurisdiction. I think that I am right in saying that the majority of the judges who decided the case suggested that the Home Office might have a remedy by judicial review.

When I put my name down to speak in the debate, I noticed that, on the already tight form, the name of the noble and learned Lord, Lord Irvine of Lairg, was present and that the debate was to be opened by the noble Baroness, Lady Scotland. That was on Wednesday last week, so events have moved somewhat in a direction that I very much appreciate.

It is important to notice what has happened. The Government have decided to put forward a Bill that provides that no court should have any supervisory or

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other jurisdiction, whether statutory or inherent, in relation to the tribunal. Not content with that, they went on to explain what the courts could not do. Proposed new Section 108A(3) of the Nationality, Immigration and Asylum Act is the vital provision, and reads:


    "Subsections (1) and (2) . . . prevent a court, in particular, from entertaining proceedings to determine whether a purported determination, decision or action of the Tribunal was a nullity by reason of . . . lack of jurisdiction, . . . irregularity, . . . error of law, . . . breach of natural justice, or . . . any other matter".

Those who are familiar with that branch of the law will recognise those words as coming from a speech of the late Lord Reid in the case of Anisminic. Those were the grounds on which he held that the decision of the Foreign Compensation Commission in that case was not protected by the statutory ouster, which was elaborate, because the statutory ouster purported to protect determinations of the commission. However broad that protection is, if there is no true determination of the commission, there is nothing to protect. Alert to that problem, those who have put the Bill together sought to avoid it.

In my submission, that is a serious affront to the rule of law. Let me take a breach of natural justice. What the House of Commons has been asked to affirm by the Government—and has affirmed—is that the High Court should be prevented from intervening, even where there is a clear breach of natural justice on the part of the tribunal. But for that, the present law would of course allow the High Court to intervene to correct that breach of natural justice. That is what is required to be affirmed by each House of Parliament passing the Bill—that the High Court is precluded from intervening to put right a clear breach of natural justice by a tribunal. In my submission, that strikes right at the very heart of the rule of law. Anyone who read the Bill should have appreciated that.

I therefore find it disturbing, to say the least, that the Government thought it right to invite the House of Commons to pass the Bill in that form. As a footnote, I should say that when I first heard of the proposals for the abolition of the Office of Lord Chancellor and the setting-up of the Supreme Court, I was somewhat perturbed. When I read this provision in this Bill, I was much more perturbed, because I saw that the Government were apparently willing to subvert the rule of law in relation to people who might well be at risk of their lives from persecution in a foreign land.

In an article in one of what I should perhaps call the broadsheet newspapers, someone wrote suggesting that because asylum seekers and immigrants are not citizens of our country they should not be considered as requiring justice. I am proud to say that our courts over the years have not distinguished between foreigners and others in giving people proper justice, whatever their origins might be. I am proud to think that a very distinguished Scottish Lord Chief Justice enunciated that rule with great vigour.

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The noble and learned Lord the Lord Chancellor has now undertaken to table an amendment to allow a statutory appeal, I think, to the administrative court—that is, to the judges of the High Court who specialise in dealing with administrative matters. We used to call it the Crown Court list; now it is called the administrative court because it deals with matters that arise in administrative law. The right reverend Prelate the Bishop of Oxford may have assumed that, when the noble and learned Lord spoke of the administrative court, he was speaking of the tribunal under the Bill, but I do not think so. Rather, he was thinking of a review by the judges of the High Court who specialise in such matters under the name of the administrative court. I am assuming that that is going to be provided, and no doubt the experiences of the Home Office this morning will perhaps instruct its view as to the nature of the appeal to be provided. Obviously, time limits can be put into a statutory procedure as well as any other safeguards, consistent with justice, that should exist.

In my submission, this request to the House of Commons to pass this Bill was a very serious incursion into the rule of law, and I am glad that your Lordships' House—for all its shortcomings and things that have been said about its procedures—is going to have an opportunity to put this right with, I understand, the full approval of Her Majesty's Government.

So far as the previous history of these matters is concerned, the noble Lord, Lord Clinton-Davis, asked my noble friend about that and, as a member of the government who were dealing with these matters before the present administration took over, I fully admit that it was an extremely difficult jurisdiction. We tried to improve it by bringing judicial officers into the appeal tribunal, so I am very conscious of the difficulty of the situation. One must be quite careful in a difficult situation, however, that one does not increase the difficulties and destroy justice in the mean time.

6.1 p.m.

Lord Dholakia: My Lords, it is almost an impossible task to follow the noble and learned Lord, Lord Mackay of Clashfern; let me try a different angle.

We have had five such parliamentary Bills in the last 10 years, and as was predicted on all previous occasions, this will not be the last one. We are told that these are Government proposals on asylum reforms. They are some of the most draconian measures under the name of reforms. In essence, we are dealing with a system of justice the likes of which we have never seen before. We are creating a new offence of asylum seekers arriving here without proper documentation, and we are creating a class of people in our welfare services who will cease to be eligible for support. It is not just the asylum seekers but their families who will be ineligible for support and assistance.

