My Lords, perhaps I may add my support to the points that have been made by the noble Baroness, Lady Hamwee. I shall speak to Amendment 31A, which is in my name and that of the noble Baroness, Lady Lister of Burtersett.
Amendment 31A arises out of the concerns that have been expressed at paragraphs 48 to 53 by the Joint Committee on Human Rights in its eighth report of this Session. The concern is that, in cases where a person is resisting deportation on human rights grounds, Clause 12 will allow the Home Secretary to certify that the person concerned may be removed from the United Kingdom because there is not a real risk of serious irreversible harm and the individual would then be able to pursue the appeal against deportation only from abroad. The Government say that judicial review will be available to such a person to challenge the removal decision while the appeal is pending.
The JCHR has expressed its concern about whether judicial review will provide a practical and effective means of challenging the certification by the Secretary of State that the appeal can be heard from abroad. The JCHR has drawn attention to the Government’s proposed changes to judicial review to restrict its availability and has emphasised the reductions in legal aid. The Joint Committee returned to this subject in its 12th report, published on 26 February.
I share the concerns that have been expressed by the JCHR, and I would add that it is more than a little ironic that the Government’s policy has hitherto been to reduce the number of judicial reviews in the immigration context on the basis that appeals are much quicker and cheaper, and yet now the Government are saying that the individual’s protection will lie in a judicial review. In the light of the reductions in legal aid and the changes that the Government are proposing to judicial review, there are real concerns about whether or not an effective practical remedy will remain available to the individual.
I want to add one specific point to those that have been made by the JCHR. In cases of this kind, a claimant for judicial review will vitally depend on information and representations from interveners; that is, expert bodies that regularly assist the court—sometimes in writing, sometimes through oral submissions—for
example, by explaining to the court the practical conditions in the foreign state to which the person concerned is going to be deported.
Your Lordships will know that Clause 51 of the Criminal Justice and Courts Bill, which is currently before the other place, will oblige the court, other than in exceptional circumstances, to order an intervener to pay the costs incurred by the other parties as a result of the intervention—surprisingly, whether or not the intervention assists the court and, indeed, whether or not the party seeking costs from the intervener has succeeded in the judicial review. Does the Minister share my concern that, unless amended, Clause 51 of that Bill will inevitably deter interventions, which are vital in this type of case, and make it much more difficult for a person covered by Clause 12 of this Bill to bring an effective claim for judicial review? What assurances can the Minister give the Committee in response to my concerns and those set out more fully in the JCHR’s reports?