asked Her Majesty's Government:

My Lords, Royal Mail is currently undertaking a complete restructure of the business with the full backing of the Government. This is a huge undertaking for the company. I understand that, for the most part, the change has gone reasonably smoothly and is now working well. There have been some problems in certain areas and Royal Mail has apologised for the fall in service. Royal Mail has drawn up detailed plans to tackle these problems and DTI Ministers have Allan Leighton's personal assurance that these will be implemented vigorously.

My Lords, is the Minister aware that he has been misinformed? Nothing is going smoothly and it has not been going smoothly for many months. The Royal Mail is a national disgrace. I do not accept the figures that have been given. Is it not fraudulent for Royal Mail to charge people for a first-class stamp when it knows for certain that in many cases there is no hope of completing a first-class delivery?

My Lords, I think that the noble Baroness should be a little reserved about dismissing the figures. They are externally verified. The position is that the Post Office has rightly identified that its target was for 93 per cent of first-class mail to be delivered the next day and it hit only 90 per cent. It has apologised for falling short of that target. In other respects, the process of major restructuring in any company as large as this is bound to cause some difficulties in the short term.

My Lords, I declare an interest as a former postman with more than 50 years' experience of the Post Office. Is the Minister aware that it is the dedicated workforce, especially the regular delivery officers, who are bearing the brunt of the criticism—which is justified in many cases—and that they receive insults on the doorstep because of the deteriorating service? Does he agree that the increasing use of untrained, straight-from-the-agency staff to deliver people's important mail is causing widespread delay and misdeliveries? As the Government wholly own the Post Office, should they not be using their influence to halt the obscenity of paying senior managers vast bonuses for their failures?

My Lords, I agree with my noble friend that the vast majority of full-time postmen discharge their responsibility successfully and conscientiously. As he has indicated, there have been problems with regard to the employment of casual labour, which has been necessary because it is extremely difficult to recruit postmen in certain parts of the country. On the more general issue of pay and bonuses, the senior figures in the Post Office forsook their bonuses, except in the area of the financial target. It is in the area of the financial target that they have been successful. In all other areas, they did not receive bonuses.

My Lords, has the Minister read the report by his noble friend Lord Sawyer, which was circulated in the past 24 hours, on the question of labour relations within the Post Office? If he has read it, would he not agree that his somewhat optimistic statement to the noble Baroness regarding improvements in the Post Office, particularly in the Royal Mail, is perhaps undeserved?

My Lords, in a service industry like the Royal Mail, the relations between staff in the organisation are crucial. Last year was a bad year and, without any doubt at all, it contributed to the significant failure of the Post Office to hit certain targets. There is clear room for improvement. Assurances have been given to the Government that it is the area on which the management intend to put the highest priority.

My Lords, I recall reading in the press about two months ago that Royal Mail had decided to revert to the excellent practice of putting the time of the last post into the slot on post boxes. Does the Minister know when this will start?

My Lords, I had voluminous briefing for this Question but not a single reference to that particular point. The noble Lord has clearly indicated something that the Post Office ought to consider and we will make sure that his comments will be referred to it.

My Lords, will my noble friend confirm that even if there are difficulties with mail deliveries in some parts of the country—London may be an example—there are other parts of the country where the service is excellent; for example, in Cumbria? It is much to the dismay of postal workers in those parts of the country that they are being tarnished by the kind of allegations that have been made from the Benches opposite. There continues to be an excellent service in those parts of the north of England with which I am familiar.

My Lords, my noble friend is right that across the vast range of the country postmen are fulfilling their duties with the conscientiousness for which we have always respected them. There are one or two areas where there have been very considerable difficulties. At least one of those areas is one where there is a heavy movement of mail; namely; London. Last year, that contributed to the failure of certain aspects of the postal service.

My Lords, having heard the Minister's fulsome confidence in the future performance of the Post Office, can he assure the House that the cheque in the post will come more quickly than it has in the past?

My Lords, the noble Lord is one of those fortunate beings who receives cheques in the post. Many of us envy him.

My Lords, although it is good that my noble friend the Minister says that Post Office directors forwent bonuses last year in relation to delivery, they still received bonuses for financial performance. Financial performance is clearly important, but with delivery performance as appalling as it still is in some parts of the country, surely they should not receive any bonuses at all.

My Lords, I think the chairman of the Post Office is all too well aware of my noble friend's sentiment in this respect; he made it clear that he was not prepared to accept a bonus. However, there would be no point in having targets and bonuses attached to targets if the bonuses were not paid when the target was hit. As I indicated earlier, the financial target was hit. That was the area in which the bonus was paid.

My Lords, following the noble Lord's first—very polite, but perhaps somewhat complacent—Answer, and as he spoke a little later about London, is he aware that in the postal district where my office is located—in London W1, where there are loads of solicitors, accountants and professional people—the Royal Mail's target is to deliver the mail between 11 a.m. and 2 p.m., and that that is all? Does the Minister really think that delivering on such unrealistically low targets is what could be called a proper delivery service?

My Lords, there has been widespread recognition of the fact that the Royal Mail has moved to one delivery. That made financial sense because 20 per cent of its resources were being devoted to a delivery of only 4 per cent of the mail. The noble Baroness has identified the fact that the service needs to be improved—the chairman made it absolutely clear in his meeting with Ministers that he regards that as the top priority—and she is quite right. In parts of the London area the service has not been satisfactory and the Post Office recognises that fact.

asked Her Majesty's Government:

Yes, my Lords, the Government will bring forward fees regulations under the Act in good time for their coming into effect in January 2005. We have published draft regulations, and we will be bringing forward to Parliament a final version by October.

My Lords, does the Minister agree that a fee structure that charged exorbitant fees for freedom of information would in fact be the freedom to dine at the Ritz? Does he not grow more concerned every day about how far we have moved from those heady days when the noble Lord, Lord Clark of Windermere, brought forward his wonderful White Paper which cost him his job in the Cabinet? There was a commitment to freedom of information and to removing the culture of secrecy from Whitehall, in contrast to the position today when the culture of secrecy is firmly embedded in the Government.

My Lords, I agree with the noble Lord on his first point. A fee structure that acted in any way as a significant deterrent to people making use of their rights under the Act would go against the spirit and purpose of the Act. As for dining at the Ritz, I do not know whether that was an invitation, but I shall consult the Ministerial Code about it. As for the thrust of the noble Lord's question and the possibility that he has inferred from, I think, a wholly erroneous report in the Guardian that the Government are in some way negative or ambiguous about the importance of freedom of information in strengthening democratic participation, he is wrong. We will demonstrate that as the Act is implemented.