A country has the right to determine its immigration policy, and the United Kingdom is no exception. But it has always been apparent that our policies have been based on xenophobia—the word was rightly used by

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my noble friend Lord McNally. The events of the past few weeks have demonstrated total inconsistencies in the way immigration matters are handled. It is no good Ministers denying responsibility. The buck must stop with them. I have no problem with whistle-blowers. They perform important roles in exposing a highly bureaucratic and secretive government. Equally, I do not think that the Minister needs to apologise for the way cases which fall within our obligations are dealt with speedily. I am delighted that my party did not offer cheap publicity to the character who wrote to the BBC advocating a policy of nuclear attacks against Muslim countries. The question we should be asking is how, despite a policy of equality and diversity, a person of such extreme views came to be employed by the Home Office. Do we genuinely believe that he could take rational decisions on applicants seeking asylum in this country? This xenophobic attitude is well documented in the way we have historically handled immigration and asylum issues. We have now turned full circle from the days when the Labour Party set out its suspicion of foreigners.

Let me refer to 1951—that is, 53 years ago—when immigration from the colonies started. The then Labour government set up an interdepartmental committee to consider the possibility of legislative and administrative methods to deal with immigration. At that time, so preoccupied were the Ministers with the numbers entering the UK that the welfare and integration of newcomers was not even discussed. In fact, its key policy recommendation was:


    "Any solution depending on an apparent or concealed colour test would be so invidious as to be impossible for adoption. Never the less it has to be recognised that the use of any powers taken to restrict the free entry of British subjects to this country would, as a general rule, be more or less confined to coloured persons".

Such attitudes have not only shaped our immigration policies, but have also done much harm in the way we have conducted our race relations policies. In the 1964 general election, we had Peter Griffiths, the then Conservative victor in Smethwick. He captured his seat from Patrick Gordon Walker by using race and immigration in the most emotive way. He was called the parliamentary leper by Harold Wilson, and yet it was the Labour Party which, within two years of coming to power, actually deprived British passport holders of colour from East Africa of their right to enter the United Kingdom.

We then had, in 1968, Enoch Powell making the most divisive "rivers of blood" speech. Much water has flown since then and, to the credit of the British people, we have a culturally diverse society which has contributed so much to our prosperity. But now, more than 50 years after the first wave of immigration from the Commonwealth, the Home Secretary is actually questioning the benefits of diversity. Last week, he told a think-tank in America that there was powerful evidence that diversity is linked to falling standards in society and suggested that immigration can be damaging. He went on to say that the evidence that diversity correlates with a decline in social capital is sufficiently powerful that we need to address it.

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These comments come at a time when the majority of the ethnic population is British-born, and their home is more likely to be Burnley, Blackburn or Brixton. It seems a strange way of conducting a debate about immigration and asylum issues. Immigration, despite the infrequent blips of communal incidents, has been a success story and we should be proud of it. It does worry me that, at the highest political level, we have failed to single out the benefits and have concentrated on the negative aspects of our race and immigration policy.

It is therefore no surprise to many of us that this damaging piece of legislation before us will do more harm than good. Look at Clause 2. This will make it an offence, punishable by imprisonment, for any non-British or EEA national arriving at a UK port, not to have a passport. I accept that it will be a defence for that person to provide a reasonable excuse to the immigration officer. Almost all practitioners have told us that the threshold set when defining "reasonable" has been high, and with the added proviso regarding the deliberate disposal of a passport, there will be, effectively, no defence. In reality, it is likely to mean that many asylum seekers would be committing a criminal offence on entry to the UK, punishable by a prison sentence of up to two years.

I need to ask the Minster to explain if Clauses 2 and 3 contravene Article 31 of the Geneva Convention, which forbids a signatory country from prosecuting, on account of their illegal entry, those seeking refugee status. Successive governments have introduced measures which make it impossible for asylum seekers to enter the United Kingdom. The UN convention is rendered meaningless if a person in search of protection and assistance is unable to reach countries which are party to it.

We are now turning on those who have already sought shelter here. We are the architects of our own failings in the way we have dealt with immigration. It has taken us 50 years to distinguish between skilled primary migration, economic migration and asylum seekers. At a time when we had a manageable list of applicants, we removed almost 1,500 civil servants from the immigration and nationality division. Surely there cannot be any surprise that the list became unmanageable?

I have no doubt that if we had a properly managed system there would be only genuine asylum seekers. We would not need accommodation centres, detention centres or policies that take away their basic rights under the Geneva Convention. An effective policy on skilled managed migration and one about employment or economic migrants would establish different routes of admission to the UK, without damaging those who are genuinely victims of torture and persecution.

This is why it is necessary—and there is public support for it—that a system should be designed that helps refugees and deals effectively with those who have been rejected. We have numerous concerns about the Bill and, as my noble friend Lord McNally has pointed out we shall certainly deal with them in Committee.

