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Lord Campbell of Alloway: My Lords, there has been discussion and correspondence between myself and my noble friend the Minister about my proposals at Committee stage to amend the draft scheme to reflect the spirit of this amendment. My noble friend has explained and amplified the objections of my noble and learned friend Lord Rodger of Earlsferry, with whom I took issue. There is no amendment on the Marshalled List to implement my proposals, which seem to meand, informally, to some of your Lordshipsnot to be wholly unreasonable. But it is not possible to carry in such an amendment, as far as I am aware, to a draft scheme which is still in draft.
The argument to be advanced by my noble friend the Minister is understood, albeit with reluctance. It is conceded that the spirit of the amendment of the noble and learned Lord is not without attraction. It is said, however, that the great majority of appeals will be about eligibility as distinct from quantum but that where eligibility is established and compensation is refused, to afford an oral hearing would be no more than a false gesture affording and generating a false expectation. I am not so sure, and I think Mr. Justice Megarry would share my doubts.
There are also questions which will be put forward as to detriment to expedition and the question of resources relevant to an estimated 10,000 oral hearings a year, the cost of which includes the reimbursement of the appellant's travelling expenses. So, although this has an elementand a strong elementof administrative convenience in it, it cannot fairly be said to be exclusively related to administrative convenience.
In any event, my proposals are not acceptable. They were advanced on the basis that I could not support the amendment of the noble and learned Lord which carried the right of this oral hearing onto the face of the Bill. I have already given the reasons, which were advanced in Committee (Hansard col. 715), and that remains my position today. I cannot pretend that the situation is entirely satisfactory.
Lord Archer of Sandwell: My Lords, I would like to add a word of support to the noble and learned Lord. Your Lordships may recollect that under the Asylum and Immigration Appeals Act 1993 an asylum seeker who is refused asylum may appeal to a special adjudicator. At the time of the Bill the Government sought to say that, if the Secretary of State certified that the appeal was without foundation, it should be dismissed without a hearing. In the face of widespread representations, the Government relented. Schedule 2, paragraph 5, of the Act now provides that, if the Secretary of State certifies that the appeal is without foundation, that issue is itself tried at an oral hearing before a special adjudicator.
I have been privileged to attend some of those hearings. They work fairly and no one suggests that they occasion undue delay. I would like to knowand, as I have not given the noble and learned Lord notice of the question, I fully understand if he cannot answer todaywhat proportion of those appeals from a certificate that they are without foundation actually transpire to be without foundation. One thing of which I am pretty certain is that there are some. They are not all found to be without foundation. If the question arises at a later stage in our deliberations, perhaps those statistics may be available.
I do not believe that without an oral hearing any appeal can be said to be without foundation. Certainly to say it to the proposed appellant will do exactly what the noble Lord said a few moments agoit will send the appellant away convinced that he has not had a hearing.
Lord Carlisle of Bucklow: My Lords, the proposal that appeals should be refused without a hearing is one that we have at the moment under the criminal injuries compensation scheme. We have had it for the past few years, and in relation to the whole of the criminal justice scheme it has been shown to have its advantages. I think I am right in saying that there were 644 cases last year where applications for a hearing were refused and no hearing took place. We get a great number of very frivolous and hopeless applications, partly because we have no sanctions against anyone who choses to make an application. I therefore accept that the power has to some extent been useful.
I notice that for the first time in the new scheme there will be a power against frivolous applications. In future if in the opinion of the adjudicator an appeal is frivolous or vexatious, he can reduce the amount of compensation to be awarded by such amount as considered appropriate. In the long run that will prove a greater deterrent than the refusal of any hearing at all.
Lord Rodger of Earlsferry: My Lords, we are considering this evening a matter which the noble and learned Lord, Lord Ackner, raised on a previous occasion. As I said on a previous occasion, I understand very well the thinking behind the noble and learned Lord's amendment. Nevertheless, having given the
We think that there should not be a universal right to an oral hearing for the reasons I explained on the previous occasionand they are reflected in the remarks of my noble friend Lord Carlislethat there are presented, and will be presented in the future, appeals which are simply without foundation. I fully accept that history showsand the noble and learned Lord, Lord Ackner, quoted a passage which talks of this, and we all know of casesthat people have succeeded when initially it was thought that they could not succeed. But that having been said, there plainly are cases where the appeal is hopeless because the person does not meet the eligibility rules. A clear example might be where an injury occurred abroad. I take an extreme example. The question in such cases is whether an oral hearing is a proper way of dealing with the matter.
The noble and learned Lord said that the hearing would not need to last long. On his analysis, we might get through 20 such hearings an hour, which looks as though they would take, on average, three minutes. To invite someone to attend, perhaps raising that person's expectations, and then to deliver the judgment and put him out within three minutes is unlikely to go far in assuaging his feeling that he has been hardly done by.
It is open to question whether a system such as that envisaged by the noble and learned Lord would help in the way that he suggests. As he said, I do not put a great deal of stress on the number of such hearings because I believe that they would not be large. It is not a question of 10,000 hearings but 10,000 hearings altogether. The figure will be more like the one of which my noble friend spoke. We feel that it would not be likely to assist the feeling of disappointment which the noble and learned Lord is seeking to assuage.
Against that, we have to set the fact that, although the number will not be large, such cases will, nonetheless, occupy part of the new body's time which could be used to deal with and dispose of more meritorious appeals. Taking an overall view, we believe that it is not right to have a universal right to make oral representations, but we anticipateI repeat thisthat in the vast majority of cases a hearing will be held. We believe in that situation the balance is right. I cannot reply to the question about figures asked by the noble and learned Lord, Lord Archer, but I dare say that I can find them and write to him.
Lord Ackner: My Lords, I observe from the reply from the noble and learned Lord the Lord Advocate that he is no longer saying that to allow such an appeal would involve a great deal of time and energy. If that had been his continued case, the answer would be simple. If it turned out that a great deal of time and energy was being wasted on meritless appeals, the scheme could be altered. There could be a negative resolution explaining that that is why automatic appeal was going to be withdrawn.
Secondly, the suggestion has been made that this would be no solace to the appellant who went away having failed in his appeal. I do not know how things are done in Scotland. My recollection and experience are down here. Having sat for three years in the court of the noble and learned Lord, Lord Denning, and having heard the way litigants in person were easily dealt with in three minutes by a simple, courteous explanation as to why the remedy being sought could not be given, and having observed that they queued up for the opportunity of appearing before him and having lost went away with a song in their heart, it seems to me that that type of situation can easily be dealt with here because we are dealing with a narrow subject in which the officials concerned should become expert very quickly.
This is a most ungenerous reaction to a situation where the very decisions themselves, even though justified, will in many cases cause deep resentment, and to let that resentment fester will merely mean that, quite unfairly, the scheme will get a tarnished reputation which could so easily be avoided.
I do not propose to divide the House. I am satisfied that I have won the debate in your Lordships' Chamber, and that if I put it to the test noble Lords would come in their scores, wondering what it was all about and asking which way they should go to voteperhaps not the best form of democracy. I beg leave to withdraw the amendment.