My Lords, has the Minister made any estimates on behalf of the Government as to how many new civil servant jobs will be required for this?

My Lords, the best answer would be to make it quite clear that the Treasury says that no additional money will be made available to departments as part of fulfilling their obligations under freedom of information. The noble Lord can draw his own conclusion from that answer.

My Lords, on that commitment to freedom of information, when I sat on the Select Committee that looked into freedom of information we took evidence from Canada and Ireland which was very strongly in favour of training civil servants in the run-up to implementation of the Act. What training programmes are the Government currently implementing?

My Lords, I cannot do justice to the scale of that question now, but I would be genuinely happy to have a discussion with the noble Lord to talk about it in more detail. In short, we are reviewing the matter with all government departments. I have had face-to-face discussions with every department about its implementation plans, and part of the review mechanism of course includes their training plans to ensure that all civil servants are properly trained. There is a judgment to be made about how soon one does that. One has to ensure at this point that there is general awareness, while delivering the high-pressure training nearer to the deadline date.

My Lords, in response to the question I asked, can the Government therefore confirm that the costs will be borne entirely by those making inquiries under the Act? Therefore, perhaps the noble Lord, Lord McNally, was right in suggesting that this may be a case of dining at the Ritz.

No, my Lords, neither suggestion is correct. The Government's position has always been as it was at the point of the Bill's passage: we shall see that the cost of handling information requests is borne substantially by public sector bodies, as is right and proper. How the conundrum is squared between that and the Treasury position is not difficult; a normal part of officials' responsibilities is to respond to requests from the public for information. The only caveat is, and has always been, the cap on the amount of time and effort that we will put into very obscure or complex requests, as was made clear when the Bill was passed.

asked Her Majesty's Government:

My Lords, oil is traded in international markets, and it is not for the Government to intervene directly. However, I repeat the sentiments of the statement made by the Finance Ministers in the Group of Seven on 23 May, in saying that we welcome recent announcements by some oil producers to increase production and call on oil producers to provide adequate supplies, to ensure that world oil prices return to levels consistent with lasting global economic prosperity and stability, particularly in the poorest developing countries.

My Lords, I thank the noble Lord for that reply. However, would he agree that, in addition to short-term measures intended to increase supply to take the pressure off current oil prices, there should be an intensification of longer-term measures to reduce the demand for oil, especially in the road transport sector?

Would he further agree that such measures should include: the rapid introduction of biofuels; the encouragement of the use of hybrid vehicles, which cut petrol consumption by half; and the wider application of fuel cells to buses, as at the moment only two vehicles use them? Is there not a case for a targeted strategy to reduce oil consumption, to run in parallel with the targeted strategy for increasing renewables?

My Lords, the Government are fully committed to increasing the diversity of energy supplies. The key commitment in last year's energy White Paper is to reduce carbon dioxide emissions by about 60 per cent by 2050. We are giving priority to encouraging renewables and energy efficiency. We directly support the use of more environmentally friendly fuels through reduced fuel duty rates, and the Government further encourage the use of cleaner vehicles through reduced vehicle excise duty rates based on vehicle emissions.

The Government want the United Kingdom to lead the shift to low-carbon automotive economies, and to be a good place in which to develop, research and manufacture them. Hybrid vehicles are supported by the Government's Powershift programme, in which grants have been offered of £700 towards the purchase of those vehicles. We encourage buses that use dual supply in the same way. The targeted strategy to increase the number of fuel-efficient vehicles in the UK exists through those plans, copies of which are available in the Library.

My Lords, does not the current speculation about the future price of oil—that is what it is—underline the wisdom in the Government's energy White Paper of making the maximum use of alternative and sustainable energy and, if possible, of trying to ensure that those targets are seen as a minimum, not a maximum? That is the way to guarantee the safety of our energy supplies.

My Lords, I wholly agree with my noble friend. There are limits to what the Government can do by way of interposing ourselves in any kind of market arrangement. However, we most certainly can look at the future in the most serious way through some of the alternatives now being developed, not least as a result of the high quality of United Kingdom science and technology, so that we can drive to a point where we are not held hostage by oil prices.

My Lords, in light of the deeply deflationary impact of hikes in the oil price, how much longer will it be before the Government review their allegedly neutral, and in practice hostile, attitude to nuclear power?

My Lords, I feel as though I am revisiting a very well loved relation. The arguments have been well rehearsed in this House and I do not intend to repeat them, other than to say that the nuclear option has not been foreclosed. However, serious attention is being given to renewable sources of fuel that we believe will be environmentally friendly and will help to sustain the United Kingdom's energy requirements.

My Lords, how can the noble Lord say that the Government are doing everything to encourage renewables? In south-west Scotland, which is arguably the best place for wind turbines, there is a blanket objection by the Ministry of Defence to hill farmers—I have a declared interest in the matter—who wish to help the Government in their renewable energy programme. Nothing has been done and no answer has been given on the issue, which I have raised on a number of occasions.

My Lords, the issues of aircraft and radar and other signals are being actively pursued. We made it very clear during the passage of the Energy Bill in this House that there remains a desire to site a large number of successful wind farms in appropriate areas off the coast of the United Kingdom, particularly of England, Wales and Scotland. That remains the policy.

My Lords—

My Lords—

This side!

My Lords, there is plenty of time. We can hear from our Benches and then from the Opposition Benches.

My Lords, although my noble friend has a sense of déjà vu in revisiting the subject, would he accept that there was a sense of déjà vu in the House about the inadequacy of the answer? It is not fully acceptable to say that the Government have not closed their mind to the nuclear option. That in itself is a negative reply. Will he give us a very clear assertion that all steps will be undertaken to maintain the existing supply and our future needs for electricity generated by nuclear power unless and until we have adequate alternatives in place? None of the options should be forgone or allowed to degrade unless and until those renewables that we all want are actually in place, not merely a wish, a dream or a hope.

My Lords, as ever, I am deeply grateful to my noble friend for providing so robust a question. I cannot add to the general point. We have not closed the door on any of the fuel sources that we believe will be required. It is not right to make a distinction of the kind that may have appealed to one or two noble Lords about the intention to drive down carbon fuels, find new forms of renewable energy, and make sure that we have not closed the doors to some technologies that have proved extremely valuable in the recent past providing an envelope within which we will meet the fuel and energy needs of the country.

My Lords, I revert to the Question. Is not the Government's response wholly related to the question of taxation, not to the supply of oil or indeed to carbon emissions, wind farms or whatever?

No, my Lords. It could not conceivably be argued that that was the case. There is no need for panic, but the anxieties expressed by governments as diverse as those of China, India and many other countries around the world—their requirements for fuel have grown because demand in their economies is growing—cannot all be attributable to the tax regime in the United Kingdom. We all want consistent supply, because we all want a buoyant economy and stability in the world economy.