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Let me start with a quote from the Lord Chief Justice, the noble and learned Lord, Lord Woolf. I know that the Minister has now indicated that there will be some concession, but the Lord Chief Justice was absolutely right when he said:


    "Immigration and asylum involve basic human rights. What areas of government decision making would be next to be removed from the scrutiny of the courts? What is the use of the courts, if you cannot access them?".

Let me give an analogy: we are the envy of the world in which our justice system operates. The lives of so many decent people, particularly in the third world, have been saved because their authorities follow our legal process. It beggars belief what would be the reaction of the British Government if dictators curtailed the judicial process as we seem to have done, or are thinking of doing, regarding the right of appeal.

In a democracy no one is above the law, not even the tribunals. Vernon Bogdanor, Professor of Government at Oxford, is right when he says:


    "The clause . . . is not to be condemned merely because it will promote inefficiency. It is a constitutional outrage, and almost unprecedented in peacetime".

What surprises me is how long it took the Government to suggest improvement.

At the root of my argument is the concern expressed by many practitioners about the poor quality of initial decision-making by the Home Office. If the process here were effective, the number of successful appeals at adjudication stage would be reduced.

When I ask for information on specific cases, I am denied it by the immigration Minister at the Home Office. Recently, I sought information about a detainee at his request. This is the reply that I received from the Minister, Beverley Hughes:


    "I hope that you will understand that the Home Office records on individuals have to be treated as confidential. I appreciate your concern but as you are not acting for Mr. X, nor are his constituency Member of Parliament, I regret that I cannot give you any information regarding this case".

Obviously, I am left to ask the Parliamentary Ombudsman whether the Minister is justified in withholding information from a Member of your Lordships' House, particularly when that information was requested by the person who was to be deported.

The point at issue is that the Government have imposed cuts in legal aid for immigration and asylum cases. Five hours for asylum case advice and three hours for immigration case advice will mean that in many cases applicants may be unrepresented. They are most vulnerable at a time when legal representation could make all the difference. Surely a right of appeal is vital in such cases.

There has been much adverse publicity relating to Clause 8, which seeks to deny financial support and accommodation, currently provided by NASS, to the families of asylum seekers whose appeals have been dismissed. No matter how the Government try to disguise the implication, it is clear that in order for a local authority to maintain its obligation to the welfare of children in such families, they may have to be placed into the care of that authority.

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There is ample evidence to confirm that, even if an appeal has been dismissed, there are applicants who fear to return or cannot be returned. We now have a government that will ensure that families will be forced to live in poverty until they depart. Let me remind the Government that there are families who are prepared to face prosecution in their own homeland but the only reason that they have sought asylum here is to protect their children from harm.

More than anything else, I want the Government to lead on such issues, and not to follow public opinion shaped by tabloids. So far, I have seen very little evidence of that.

6.13 p.m.

Lord Donaldson of Lymington: My Lords, many people, both within and outside this House, have condemned the ouster provisions of Clause 14 as a constitutional outrage and an affront to the rule of law. Suffice it to say that I wholeheartedly agree. Fortunately, it appears that the Government have now had second thoughts. We need not, therefore, stop to consider, as otherwise we would have done, what would and should have been the response of the judiciary had the clause been law, interesting and important though that would have been.

What is not about to go away is the problem of how to deal fairly and expeditiously with the vast numbers of asylum and immigration applications. In seeking a solution, it is necessary to identify at which level things are going wrong. Government Ministers, in particular the Home Secretary, point a finger at the courts. Thus, David Blunkett, at Second Reading in the other place, said that Clause 14,


    "will cut out the terrible situation in which, despite the adjudication system, which weeds out initial decisions that are doubtful, we end up with months and sometimes years of prevarication before action can be taken".

He said that Clause 14 would ensure that,


    "we do not end up with judicial review after judicial review on claims that are not valid".—[Official Report, Commons, 17/12/03; col. 1603.]

The Home Secretary seems blithely to ignore Section 101 of the 2002 Act, which requires would-be asylum seekers to seek leave to appeal from the Immigration Appeal Tribunal if they want to appeal a decision by an adjudicator. Since 9 June last year, if that leave is refused by the tribunal, asylum seekers can apply for a review of the refusal by the High Court. That is a paper application dealt with by a single High Court judge of the Administrative Court.

Between 9 June 2003 and 27 February this year, the High Court dealt with 552 such applications. The average delay between the time when the application was received by the High Court and the time when it was disposed of was 14 days—more accurately, it was 13.9, but I am prepared to take that as being 14. That is something of which the High Court can justly be proud. What is disturbing is that 20 per cent of those applications succeeded. In other words, the Immigration Appeal Tribunal should not have refused leave in more than 100 cases.

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I do not understand the Home Secretary's reference to,


    "judicial review after judicial review",

unless, when a decision was quashed by the High Court, the authority came back with an equally defective decision. It happened sometimes, but very rarely, when I was concerned with the work of the administrative court.

