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Lord Filkin rose to move, That the House do agree with the Commons in their Amendments Nos. 28C and 28D to Lords Amendment No. 28 and do propose Amendment No. 28DA as a consequential amendment to Lords Amendment No. 57:
57 Page 39, leave out lines 30 to 41 and insert
"(w) may make provision about reconsideration of a decision pursuant to an order under section 103A(1) (which may, in particular, include provision about the action that may be taken on reconsideration and about the matters and evidence to which the Tribunal may have regard);
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(x) shall provide that a party to an appeal is to be treated as having received notice of the Tribunal's decision, unless the contrary is shown, at such time as may be specified in, or determined in accordance with, the rules;
(y) may make provision about proceedings under paragraph 30 of Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (transitional filter of applications for reconsideration from High Court to Tribunal);"
28DA Line 10, at end insert "(and may, in particular, make provision of a kind that may be made by rules of court under section 103A(5)(b))"
The noble Lord said: My Lords, Amendments Nos. 28C and 28D are minor amendments. They introduce an additional flexibility to the procedure for review. In the majority of cases, the High Court judge will simply look at the applicant's papers in order to decide whether or not there may have been an error of law. However, in some circumstances it may be appropriate for other submissions to be considered. These amendments allow flexibility to make provision for this through rules of court. An example of when it might be helpful for the respondent to file submissions involves fast-track cases. Where speed is key, allowing a respondent's submissions would enable the reconsideration to take place more quickly. I should clarify that in both cases, we are talking about a process whereby a High Court judge is considering whether to allow the case to be heard on a point of law and to be returned to the AIT for this purpose. It is not itself a hearing.
Amendment No. 28DA is consequential on Amendments Nos. 28C and 28D and introduces a similar flexibility for the review while the filter is in place. For an initial period, the review application will first be considered by the tribunal. This amendment means that the procedure rules for the AIT can similarly allow the tribunal to consider additional papers. I therefore urge noble Lords to agree to Amendments Nos. 28C, 28D and 28DA. I beg to move.
Moved, That the House do agree with the Commons in their Amendments Nos. 28C and 28D to Lords Amendment No. 28 and do propose Amendment No. 28DA as a consequential amendment to Lords Amendment No. 57.(Lord Filkin.)
This amendment brings us to the issue of lay members, which we discussed at a previous stage, when the House made clear its wish that lay members should be retained within the new asylum and immigration tribunal. The House argued that there was merit in them being there as a resource to the tribunal in certain cases.
As noble Lords will be aware, the Government did not believe that that was in principle desirable for reasons that I set out earlier. However, the Government have concluded, as can be seen from proceedings in another place, that we will not seek to insist on the removal of lay members from the tribunal;
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we have listened to the House in that respect. On the other hand, an amendment that was linked to itas least by implication or consequentiallywas that all tribunal panels should be three-member panels. We will consider that amendment later. In essence, in this process we are saying that we are content not to seek to remove lay members from the AIT. In a sense, our view is that it is important that the president of the tribunal has the discretion to deploy the judicial resourcesincluding lay membersas he or she thinks fit. That is very much in tune with our discussions on these issues.
There are specific amendments on these issues essentially because draftsmen have felt that for the avoidance of doubt or better drafting processes, they needed to be brought forward in a slightly different form. Their thrust, purpose or outcome is four-square with what I believe the House wanted when it pressed this matter at previous stages. With that prelude I shall also speak to Amendments Nos. 42, 43, 44 and 61 and Commons Amendments Nos. 61A to 61C thereto, which are part of the same group.
We are prepared to accept the will of the House that there should be a role for lay members in the new tribunal. This was expressed in the original Amendments Nos. 42, 43, 44 and 61. However, the drafting had unintended consequences, and so parliamentary counsel has produced Amendments Nos. 61A to 61C and 28E in lieu. They have the same effect.
One notable difference is that the drafting of Amendment No. 61A as opposed to Amendment No. 42 allows for the appointment as legally qualified members of the tribunal of people who do not satisfy the letter of the requirements in sub-paragraphs 2(a) to (c) of Schedule 1, but who none the less are suitably qualified, perhaps from academic legal experience or judicial experience gained in another jurisdiction.
I should, of course, be clear that we are accepting lay members, but we are not prepared to accept the amendment we shall come to laterAmendment No. 46that requires all cases to be heard by panels of three members.
The Minister is right in saying that, strictly speaking, the issues raised by Amendment No. 46A fall outside the group, but, nevertheless, I think it appropriate for me to say something about that matter now. I promise not to repeat myself when the Minister rises to introduce the line of amendments beginning with Amendment No. 46 later on.
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I should like to suggest, respectfully, that Amendment No. 46A, if not quite meeting the principle of three-member tribunals that we sought on Report, is nevertheless a good compromise. It gives the president of the tribunal the discretion, where appropriate, in cases which raise issues of legal or factual complexity, to have tribunals of more than one member while recognising that issues of cost cannot be entirely ignored when one is managing any form of public service. The Immigration Service is no different from any other public service in that respect. I recognise that the requirement of three-member tribunals in all circumstances could be too demanding a standard to meet. The drafting that the Minister has achieved, if I may say so, is in my view masterly. I should like to thank him very much indeed for the way in which he has responded to this issue.
Lord Avebury: My Lords, it is very welcome that the Government have responded to some of the concerns that were expressed at earlier stages of the Bill. I entirely accept the Minister's claim that this has been a listening exercise and that on the whole, with certain unfortunate exceptions, Ministers have been responsive to the views that were expressed in your Lordships' House.
I wish to ask the noble Lord only one question about the particular form in which these amendments are couched. As regards Amendment No. 61A, who will exercise this opinion when the Lord Chancellor is no longer sitting on the Woolsack? That event is not far distant in time and I should have thought we might have anticipated it in the drafting.
Lord Filkin: My Lords, I am delighted to accept the inference of the noble Lord, Lord Avebury, that on this matter we are talking about "when" not "if", as I am sure is the case. The answer to the question asked by the noble Lord, Lord Kingsland, is that those responsibilities will be picked up by whatever successor authority the House so decides, but clearly the Government's intention is that it is picked up by the relevant Secretary of State, as we discussed in our many fulsome debates yesterday.
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