My Lords, despite all the fuss, is it not true that the real price of oil is below what it was in 1973? Oil is cheaper in real terms than it was. There is no energy crisis to justify a nuclear revival.

My Lords, it is quite right that, in real terms, oil prices are still at half the levels reached in the early 1980s.

My Lords, the oil producer knows full well that, of the pump price of petrol in this country, 75 per cent is tax and only 25 per cent is there to account for the whole cost of production, transport, refining and retailing. Does the Minister agree that, from the oil producer's point of view, it looks a bit rich for the Government to complain about him increasing his share?

My Lords, I do not think that there have been complaints. Indeed, the dialogue that has been opened between OPEC and non-OPEC nations about greater transparency in all issues of pricing has been one of the central features of contemporary negotiations about oil prices. World economic stability is as much in the interest of oil producers as it is, if I may say so, in our interest.

My Lords, is it not true that the scientific research—

My Lords, we are out of time.

asked Her Majesty's Government:

Yes, my Lords, we are satisfied that all the arrangements are in place and that we are on course for successfully run elections on 10 June.

My Lords, I thank the Minister for his reply, but is he not aware that we are still receiving reports that ballot papers have not been received by electors? In fact, in the ward of Aspull in Wigan, people were informed on Friday that they will have to go to the town hall to vote. In the light of all the assurances that were given during the passage of the elections Bill and the fact that his right honourable friend the Deputy Prime Minister appeared to pioneer the process, would the Minister agree that if any evidence emerged showing that anyone was unable to vote in the election or that people had been disfranchised it might be a resigning matter?

My Lords, I shall not go into specifics about the detailed situation in the local authority to which the noble Lord, Lord Hanningfield, refers. I shall outline the overall position and try to give the House a little more detail about why we are confident that the process is on course. We had a debate about that following a Statement that I repeated to the House just before the Whitsun Recess, when we signalled that we were confident that returning officers would comply with their legal obligation to issue ballot papers by the deadline of 1 June. They achieved that: 99.24 per cent of ballot papers were issued by that date and the 0.76 per cent were late were late by five hours and the Post Office incorporated them into the delivery. Therefore, there was no disadvantage to the public.

I am further advised by the Royal Mail that ballot papers had, to the best of its knowledge, been delivered to everyone and that 99.9 per cent were delivered by Thursday last week. The noble Lord, Lord Hanningfield, is right that there are isolated examples, as is true in most elections, where there appears to be a glitch in local areas. But there is ample opportunity and time for electors in those areas or the returning officers, if they are aware of an issue, to ensure that replacement ballot papers are provided or that alternative or additional electoral arrangements are put in place.

My Lords, is my noble friend aware that, in Cambridge, my postal vote had not arrived by this morning? I have had a postal vote for a long time. I have been in touch with the Electoral Commission in Cambridge. It told me that it will send me a postal vote here. That may not arrive in time, but I have to take that vote to the polling station or to the Guild Hall myself. I do not think that that is satisfactory; does the Minister?

My Lords, I share my noble friend's concern about the inconvenience. We would not want to lose her from the House by her having personally to deliver the ballot paper to Cambridge during the next few days. I am sure that her words will have been marked in Cambridge and that the authorities will ensure that they fulfil the promise that they have given her, so that she is adequately enfranchised.

My Lords, the elections to the European Parliament are due to take place within three days. Will the Government make an immediate statement to the electorate in this country that there are now so many members of the European Community and their legal systems and other circumstances differ so much that the European Parliament will be unable to make laws of universal application within the Community?

No, my Lords, we will not issue such a statement for two reasons. First, the question is wide of the mark of the Question on the Order Paper. Secondly, the Government do not share the view that that is an accurate description of the position of the European member states.

My Lords, does the Minister accept that most of us think that his statement is remarkably complacent and that there have indeed been some disastrous reports of what has been going on in the four areas in the north where there is all-postal voting? Will the Minister today give an unreserved assurance that for all future elections, especially the regional referenda that are coming up, voters will again be given the opportunity to cast their vote in the ballot box in the traditional manner?

My Lords, to come to the last point first: we have always been clear that these are pilots. They are pilots for a good reason, as we discussed at length during the passage of the Bill. Therefore, it is right and proper that the experience of the pilots is evaluated, reported on and discussed before we move forward on all-postal balloting. The right of an individual elector to opt for a postal ballot is already enshrined in law and we have no intention of retreating from that position.

Before we get overexcited about prematurely celebrating a disaster, we should make a distinction. Several things are going on at once. We have combined elections, which in itself is slightly more complicated for electors than a single election—although it is not the first time that that has happened. Moreover, we have all-postal ballots, which is bound itself to be a novelty to some people. It would be surprising if it were not. But that does not mean that one has a failed or a flawed electoral system.

Irrespective of that, we will receive a report from the Electoral Commission in mid-September, as it is statutorily obliged to report on its evaluation of postal ballots. That will give us an opportunity to discuss the issues again.

My Lords, with permission, later this afternoon a Statement on Iraq will be repeated by my noble friend Lady Symons, which will be taken after the completion of consideration of the asylum Bill and before the debate on the Housing Bill.

My Lords, I beg to move the Motion standing in the name of my noble friend Lady Ashton of Upholland on the Order Paper.

My Lords, I beg to move that the House do now resolve itself into Committee (on Recommitment) on this Bill.

moved the amendment:

My Lords, on behalf of my noble friend Lady Scotland of Asthal, I beg to move that the Bill be now further considered on Report.

moved Amendment No. 42A:

My Lords, in our original amendment, tabled on the first day of Committee, our test for review was more demanding, although it was predicated upon changes at the Home Office interview stage and the single-tier tribunal stage, which have so far not been forthcoming. So we will not contest it.

However, the Government will have to recognise that their amendment will have implications for their legal aid proposals. You cannot have a test for review consisting of the Government's new definition on the one hand, and a legal aid regime that gives legal aid only ex post facto for wins or near-misses on the other. That legal aid regime is clearly no longer appropriate. The list for provision of legal aid should clearly match the new government review test; otherwise the legal aid system will block access to rights now to be granted by legislation.