The alternative, which is slightly more charitable, is that the delays were such that, by the time the tribunal had come to reconsider the matter in response to the order of the administrative court, things had changed out of all recognition and a new situation had arisen which itself called for a review. I do not know, but I doubt whether we shall ever find out. Still less do I understand the Home Secretary's reference to,


    "months and sometimes years of prevarication",

unless he is speaking of delays by Home Office officials in reaching an initial "immigration decision" and/or delays in appeals to adjudicators, and/or delays in appeals from adjudicators to the Immigration Appeal Tribunal. Unfortunately, the Home Office has not given us any figures for such delays.

The caseload may be declining—I have certainly read that the Government make that claim—but it must still be enormous. Between October 2002 and September 2003 an unknown number of immigration decisions were made, but no fewer than 70,000 of them were the subject of appeals to adjudicators. Of that 70,000, no fewer than 11,000 succeeded. That left some 60,000, of which half—33,000, to be exact—sought appeal to the Immigration Appeal Tribunal, where 2,000 were successful. If the adjudicator level of appeal were eliminated, I very much doubt whether the Immigration Appeal Tribunal could cope. I am sure that the administrative court would be under considerable strain because so many would be seeking judicial review, and, on previous figures, a great many of them would be right. There would also be the intriguing possibility that the Home Office would seek review on so many occasions as to become itself a vexatious litigant, but we must wait and see how that turns out.

Surely the remedy lies, not in tampering with the levels of appeal, but in a determined effort by training and supervision to improve the poor standard of decision-making by Home Office officials. Coupled with that, the number of adjudicators and of judges of the Immigration Appeal Tribunal may need to be increased. Asylum seekers are likely always to regard delay in being deported as a desirable aim in itself. Only if, and when, it becomes apparent to them that appeals are dealt with so quickly that the effort is not worth it will the flood of appeals subside.

Finally, steps should be taken to curb the wholly unjustified enthusiasm of some lawyers for promoting proceedings which they should know cannot possibly succeed. They have a duty not to pander to their clients' desire for relief from the tribunals and the court and, above all, their clients' desire simply to achieve delay. To that end, I suggest very strongly—I suggested it much earlier, although not in this

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context—that the legal aid authorities should insist that in every case where proceedings recommended by counsel fail, certainly those strongly recommended, counsel should be required to give a free written opinion explaining why the proceedings failed. That might well be a salutary curb on such enthusiasm, which in some cases—I regret to say—is fuelled by the desire to earn fees in the process.

Whatever is the way forward, it is certainly not to be found in Clause 14. I am delighted to hear that Clause 14 is to be consigned to the bin rather than being reformed, because I doubt whether it is capable of reform.

6.21 p.m.

Lord Newton of Braintree: My Lords, it will not surprise anybody looking at the list or hearing the speeches that have been made since this debate started that a mere non-lawyer rises with some diffidence to address the House against the background of what has already been said. On the other hand it is quite important, given some of the controversy that has occurred and the reports that we have seen in the press, that it should be made reasonably clear that this is not just a spat between lawyers or a protection of the interests of lawyers, however grand. There are real issues for members of the public, and not least for those who will be affected by the operation of these asylum and immigration provisions.

My rationale for taking part in the debate is in part that I currently hold the office of chairman of the Council on Tribunals. My predecessor was the noble and learned Lord, Lord Archer of Sandwell, so I am relatively rare in being a non-lawyer in that capacity. The council was set up by the Tribunals and Inquiries Act 1958 to keep under review the constitution and working of a wide range of tribunals. We now supervise some 80 different kinds of tribunals, including the adjudicators and the Immigration Appeal Tribunal. It is intended that the new tribunal will be under the council's supervision, and therefore my remarks are principally directed to the proposals under Clause 14.

I suspect that, like many others taking part in this debate, the remarks that I originally intended will be somewhat truncated, partly by the Government Chief Whip's injunctions about the time that we were supposed to take if the House was to rise at a respectable hour, and partly because I am also among those whose principal concern was the ouster provisions of Clause 14, which to some extent at least—though we cannot yet be quite clear to what extent—have been disarmed in advance by the noble and learned Lord the Lord Chancellor and Secretary of State. He recognised very wisely that that clause—or some aspects of it—had trouble written all over it.

Without going on about it at length, I should also make the observation that when the Council on Tribunals responded to the very short consultation that preceded the Bill's introduction, it made it clear that it was not enthusiastic about the move to a single tier of appeal. It is not on that point that I propose to

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focus most of my brief remarks this afternoon, but there did seem some irony that this proposal came forward not very long after the Leggatt report, Tribunals for Users, in 2001, which recommended that there should be a two tier system for tribunals generally, with the observation that:


    "the appeal body needs to give genuine coherence to the development of the law, and promote consistency effectively at its own level and in the first tier tribunals".

