Borders, Citizenship and Immigration Bill [HL]

My Lords, I am unable to make any contribution to Parts 1, 2 and 3 of the Bill; my only reason for seeking to speak at Second Reading is my concern about Clause 50. I therefore concede at once that I do not deserve such a high place as I have achieved in the batting order. I am afraid that explaining my concern means going back over a little recent history. My trouble is that it is difficult to do that without having in front of us the text of the Tribunals, Courts and Enforcement Act 2007, but I shall do my best. Clause 50 on its face seeks to amend the Supreme Court Act 1981, but in reality it amends the tribunals Act—which I shall call it for short—passed less than two years ago. When the Bill that became the Act had its Second Reading on 29 November 2006, a number of your Lordships, including me, had considerable concerns about the transfer of judicial review appeals from the High Court to the Upper Tribunal, where they might be heard by judges other than High Court judges. The reason for our concern was that judicial review cases often involve high-profile issues and, very often, difficult questions of law. I therefore put down an amendment either in Committee or on Report—I am not quite sure which—to ensure that when judicial review cases were transferred to the Upper Tribunal, as to which I certainly had no objection, they should be heard, as they always had been, by a High Court judge. That amendment was supported by the Conservatives and the Liberals, but it did not have the support of the Lord Chief Justice. He was concerned by the very heavy burden then resting on the administrative court; he was concerned at the need that he felt to deploy judges in the most suitable way; and he pointed out that judicial review cases do not all involve consideration of matters of great importance. He set out all of that in a letter of 7 February 2007 and it was fully accepted by everybody and understood. The noble Baroness, Lady Ashton, then suggested that there might be further discussions to resolve the problem. Those discussions indeed took place and, as a result, I put down an amendment at Third Reading which provided for judicial review to be heard in the Upper Tribunal by a High Court judge or such other person as might be agreed by the Lord Chief Justice and the Senior President. Everybody was satisfied with that solution, which is now to be found in Section 18(8) of the Act. However, all that was against the background that transfer of judicial review in immigration cases was excluded altogether, which was the effect of condition 4 set out in Section 19(1). That condition will repealed if Clause 50 is accepted as it stands. I need not dwell on the reasons why judicial review in immigration cases was excluded; I am sure they will be familiar to most of your Lordships. The problem, as I saw it then, was that judicial review in immigration cases was not excluded altogether because the Bill as first presented in this House contained a power conferred on the Lord Chancellor to override condition 4 if he should think fit; that condition was included in Section 31A(7)(b). It so happened that the Lord Chancellor moved the Second Reading of the Bill. During the course of that debate I asked him what the Government's intentions were in relation to that power conferred on him under the Bill as it stood. He replied that, "““the intention of the Bill is not to revisit the territory to which I think the noble and learned Lord is implicitly referring. The intention is to refer to the upper tier of the tribunal issues that are currently dealt with by the High Court; for example, specific tax questions or vires questions about, say, social security, and some immigration questions that, with the agreement of the Chief Justice and the Lord Chancellor, would be better dealt with by tribunals””.—[Official Report, 29/11/06; col. 762.]" He carried on in the same vein. My understanding of that was clear; that the Government did not at that stage intend to interfere largely with the view that had always been taken in immigration cases. That was confirmed when paragraph (b), to which I referred earlier, was deleted on Report in this House. Therefore, at that stage, only two years ago, the Government seemed to be content that immigration cases should remain where they had always been. I turn to Clause 50 in the Bill. If the effect of repealing condition 4, which is what the clause purports to do, is that the administrative court would be bound to transfer judicial review applications in all immigration cases, I would be strongly opposed to it. Nobody wants that. It is not what the Government want, as one can see from paragraph 38 of their consultation paper, and it is not what the President of the Queen's Bench Division wants, as one can see from paragraph 10 of his response to the consultation paper. Yet, transfer of immigration cases would be mandatory if there were to be a direction by the Lord Chancellor and the Lord Chief Justice under Part 1 of Schedule 2 to the Constitutional Reform Act 2005 to satisfy condition 3 in Section 19. I accept that this is a complicated question, but perhaps the Minister will confirm that the Government do not intend to make a direction under Part 1 of Schedule 2 to the Constitutional Reform Act in relation to immigration cases. Assuming that that is right, it would appear that the High Court will have a discretion to transfer judicial review in immigration cases. Perhaps the Minister will confirm that my understanding in that case is correct. If so, it is a solution which we should all like to see. However, we need to have some clarification of how the discretion will be exercised, whether in accordance with rules or with guidance given by the Lord Chief justice, or how. Before the next stage of the Bill in this House, can we be given some indication of how the discretion is intended to be exercised? The essential thing in my view is that, to save judicial time, all applications for judicial review in immigration cases, either on an individual basis or as a class, should start in the administrative court and only then transfer to the Upper Tribunal. However, we need to know how this will be done before we reach the next stage of the Bill.