My Lords, we feel that the amendment deals with the problem that we outlined in Committee. We are satisfied with its drafting. The noble Lord, Lord Kingsland, has rightly raised the question of legal aid; we shall speak on that when we get to the appropriate group of amendments.

moved Amendment No. 43:

My Lords, I support what the noble Lord, Lord Goodhart, has said. We are grateful that there has been some improvement in Clause 14. The Government ought to be congratulated as far as that is concerned. However, as the noble Lord, Lord Goodhart, said, the period of five working days is wholly inadequate. The purpose behind my support for these amendments is to improve rather than diminish the practicability and effectiveness of this clause. It is the view of the Law Society that the amendments that have been moved are likely to be more realistic in the circumstances. As the Law Society has contended, the crucial matter is that justice should be done and be seen to be done. Speed is significant, but it is not the whole argument. For that reason, I support the proposal of 10 working days.

The time limit is in many cases impracticable, and it will have the unfortunate consequence of persuading more applicants to apply to the court for an extension of the statutory time limit. The essential issue is that the case ought to be properly prepared and presented; that cannot be done in five working days. I speak from some experience as far as this provision is concerned, both direct and indirect. We are talking about people's right to present their case properly. There have been many incidences of this concern in practice.

The amendment is supported by the Law Society for the reasons that I have elaborated. As I understand it, the Law Society has explained its purpose to Ministers. What have Ministers said to the Law Society in response? The House is entitled to know. After all, the Law Society is concerned—as is the Bar Council—to make these provisions practicable and enforceable. I hope, notwithstanding the initial response, that my noble friend will have second thoughts about this important matter.

My Lords, I rise to speak only briefly, reminding the House, as I did when I spoke in the original debate on the ouster clause, that I am chairman of the Council on Tribunals, which I hope may be seen as a qualifying interest, rather than a disqualifying interest in this context.

Looking carefully in the direction of the Minister, I wish to express my support—and I think I can safely say the support of the Council on Tribunals—for some extension of this five-day rule. Like everyone else, we focused our principal attention on the original ouster clause, and share the gratitude of all that it has disappeared in its original form.

However, this was one of the various points of detail on which we had focused. I can only say that we believe—I certainly do—that five days is much too short a period to obtain proper advice about applying for a review and help in preparing it, and much too short a period for an appellant with no means of obtaining advice or assistance. In general, there is a risk that this would run contrary to what we would all agree, however difficult the problem, should be an open and proportionate system of review.

I do not think that I need to say more, but I hope that we shall receive a positive response from the Minister. Whether 10 days is the right figure is not a matter that I would want to die in a ditch on, but I am clear that five days is too little. I hope that the Government will be prepared to look at this again.

My Lords, I support the amendment standing in the name of the noble Lord, Lord Goodhart. I am grateful for some of the changes that the Government have made in Clause 14. They have gone some way to satisfying some of the objections that some of us have had. In my view, they have not yet gone far enough. I am particularly bothered about the five-day limit. I do not believe that it is workable. A much-respected immigration solicitor in the city of Newcastle, where I live and work, says that she spends some 20 hours preparing a case with a client. She believes that her job will no longer be viable if these regulations are to come in. In an asylum system that anyway is operating with a culture of disbelief, how on earth will vulnerable people be able fully and effectively to put forward their evidence within those five working days of the notification of the decision?

Grounds of appeal prepared in great haste do not give the best material on which to make difficult decisions. The five-day limit is not a proposal for a fair system, let alone an effective one. Therefore, I strongly support this amendment in the name of the noble Lord, Lord Goodhart.

My Lords, I am glad that the right reverend Prelate has raised the question of the time that is required to obtain the legal advice that is necessary, because this is a matter that has been raised with all your Lordships by the Refugee Children's Consortium. It says that this is a universal problem. It is not just the particular adviser who has informed the right reverend Prelate of this problem; all advisers are in the same boat. They already must spend a great deal of time accessing legal advice on behalf of their clients, and these regulations will make life almost impossible.

In the representation that the consortium has made to your Lordships, it says that its staff already spend hours on the telephone seeking a legal representative, or to make an appointment with a legal representative. The first lawyer that they approach many not be willing to take the case on, and there may be several iterations of the calls. The original lawyer who dealt with the case at an earlier stage may not be prepared to act in this instance.

It is almost universally agreed that the time limit of five days is impossible. It was referred to particularly in the JCHR sixth report of session 2003–04, which says that,

"the UNHCR has expressed the same concern about the five day limit and the likelihood that it may result in … contravention of the fundamental principle of non-refoulement in Article 33 of the 1951 Convention Relating to the Status of Refugees".

They say that it falls short of international standards of fairness, while seriously compromising the ability of asylum applicants to access their rights of appeal. Faced with this barrage of opinion from all quarters, I cannot imagine that the Home Office will stick with its original decision. It must bow to the weight of professional and legal opinion and make the concession that my noble friend has asked for.

My Lords, may I remind noble Lords of my interest in this subject? I am a lay member—currently an endangered species—of the Immigration Appeal Tribunal. I support the noble Lord, Lord Goodhart, and all the other noble Lords who have spoken in favour of this amendment. Already the number of lawyers who are registered as being allowed to represent asylum seekers is limited and, from my own knowledge, they are extremely hard-working and hard-worked individuals. If they are not given time to prepare a case properly it is going to defeat the objective of this Bill, which is to speed up decision-making, so I offer my support.

My Lords, I intervene as a member of the Joint Human Rights Committee, whose report the noble Lord, Lord Avebury, has just mentioned. The Committee deliberated long and hard about the new clause and all its various ramifications, and we looked at a great deal of evidence. I remind noble Lords, with their indulgence, of precisely what the Committee said on page 21 of its recent report; it is pretty categorical. It stated:

"We consider the five day time limit to be far too short for the right of access to the High Court and beyond to be practically effective. The number of tasks to be performed between receipt of a decision and lodging an application for a review makes it simply impracticable to require applications to be lodged within five days. An application for reconsideration will require the applicant's legal representative to receive a copy of the Tribunal's decision, to read and consider it, to marshal any necessary evidence (which may require a meeting with the applicant at which an interpreter might well be required), to draft the legal grounds of challenge, and to lodge the application at the High Court. We consider that, more often than not, completing all these steps within a five day time limit will be a physical impossibility for most asylum seekers".

We come to the conclusion that this provision may in effect impede the idea of a right of access to the higher courts.

My Lords, it is obviously desirable that any time limit should be fair, but it is even more important that it is practical. If it fails in that, there is a real risk it will defeat itself, and there will come before the necessary authorities something that may be looked upon as half-baked. To bake it properly will waste time, which will be due entirely to the defect that has been pointed out. The offer to increase the five days by another five is an extremely reasonable and sensible approach, which involves the Government in no cost of any significance.

My Lords, so many of your Lordships have spoken to the same effect on this amendment that I have little to add. We have added our name to the amendment moved by the noble Lord, Lord Goodhart, and so your Lordships would naturally expect me to support it, which I happily do.