In that sentence alone lie the reasons for our concern about some aspects of the proposal.

I do not want to make a meal of that this afternoon, merely to say that obviously any difficulties arising from the fact that this was now to be a single tier would be compounded if access to the higher courts were restricted in the way that appeared to be proposed by what was—when this Bill was published—the most comprehensive ouster clause ever devised.

I observe in passing that there was again some irony for the Council on Tribunals, since the Tribunals and Inquiries Act 1958—under which it was set up—provided an avenue of appeal from tribunals to the courts on points of law in cases where none had existed before. It rendered ineffective all the then subsisting statutory provisions purporting to oust the courts' supervisory jurisdiction. Against that historic background—and the reasons for the changes then made—it would be no surprise to anybody that the ouster clause in the Bill, as it stood, caused the Council on Tribunals serious concern because of its implications for tribunals generally. I made that clear when I was invited to give evidence to the Constitutional Affairs Committee in January. We submitted a memorandum to the committee setting out our concerns, and I can do no more this afternoon than endorse the committee's observations in that regard.

We need to be clear that the major practical issue is whether the provisions in Clause 14 for review of tribunal decisions by the tribunal itself, and for references of points of law by the president of the tribunal to the appellate court, provide adequate protection against incorrect decisions. I can only say, without elaborating in view of the time available, that in the council's view they do not.

I echo words that have already been expressed by others in this debate. All this might matter less if the issues at stake for individuals were not so serious and if the quality of initial decision making in the Home Office were better. But, at present, all too often a case receives full and proper consideration only when it comes before an adjudicator on appeal. Even then, problems frequently arise through poor preparation and the absence of a Home Office presenting officer. A further consideration is the recent restriction of publicly funded advice, assistance and representation in immigration and asylum cases. All these factors make it all the more important that there should be an adequate mechanism for appeal decisions to be reviewed.

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At the council's request, some little time ago I wrote on its behalf to the noble and learned Lord the Lord Chancellor and Secretary of State, to express its continuing concern about Clause 14 and particularly the ouster provision. I hope that the council's views played some part—possibly not quite as much as the views of the noble and learned Lord the Lord Chief Justice and others—in what the Minister said at the outset of the debate this afternoon. I very much welcome the indicated concession. Like everybody else, I shall study it with care, but I genuinely hope that it will provide a real answer to the concerns which I echo, building on what was said by noble and learned judges and others earlier in the debate.

6.28 p.m.

Lord Avebury: My Lords, what the noble Lord, Lord Newton of Braintree, said about the Leggatt report is extremely important. We should consider carefully not just Clause 14 but also whether we are now prepared to scrap the two tier system which has stood the test of time and is under severe criticism now only because, as the noble and learned Lord the Lord Chancellor said at the beginning of his remarks, there are long delays and people are spinning out the process. But that is in the context of 2003 and we are changing very rapidly as a result of steps already taken: non-suspensive appeals, juxtaposed controls, new visa regimes, the forthcoming enlargement of the European Union—which removes many of the countries from the list of those that provide asylum seekers—introduction of fingerprinting in Sri Lanka and the extension of that process to the countries of east Africa in 2004. So, there will be, irrespective of anything that we do in the Bill, a substantial fall in numbers—all the way through the process, from initial applications to appeals to the adjudicator and then, if we did nothing, appeals from the adjudicator to the tribunals.

The only thing that does not seem to be going down—I agree with the noble and learned Lord on this—is the number of undocumented arrivals, which remains stubbornly in one place, in spite of the successes that we have achieved on Eurostar. At Dover and Heathrow, particularly Terminal 2, it is still a problem. As the noble and learned Lord the Lord Chancellor said, the Government are considering proposals for carriers to copy the documentation held by passengers at the time of boarding, so that the identity of a person can be established by comparing his photograph in the document copy with the undocumented passenger himself, when he arrives. Presumably, that would be done initially at selected pilot departure points, so that we could see how difficult it is to match up the information. I draw to the Minister's attention a letter that we have received from British Airways urging that the proposal be confined initially to carefully targeted and specific routes, so that we know how it works and can minimise the burdens that it imposes on the carriers.

It is true that the number of appeals to adjudicators went up between 2002 and 2003, as has been mentioned, but that is because they were reducing the

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backlog. In the last three months of 2003, numbers were beginning to fall, and that trend is also certain to continue in 2004. In the absence of the Bill, that would mean fewer adjudicators. I hope that the opportunity will be taken to improve the quality of adjudicators, as well as the quality of first decisions. Neither is satisfactory, considering the success rate of appeals at both stages. That reduction would also feed through to the tribunal, if the present regime were not going to be altered by the Bill. The Government accept that, of the one-third of applicants who are given leave to appeal to the tribunal—they are only rough estimates, because the cases are not tracked through the system—three out of five are either allowed outright or remitted to an adjudicator for a fresh hearing.

The House is of one mind in wanting to see decisions on applications made as quickly as possible. However, if the initial decisions were more reliable, as has been said, many people would accept the adjudicator's decision, fewer applicants would get leave to appeal to the tribunal, and the upheaval in the system caused by the Bill would be unnecessary for the sake of a small proportion of important cases in which permission would still be given. In another place, Mr David Lammy told the Chairman of Standing Committee B that, of 78,000 adjudicated determinations before September 2003, 33,000 were appealed and, of those, 11,000 were granted. Miss Kate Eshun, a former adjudicator and now vice-president of the tribunal, told the Select Committee on Constitutional Affairs that the level of appeals rose dramatically because,


    "there were cases in which the decision written by the Home Office was very poor and, therefore, without the aid of the Home Office presenting officer at the hearing, the adjudicator was more or less left in the dark".

The evidence given by Sir Duncan Ouseley to the Select Committee on Constitutional Affairs in another place is also of some importance. He said that one-third of those who applied for leave to appeal to the tribunal and to whom it was granted cannot be said to have abused the system. Either they have an arguable point, or they have, at least, been told by their legal advisers that they have an arguable point. For the two-thirds who are refused, he said, the time taken to process their cases is a measure of the delay created by the existence of a second tier, which, as the noble Lord, Lord Newton of Braintree, explained, is necessary in every other context.

Sir Duncan Ouseley also said that applications for statutory review of refusal of leave to appeal to the tribunal under Section 101 of the Nationality, Immigration and Asylum Act 2002, which was mentioned by the noble and learned Lord, Lord Donaldson of Lymington, were being made at the rate of 35 a week and were being turned round within a week or so by the administrative courts. That alternative system, which the Government promoted enthusiastically two years ago and has operated for less than a year, is being confined to the dustbin, along with the existing tribunal, although it is working well.

Since adjudicators have been reducing the backlog, cases are still coming to the tribunal at the rate of 1,000 a month. At the end of February, there was a backlog

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of 5,000 cases. That is causing delays. However, in the steady state, the tribunal would get 5,000 cases a year, a number that it can easily accommodate. From that analysis, it is clear that, with regard to the speed of decision making and the cost of the process, 2003 would not be a useful guide to future policy. No sufficient test has been done on the system in place, with the improvements that are acknowledged to be necessary by all concerned.

Before I close, I shall tell your Lordships about the case of a person who appealed through judicial review, Jacqueline Konan and her little girl, Thelma. The case was heard before Mr Justice Collins on 21 January. The judge said:


    "It is a cautionary tale since it shows that . . . officials"—

the Home Office officials—


    "and the appellate authorities can be wrong and that there is a need for judicial assessment . . . If the possibility of judicial review had not existed the claimants would wrongly have been returned to the Ivory Coast".

The judge described the Home Office's refusal to release Jacqueline and her little girl, Thelma, as "inexplicable". I certainly found it so, and I had written on 10 occasions to the Minister, Beverley Hughes, or to the noble Lord, Lord Filkin, as well as to officials and adjudicators, up to the point at which the mother and daughter were finally released on bail, after 190 days in custody.

I put it to the Minister on 5 November that there were lessons to be learnt from the case, and I outlined what some of them were. I added that I hoped that she would not adopt the tactic so often adopted by the Home Office when faced with awkward problems and delay her response for as long as possible. By January, the Minister had not replied, so I wrote to her again, calling her attention to Mr Justice Collins's decision that Jacqueline and Thelma's detention had been unlawful and that Ministers' continued refusal to consider release was manifestly contrary to public policy.

Things can go so badly wrong, even when the case has been dealt with by an adjudicator and has been the subject of extensive correspondence with Ministers. By scrapping judicial review without, at least, replacing it with as effective an alternative, Parliament would make it inevitable that, sooner or later, many other Jacquelines who have been failed by the system were sent back to persecution and even death, because that right had been withdrawn.

6.38 p.m.

Lord Parekh: My Lords, I see the need for the Bill and welcome many parts of it, but I am uneasy about several other parts. I shall concentrate briefly on three disturbing features of the Bill.

Many noble Lords have spoken eloquently about the unified appeal system and the ouster of judicial review that is proposed in the Bill. I share their unease. We must all acknowledge the problems involved with endless appeals, with all their cost and delay, and we can also concede readily that a system of endless appeals in which we cannot get rid of those who have

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failed could easily make Britain a soft option and attract or invite dubious asylum applications. However, I do not think that the unified appeal system proposed here is the answer. As many noble Lords have said, it violates the rule of law. It also violates the principles of natural justice. If we consider the past few years, we will see that the system of judicial review has often been the only hope for securing justice for a large number of people. Although I cannot calculate it, I can imagine that many lives have been saved, simply because the system was in operation.

In the current system, one in five decisions is overturned at the initial decision stage—22 per cent. This figure rises to as high as one in three when Somalis and Sudanese are involved. Even when an appeal is made and the decision is taken by the Immigration Appeal Tribunal, 15 per cent of cases are either overturned or referred back by the courts. All this goes to show that judicial review has been the only guarantee of justice for victims of persecution.