We on these Benches have always been opposed to the five-day period for the reasons that the noble Lord, Lord Goodhart, and others of your Lordships have so eloquently expressed. In an amendment tabled in Committee, we suggested a seven-day limit. However, that suggestion was based on a number of assumptions about the rest of the Bill that no longer apply, of which I shall mention just two. The current appeals rules—that is, the rules of 2003—allow for the interests of justice to be taken into account when considering an extension of time. That provision is in paragraph (2) of Rule 16. We should contrast that with the test for extension of time found in Clause 14(6), which sets out the terms of subsection (4)(b) of new Clause 103A. The test is expressed thus:

"the appropriate court may permit an application under subsection (1) to be made outside the period specified in subsection (3)"—

in this case, it is five days—

"where it thinks that the application could not reasonably practicably have been made within that period".

I am sure that your Lordships will agree that that is a much more severe test for the applicant than the test under the existing rules.

Our second reason for supporting the noble Lord, Lord Goodhart, is that our suggestion—seven days—also assumed that oral hearings would be permitted in the review, where they were considered by the High Court judge to be in the interests of justice. In the absence of the ability to make such oral submissions, the quality of written submissions and their degree of comprehensiveness must be very high. We do not see how that can be achieved within the short period of five days.

For those reasons and for others that have been amply expressed by your Lordships, we support the amendment moved by the noble Lord, Lord Goodhart.

My Lords, in responding to the many noble Lords who have spoken to the amendments, I thank those who paid tribute to the fact that the Government have listened to representations made in this House and elsewhere. That is appreciated. As a consequence, we have crafted a system that still enables us to achieve the essential thrust of the policy, while listening to the concerns that have been raised.

Amendments Nos. 43, 44 and 59 would extend the time limit for making a review application and for opting in under the transitional provisions from five working days to 10 working days. As the House knows, we wish to make the review process as swift but as fair as possible. We are confident that, in practice, five working days allows an appellant sufficient time to consult a legal representative and lodge the application papers for a review. It should also allow sufficient time for an applicant to opt for the review application to be looked at by the High Court under the transitional provisions in Schedule 2.

I shall explain why we have come to that view. It is important to remember that we are not talking about the appeal against the initial decision by the Secretary of State or entry clearance officer. The review is a process that we will put in place to allow a tribunal decision to be reconsidered, if there may have been an error of law by the tribunal that affected the tribunal appeal determination. In those circumstances, the shorter time limit of five working days best achieves the balance between speed and fairness.

The reason why we believe that the timetable is practical is that the grounds for appeal will already have been covered at the appeal before the tribunal. There will have been a clear statement of reasons for the appeal that will focus the appeal on the key points at the hearing. The process is not a rehearing of the case requiring new grounds but a process to allow errors of law by the tribunal to be corrected, if it affected the original appeal decision. That should not be over-onerous on the legal representative, as, first, the legal representative should already be familiar with the case through the earlier work on the appeal and, possibly, the initial claim to IND. Secondly, the kind of issues that we are talking about with regard to an "error of law" should be familiar to the lawyers from their experience of judicial review and statutory review. If there is a genuine exceptional reason why the application could not be made in five days, it is down to the judge to decide whether to allow a late application.

The noble Lord, Lord Kingsland, explained as elegantly as one would expect why he has moved from supporting a seven-day timetable to supporting one of 10 working days. When my noble and learned friend the Lord Chancellor announced at Second Reading that we would introduce measures to provide for oversight by the higher courts, he stressed that we would balance them with the aims of speed and reduction of abuse. We must bear those objectives in mind at the same time. It is important to ensure that there is a fast, end-to-end process. It is not in the interests of genuine appellants to drag out the appeal process. Shorter time limits would help to dissuade people from abusing the process or wrongly believing that they can.

My Lords, I am grateful for the Minister giving way so courteously. I understand his point about expedition, which was made by the noble and learned Lord the Lord Chancellor at an earlier stage. But does it not fit ill with the refusal of the Government to include in the Bill either a limitation period for the period between the asylum application and the application decision by the Home Office or the additional refusal of the Minister or the Home Office to accept any time limitation between the end of the statutory review process and the moment of deportation? What relevance has five days within the appeal process if the Government have dug their heels in on those other periods, which often amount to years?

My Lords, I shall now relay the remarkable reduction in the overall speed of decision making that has taken place on asylum and immigration matters since 1997. I am sure that the noble Lord, Lord Kingsland, is well aware of the significant overall reduction. We are debating the specific time limit of the appeal in order to see whether we have allowed a process that gives an appellant an adequate time in which to put forward his or her case. With the leave of the noble Lord, I shall continue my explanation about why we believe that we have got it pitched right.

As I have said, we accept that there will be exceptional circumstances when, for reasons outside the control of the applicant and his or her representative, it will not be possible to lodge an application within the five-day time limit. The Bill recognises that and makes provision for applications to be accepted out of time in those circumstances. The discretion in doing so will rest not with the Government but with the High Court judge who is considering the issue.

Amendments Nos. 51 and 52 would make the order-making power to vary the time limits subject to the affirmative resolution procedure. The Delegated Powers and Regulatory Reform Committee scrutinised the order-making and regulation-making powers in Clause 14 and published its recommendations in its 15th report of this Session. The committee recommended that regulation-making powers under Section 103D of the 2002 Act, which concern new legal aid arrangements, should be subject to the affirmative resolution procedure. I have brought forward an amendment to give effect to that recommendation.

However, the committee did not recommend that the order-making power to vary time limits should be subject to the affirmative resolution procedure. If the order-making power is used, both Houses would have the opportunity to give detailed consideration to the order. If they felt it necessary, they could of course pray against it.

Perhaps I may turn to some of the specific points—

My Lords, I am much obliged to my noble friend the Minister for giving way. I am sure that he has had an adequate opportunity to advance all those arguments to the Law Society, the Bar Council and others, but would he care to mention who supports the Government where this is concerned? After all, the House is entitled to know that. When my noble friend advanced those arguments to the powers that be, what was their response?

My Lords, I was not privileged to be privy to all of those discussions with the relevant professional bodies. In response to the question about who supports the attempt of the Government to ensure that we uphold our traditions in this society of giving fair and proper consideration to people who apply to us for refuge and asylum, the public are clear that they want government and society generally to ensure that the abuse in the system is stamped out. There is strong support for that position, not just—how shall I put it?—among the more extreme elements of the popular press, but also among those who hold dear the tradition of this society, and its responsibilities, to consider applicants for asylum. That is my answer to my noble friend.

My Lords, I am much obliged. It is astonishing to say that to extend the time limit from five to 10 working days is extreme. I do not believe that. What I said at the beginning is wholly true. I want to make these considerations workable and practical. Nothing that my noble friend has said draws me to an opposite conclusion.

My Lords, I have no doubt that that is the thrust of my noble friend's intention on this measure, as it has been on many asylum and immigration matters. I am saddened that I have not managed to persuade him at this point.

Perhaps I may turn to a number of points that were raised in discussion. The noble Lord, Lord Goodhart, raised the important issue of deemed service. The five days starts two days after the issue of the notice of decision from the AIT. Therefore, for very good reasons, it is effective not from the date of being sent out but from two days after that date. The last day of deemed service would not overlap with the first day of the five-day application period. We will ensure that that is done and set out in the rules.

The noble Lord, Lord Avebury, also referred to the UNHCR disapproving of the five-day limit. The UNHCR comment relating to a five-day limit refers to filing an asylum claim. We are not referring to that in these measures, but to a subsequent time limit for seeking a review and reconsideration.

We do not wish to ignore the representations of the House, but we have given the issue very careful consideration. In the vast majority of cases, an asylum applicant will have had a lawyer at the original asylum and immigration tribunal hearing. In many cases, during the hearing, the points of law on which it seems likely that the tribunal's determination will turn and hinge will be identified, so the lawyer and the applicant will not come cold to the thrust of the likely decision by the tribunal. Therefore, in most cases, a lawyer and his client would have been in a position to have discussed whether, if the hearing did go against them, they would wish to lodge an appeal. Often, the lawyer would be well prepared about what should be the thrust of the case that he or she would put before the High Court when seeking an ex parte application.

Therefore, for those reasons, we think that five days is workable. However, that should be cautioned, of course, by the fact that there is a discretion for the High Court judge to waive that when he or she thinks that the interests of justice require it.

My Lords, I am most grateful to the noble Lord. My quotation from the UNHCR was not direct, but it came from paragraph 1.81 of the 6th report of the JCHR. That was in the context of the shortness of the time limit for applying to the High Court for a reconsideration. It was not in terms of the first application at all. If the noble Lord refers to the JCHR report, he will find that my quotation was relevant to this discussion.

My Lords, I thank the noble Lord, Lord Avebury, for his correction.

My Lords, the Government have said that their objective is to have a procedure that is swift but fair. We agree with that objective. Unfortunately, the Government's proposals, while plainly swift in this respect, are blatantly unfair. The Government say that they are confident that an appellant will have sufficient time because—so they say—the grounds for appeal will already have been covered in the argument at the first hearing before the asylum and immigration tribunal.

The idea that the judgment of the tribunal is so predicable that, in effect, it is possible to draft a notice of appeal in advance is utterly unrealistic, as, I believe, anyone who has practised in the courts will agree. Many speakers in this debate have said that a five-day period is utterly impracticable. The five days' limit will be only a very minor factor in extending the time before the removal ultimately of an unsuccessful asylum seeker. The five days' limit will be a major factor in creating unfairness in the system.

I am most grateful for all the support that this amendment has received from all parts of your Lordships' House. The amendment echoes the views of the highly respected Joint Committee on Human Rights. In those circumstances, it is proper for me to seek the opinion of the House.

moved Amendment No. 44:

Page 14, line 2, leave out "5" and insert "10 working"

moved Amendment No. 45:

Page 14, line 13, leave out "applicant" and insert "parties to the appeal"

My Lords, I thought that Amendment No. 45 had been called, but the statement by the noble Lord in support of it appears to be more appropriate to Amendment No. 46.

My Lords, I apologise. The noble and learned Lord is quite right. The amendments are grouped together, but Amendment No. 46 is the substantial amendment. Amendment No. 45 suggests a minor point to make it clear that this provision should apply to both parties of the tribunal, not only to an appellant.

My Lords, will the noble Lord assist me on one point? Since the emphasis of the whole of this part of the Bill is on expedition, and since we are dealing with a point of law and a tribunal which is a qualified judge, why should not the judge himself make the decision that there was an error of law and the consequences are as would be appropriate? Why would it need to go back in every case?

My Lords, I am pleased to be able to help the noble and learned Lord, Lord Ackner. I am sorry if what I said was confusing, but the purpose of this amendment is exactly that: it is to make sure that the judge who hears the application for an order for reconsideration should be able himself or herself to say, on the spot, "We need not bother the president of the asylum and immigration tribunal. I myself am convinced that this is a case which should not go back to the member of the tribunal who took the original decision. The issue is so important that it requires a panel of three". So I am grateful to the noble and learned Lord, with whom I think I am in entire agreement.

My Lords, pages 1 and 2 of the Marshalled List state:

"An order … may direct that the decision of the Tribunal may be reconsidered by—

(a) a member who made the decision;

(b) another member; or

(c) a panel of 3 members".

Why should it be necessary to insert a provision for three members if one member is enough? I should be grateful if the noble Lord could help me on this point.

My Lords, I am grateful to the noble Lord. There is an existing power for the president to declare that a case is sufficiently important to require it to be heard by more than one member of the panel. Therefore, if the judge is to be given a choice, he or she should be given the same choice as the president would have, which would include the power to direct that the case should be heard by a panel of three members.

Three members seems the right number here. Two members would be unsatisfactory, as even numbers tend to be when taking judicial decisions, and rising to five members would be to over-egg the pudding.

My Lords, Members on these Benches support the amendments tabled by the noble Lord, Lord Goodhart, save for one qualification. The noble Lord will see that Amendment No. 57A would require three members to be the normal number to sit on the tribunal,

"unless the President from time to time directs".

Were that amendment ultimately to find itself included on the face of the Bill, I suggest that a slight modification would need to be made in Amendment No. 46 to new subsection (5A)(a) and (c). Subsection (5A) would have to read, "member or members who made the decision", while (c) ought to read, "or another panel of 3 members". However, the changes would be necessary only if the contents of Amendment No. 57A were to find their way into the Bill. I apologise to the noble Lord for not drawing his attention to this point earlier.

I had proposed to say a few words about Amendment No. 45, because I am not sure of the Government's attitude towards this amendment. I assume that, for the sake of brevity, they would want to have the case decided without the necessity of inviting the respondent to make representations. I think that Amendment No. 45 implies a right, or at least a power, to require representations from the other parties to the appeal.

The point made by the noble and learned Lord, Lord Ackner, seemed to be that, if it is apparent that there has been an error of law, the simplest way to correct it is perhaps to make a new decision immediately which has the opposite effect. The problem about that is, unless and until the basic opening of the clause is changed, the only power in the court is to remit the case to the tribunal. If the point made by my noble and learned friend were to be given effect, some further amendment would therefore be required. I do not think that Amendment No. 46, moved by the noble Lord, Lord Goodhart, would have that effect.