I know that the Government intend to deal with this by improving the quality of decision making. I welcome that, especially the efforts being made, for example, to consult the United Nations High Commissioner for Refugees, and to introduce training input by organisations with specialist skills and so on. I am sure that all this will improve the quality of decision making. I also welcome the formation of the Country Information Advisory Panel, on which I have been invited to serve.

But that only goes to show that the quality of decision making will improve. It does not guarantee that it will be perfect or that it will not be open either to abuse or to mistakes. Why not, therefore, retain the system of judicial review and see what happens after a couple of years? If the new system the Government want to put in place works well—one with improved decision-making and the input of the Country Information Advisory Panel—we shall be able to decide after a couple of years whether many appeals have been made against its decisions and thus whether it has succeeded. At that point we might take a second look at the process of judicial review. Until then, I see the case for it as inviolable.

I turn now to the proposal in the Bill to deny benefits to failed applicants. The hope here is that this will encourage them to depart voluntarily. I am afraid that I do not see the logic of this argument, or the ethics of it. As long as people are here, it is simply unworthy of us even to think in terms of denying them any form of maintenance. Although it may not be our intention to starve people into submission, this move will be seen as such by those outside and might have that kind of impact on the people involved. In any case, I am not entirely sure whether it has any chance of working. Children could be taken into care, which only makes them a problem. Devoid of parental support, children in care are not likely to do any better and therefore will become a problem for the Exchequer and the Government.

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I turn briefly to my third point. Time is moving on and I know that other noble Lords wish to speak. I am a little surprised that not much has been said about Clause 27, dealing with the fees which the Government want to increase. These fees relate to the application for a certificate of entitlement to the right of abode and an immigration employment document. The Government argue that fees could be charged considerably in excess of the administrative costs involved because the claimants, if successful, are likely to benefit from the successful application.

I know that the Home Secretary has promised to consult before laying the order before Parliament. I should like him to think very carefully about this measure. It would affect nearly half a million people. If successful, those people will get jobs and benefit us through the taxation system, therefore I do not see why they should be made to pay additional costs.

I also want the Government to appreciate that we already benefit from a high number of trained immigrants. Doctors and IT specialists come to us fully trained. Recently I produced some figures showing that if we had to train the 5,000 odd doctors who come to us from the Indian sub-continent here, that would cost us somewhere in the region of 900 million. A doctor who comes here fully trained saves us around 225,000 in training costs. Multiply that by 5,000 and you get an astronomical figure for the contribution made by the poor people of the Indian sub-continent. Given that we derive all these invisible benefits, I cannot understand why we would want to take into account such benefits as people may gain in the future by trying to collect more money through increasing the fees on their applications.

I am also worried about the increased fees that foreign students have to pay in order to extend their visas to complete their courses. Although it has now become an established practice, reference is made to it in the Bill and so I feel entitled to talk about it. This is punitive. Already overseas students pay hefty tuition fees. Many come from poor and low-income families and have to save every penny in order to receive a decent education here. Experts have calculated how much higher education fees contribute to this country. It brings in something in the region of 7 billion a year. Students who study here also generate an enormous amount of goodwill when they go home, thus providing a valuable network. Good sense and generosity require us to resist the temptation to make a few thousand pounds either by increasing the fees that students have to pay or by increasing the fees to be paid by those applying for employment and so forth.

I end by making an appeal to the Government. As the noble Lord, Lord Dholakia, rightly pointed out, we should not allow ourselves to be panicked into taking decisions on a question of this magnitude. The number of asylum seekers is declining. Given that seeking asylum takes place largely as a consequence of political and economic instability in certain parts of the world, it is therefore not a permanent feature of the global landscape. Some asylum seekers do beat the system, but then who does not? Many of us have done so over the centuries, and those who colonise other

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countries have not refrained from doing so either. I want to suggest that while desperate people struggling to outsmart the system deserve to be restrained, they must also be approached with a certain measure of compassion. Our asylum policy must be firm but compassionate.

Increasingly, as Bill follows Bill and legislation follows legislation, we have concentrated on tightening up the system, making it even firmer, rather than showing a little compassion. Let us ask ourselves this. My noble and learned friend the Lord Chancellor has said that he is prepared to make concessions on the ousting of judicial review. But the question that puzzles me is this: how did the ouster of judicial review get there in the first instance, and why is it that those of us on the Labour side feel that we can even countenance a step of this kind? That is what worries me. If we are not very careful, the constant tightening of the screw and the constant sense of panic will easily coarsen our moral and even legal sensibility, trapping us into taking decisions of which we might be ashamed a few years from now.

6.47 p.m.