So far as Amendment No. 46 is concerned, for my part I would be willing to take it that the judge hearing the case in the High Court would have these powers in any event. If there is any doubt about that, however, I see no reason why these amendments should not be made.

My Lords, if on review the judge decides that there has been an error of law, I do not think that it follows that the lower tribunal, with one or three members, would necessarily reach a particular conclusion. For instance, if the decision is that an irrelevant matter has been taken into account, it still leaves open the question of what happens when the relevant matter is taken into account. On the face of it, that would not be a matter for the High Court judge.

While judges are perfectly capable, when looking at a decision which overturns their own decision, of saying, "That is what that court says"—they probably got it wrong, but that is beside the point—"They have the last word, so of course I will follow it". We know, or at any rate those who are involved in the law know, that that is so, but the lay public do not. If there is a situation in which a decision is sent back to the original member, who then says, "Having taken account of the guidance I have received from the High Court, I still think that the answer is what I said it was", it is probably a perfectly possible answer but it is not one which would carry conviction with the public.

It would therefore be important that the judge of the High Court should consider very carefully before sending it back to the same member as had it in the first place—unless he is quite satisfied that the answer will be a different one.

My Lords, there are occasions when it is appropriate to send it back to the person who made the decision in the first place. Sometimes that person will not have taken all matters into consideration and will need to be reminded that this should have been done and, if he had taken all matters into consideration, what then would have been his decision.

On the other hand, in most of the cases that have been through my hands, when it has been sent back to a lower level for a rehearing, it has been to a fresh hearing as opposed to a filling-in of what has already been heard. There is therefore room for both cases.

My Lords, in responding to an interesting debate, it may be helpful if I start by emphasising what the Government are seeking to do under Clause 14 in this respect.

Essentially, and for reasons which will be well known to the House, we think that there is a need for and merit in a single process in the new Asylum and Immigration Tribunal to deal with issues, rather than a second two-stage process. However, the House and others have made representations to us that the ouster of judicial review went too far and did not allow an adequate supervision by the higher courts of points of law or failures by the tribunal.

Therefore, in the amended Clause 14 we are seeking to ensure that the single-tier tribunal, the AIT, has the capacity, skills and competence to deal with these issues, but allow an opportunity, when there appears to have been a case where there is an error in law, for that to be considered by a higher court, normally the High Court and, if the judge hearing that case believes that an error in law has been made, to send that back for reconsideration.

We are not trying to reconstruct a two-tier process built on the AIT—for very good reasons, because that would in large part take us back to where we are at present.

That is why we are not sympathetic to Amendment No. 45. The noble Lord, Lord Goodhart, suggests a requirement for the High Court or Court of Session to determine review applications by reference to the written submissions of all parties to the appeal, and not only the written submissions of the applicant. That effectively puts the High Court—if the High Court is hearing it—in the position of deciding on the substance of it. That is not what we want to do, and for good reason.

It is important to recognise that new Section 103A has been drafted to reflect the fact that the review procedure will be ex parte: in other words, if a person who has agreed with the decision of the AIT has an opportunity to direct to a higher court a challenge that there has been an error of law by the AIT, and if the judge in that case is persuaded by that to direct a reconsideration.

The current permission stage to the AIT and the statutory review procedure under Section 101 of the 2002 Act, for similar reasons, are both ex parte and we think that it is necessary and right to continue with this.

Requiring the High Court to determine review applications by reference to the written submissions of all parties to the appeal would effectively put it in the position of determining the appeal, would add delay to the process, and is unnecessary.

It is also undesirable for other reasons. One of the problems experienced has been that the High Court has been swamped by appeal applications of this type. That has put an inappropriate burden on the High Court. Therefore, the procedure as crafted by new Section 103A allows for the proper exercise of High Court supervision on points of law, but does not take away from the specialist tribunal the reconsideration of those matters. In other words, it has been carefully crafted—we believe for good reason.

If the High Court or a senior member of the tribunal considers that there may have been an error of law and orders a case to be reconsidered by the tribunal, at that point all parties to the appeal will have the opportunity to make written and, if appropriate, oral representations. We therefore believe that the provision is well constructed. The substantial hearing, if there has been a finding on a point of law, is back into the tribunal following the determination by the High Court judge.

Amendments Nos. 46 and 57 will enable the High Court or the Court of Session to direct how the tribunal should be composed when it reconsiders an appeal. As it stands, the president of the AIT will direct the composition of the tribunal under paragraphs 7 and 8 of Schedule 1 of the Bill. We believe that is where that discretion should lie.

We agree that the reconsideration process will need to vary. Some appeals will be best reconsidered by a full hearing but, for others, this may not be necessary. Some appeals will require a panel of judges to hear them, because it is seen by the president as potentially a pivotal case that will set a precedent relevant to other cases. In such circumstances one would expect that there would be three judges in the AIT hearing such a case. In other cases it will not be so, and therefore we believe that the president should take into account any recommendations made by the High Court or Court of Session but should have the discretion within that to make a determination on how best the appeal should be reconsidered in the AIT, depending on the particular circumstances. Ultimately, the president is best placed to take these decisions on the deployment of judiciary within the tribunal.

This has been a helpful debate. I do not think that I have replied to the point made by the noble and learned Lord, Lord Ackner, as to why the High Court should not be given the power to reverse. I may have done so in passing, because I have signalled that it is a different function for the High Court. It is not to hear the substance but to hear whether it considers that an error in law has been made. As the noble and learned Lord, Lord Donaldson, helpfully signalled, that does not imply that in every single case—even where an error of law may have occurred—the reconsideration decision will automatically be reversed. It will depend on the circumstances of the case.

I hope that my comments have been helpful to noble Lords who have spoken to the amendment.

My Lords, I am not wholly unsympathetic to the Government's view. I do not think that it would be appropriate for the judge to turn what is, in effect, an application for leave to appeal into a substantive hearing. I understand that and the amendment was not intended to achieve it.

Although the Government have taken some care to avoid saying so, they are trying to create an internal appeal system within the tribunal itself in which, if the case arises in England, the judge of the High Court effectively gives leave to appeal from one part of the tribunal to another panel or individual within the tribunal. It is a fairly ingenious way of handling the issue. From the Government's point of view it has the advantage that, albeit the leave to appeal—if one can call it that—is given as part of the jurisdiction of the High Court, it is not in itself subject to judicial review.

Amendment No. 46 would save time because a judge could say, "Having looked at this matter on an ex parte basis, it seems to me that there is plainly something that needs to be looked at seriously". That would avoid the delay involved in having to refer the papers to the president of the tribunal and he or she having to read up the papers and come to a decision as to what is the appropriate form of the tribunal.