Earl Russell: My Lords, we are not usually in the habit of thinking about Aristotle and Jo Grimond in the same breath. But in the 1980s Jo Grimond made a very interesting remark—that governments tend to suffer from a legislative stammer. They keep on and on legislating about the same subject. At the time it was trade unions, then it was local government, then universities and now it is asylum. When governments do this, it usually means that they are trying to do something which cannot be done. Aristotle remarked that it is essential, in passing good law, for legislators to go home and be subject to the laws they have made. Not many people in this House have been asylum seekers. When we listen to those who have, we hear immediately a wave of comprehension that we do not get from many of the speeches here.

I think that asylum policy is failing because it is directed towards achieving something which is, first, not under the Government's control—that is, reducing the number of applications. The biggest single increase in applications in my time was caused by the break-up of Yugoslavia. I have no inhibitions about blaming Tony Blair, but I do not blame him for that. So the Government are trying to do something they cannot do, and which would not be desirable if they could do so.

The central assumption of the restrictionist case is that the fewer people we have coming in from outside, the better the race relations that will result. I happen to have the honour of being president of the Liberal Democrats in the London Borough of Brent, where we have more Uganda Asians than in Leicester.

The borough is, I think, just behind Newham as the greatest concentration of ethnic minorities in the country. What is vital about Brent is that it is not just two or three groups. It is a mixture of everything one can think of. At the end of a by-election, one surname usually sticks in one's memory. From Brent it is

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Ratnayake-Brederode, which is not merely cosmopolitan, but also a reminder of the days when Sri Lanka used to be a Dutch colony. I do not think reducing racial diversity is necessarily conducive to racial harmony.

I am delighted by what I hear about Clause 14, but since the compromise is not yet finished, it is necessary to say just a few words about it. If it had been successful, it would have had a claim to be regarded as the worst threat to the rule of law since Magna Carta. I know that plenty of other things can claim that; one could have a seminar on it. I say that of the clause, not because of the sharpness of its wolfish teeth, but because of the Jermyn Street smoothness of its sheep's clothing. I doubt whether 5 per cent of the population realise that there is a threat to the rule of law at the moment.

The device of making the arbitrary court the instrument of the rise of arbitrary power is, in its perverse way, nothing short of brilliant. As the noble and learned Lord, Lord Mackay of Clashfern, made clear by using Anisminic, it would also have the effect of bringing in an entirely positivist view of the law. It would cut us off from the wisdom of the laws of generations before Parliament, and from Glanville and Bracton. It would also cut us off from the 14th-century method of discovering the intention of Parliament by looking at the basic principles of the common law, from which a great deal of our present legislative thinking comes. That would be a very great loss, and all in order to avoid a delay, which—I agree with others who have spoken—emanates more from inside the Home Office than elsewhere.

For example, I once spent a large amount of time on the case raised by the noble Lord, Lord Alton of Liverpool, where the Home Office insisted that scars that the applicant claimed were the result of torture were in fact self-inflicted. Those scars were on his back. The Home Office fought that through several meetings with deputations of MPs. It is not in trouble for consumption of time.

On another occasion—a case discovered by Asylum Aid—an applicant was told by an adjudicator that his claim that he had been soaked in urine, beaten, stripped naked and locked in a cell by himself—all of which, he claimed, constituted torture—was so incredible that it deprived all the rest of his testimony of credibility. That seems to me to be a deliberate delay, and one for which I blame neither the applicant nor his lawyer.

The same goes for destruction of documents. From the same volume of Asylum Aid, Still No Reason At All, published to go with the previous Bill, the Home Office refused an application because the man came on his own passport and therefore, it said, could not possibly be in any danger. When the Home Office says all this stuff about destruction of documents, it knows better. I came to know quite well one person who came here from Pristina. She saw her house in flames, and she saw Serbs setting fire to it, but she could not prove that they had actually burnt her documents. Under

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this doctrine of burden of proof, she could not make her case stand. It is, I think, a mistaken use of burden of proof.

The total denial of support is something that, frankly, I am astonished that any civilised government use as an instrument of policy. If I may, I should like to tell the House of my last fully rational conversation with my wife. She had been told she was dying in terms that I witnessed, and I can testify they were plain. She chose not to take it in, so I had to make it plain to her. When this had been done, and when all those things had been said which must be said, we had a few moments of lucidity left. I told her about an incident on the day I brought her in to Casualty.

When I went out for my breakfast coffee at half past three, it was cold in the way it only can be in January off Gower Street, the wind creeping into every doorway around. I saw a man crouched in a doorway like a dog, with his cap over his face to keep the wind off. I went up to him and gave him a pound. He said, "Oh, thank you. You are the first person who has come near me all day". I told my wife this, and I said that there was she, inside, full of fear and full of pain, but receiving care and warmth, and with people prepared to come round her with love and affection more than any hospital room could hold; and there was he, apparently in good health, but knowing that nobody cared whether he was alive or dead. I said that I wondered which of these people I would rather be. After a long pause, she replied to me, "Yes. I think perhaps you are right".

If that comparison can be made by someone who is on the point of death, one has here a policy which no civilised Government should ever adopt.


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