However, I am also aware that, unlike the previous group of amendments, a refusal to accept these amendments will not lead to any injustice in the procedure. In those circumstances, I do not wish to press them further. I beg leave to withdraw the amendment.

moved Amendment No. 46A:

Page 15, line 42, leave out from beginning to "applies" in line 43 and insert—

moved Amendment No. 47:

Page 15, line 42, leave out from beginning to end of line 36 on page 16.

My Lords, like the noble Lord, Lord Goodhart, I am deeply concerned about this issue. I am concerned about the principle to introduce, in due course, the no win, no fee arrangements. The noble Lord elaborated on that.

The Government have it in mind to replace the Legal Services Commission with the judiciary in determining whether costs should be ordered. The judge would so order only if he decided that a case was either successful or a near-miss. Solicitors are therefore bound to be unduly cautious in approaching such matters.

The system that is envisaged is likely to have deleterious effects. First, solicitors are likely to give up legal aid work in that field because they feel that they are unable to work at all, or properly, under the circumstances that are envisaged. Secondly, there is a by no means remote possibility of a conflict of interest between the lawyer, whose attitude is likely to be that he will act only if the application is almost certain to succeed, and the lay client, who will want the application to proceed if he has an arguable case. Why, therefore, should there not be representation in all arguable cases?

Unmeritorious cases should not be publicly funded. I entirely agree with that proposition. That, in summary, is the view of the Government. However, do the Government not recognise that effective filters already exist? First, there is the Legal Services Commission, which imposes cost assessment audits, Quality Mark audits and peer review, where firms undertake immigration work, which is publicly funded. Secondly, the Legal Services Commission, rather than the solicitor, determines at present whether the case has enough merit and whether an appeal to the Asylum and Immigration Tribunal should be publicly funded. Thirdly, from 2005, the accreditation system will apply to all lawyers who practise publicly funded work in such cases.

Complex issues of law and fact are the rule rather than the exception. To decide them, it is often desirable that the applicant should give evidence. Why should we find that unacceptable?

Many sound claims are too often refused at the initial stage, where Home Office decision-making is often found to be wanting. Representation at that stage is therefore often indispensable.

There is likely to be an increase in unrepresented applicants, however unmeritorious they may be, and the courts will be hopelessly overloaded. In such circumstances, the Government will incur, rather than save, costs. I therefore hope that my noble friend will think again about his propositions.

My Lords, I indicated earlier that when the Council on Tribunals looked at some of the proposals, though it concentrated on Ulster in particular, it was concerned by a number of points of detail. This is another of them.

I shall not attempt to speak with the eloquence of the noble Lord, Lord Clinton-Davis, with his much wider knowledge of the operations of the legal profession, but it seems to be a matter of layman's common sense that if public funding is to be dependent on the ultimate outcome, which is what appears to be envisaged, there must be a risk that lawyers will feel strongly discouraged from taking on cases that may be meritorious in the normal use of that term, but not 100 per cent certain of being meritorious. In the area of asylum and immigration, it is singularly open to question whether that is a proper path to follow.

Being a natural seeker after the middle way, of the two amendments moved by the noble Lord, Lord Goodhart, I think that I prefer his compromise amendments to his complete "throw out this bit of the Bill" amendment, but I hope that the Government will look again at the issue.

From our experience at the Council on Tribunals—as was touched on by the noble Lord, Lord Clinton-Davis—there is considerable evidence that suggests that the absence of legal representation can extend the time and complexity of the hearing and make it much more difficult to handle matters in a manageable way. Any former Member of Parliament will know from discussions in his surgery that many complainants, claimants or applicants often find it difficult to distinguish the points that really matter from those that are not necessarily essential to the issue. Legal representation really can improve the smoothness and efficiency of the working of arrangements of that kind. With the best will in the world, I hope that the Minister will be prepared to take another look at the matter.

My Lords, I too wish to ask the Government to give further consideration to these matters. They are of concern to all those noble Lords who have spoken today. While I am pleased that the Government have amended their proposals to allow for costs to be paid out of the Community Legal Service fund, I would like some reassurances about how that is going to work out in practice, especially in cases involving children and families.

A no win, no fee approach puts children and families at risk from the unscrupulous or the faint-hearted, who may tell them that they do not have a strong enough case to take on, and that if they want to appeal, they must pay privately. It is worrying to find a child or a family being told to produce a significant sum. The Children's Society has experience of upfront payments of £200 being demanded from a child, to be produced in a short space of time, before a case would be taken on.

My Lords, I am sorry to interrupt, but would the noble Lords on the Benches opposite mind confining their sub-committee to outside the Chamber? I am finding it difficult to hear what the right reverend Prelate is saying.

My Lords, equally it is becoming difficult to find good legal representatives for children and families. We need to remember that the best protection against incompetence or unscrupulousness is a sufficiency of good representatives. I am not at all sure that these proposals will enable that.

My other concern is about a no-win/no-fee arrangement in this case. I am not aware of such a scheme operating in any other areas that are about fundamental human rights. That seems to be the basic point, which is why I fully support the amendment in the name of the noble Lord, Lord Goodhart.

My Lords, the right reverend Prelate is right. I do not think that any of us can produce an example where human rights are at stake and where a no-win/no-fee proposal has been made, let alone introduced. I wish to refer to the representations that we and perhaps other noble Lords have received from the Medical Foundation for the Care of Victims of Torture. It says:

"Where torture has been alleged it cannot possibly be in the interests of justice to allow the decision to challenge a flawed Asylum and Immigration Tribunal (AIT) decision to rest on lawyers' financial interests in the success of the case. This will prejudice those of our patients whose representatives are less able to bear the financial risk of proceeding even where a legal error of law is clear. This is particularly relevant given the Medical Foundation's current experience that quality firms are closing their immigration departments due to the recently imposed financial constraints".

The Medical Foundation has drawn our attention to two cases. I will give the Minister the references in case he wants to look them up. The first is Neutral Citation No: CO-2174–00, which was heard on 21 November 2000 before Sir Richard Tucker. The adjudicator had rejected the applicant's claim for asylum mainly on credibility grounds. Mr Justice Tucker, however, allowed the judicial review application saying that he did not agree with the counsel who appeared on behalf of the Secretary of State that the adjudicator's findings of fact were sustainable. In his view they were not and the case had to be reviewed and should be taken before the immigration tribunal. The claimant was later recognised as a refugee.

The second example is where a chairman of the tribunal determined an application for permission to appeal. The appeal number is HX/42009/2003, which took place on 8 December 2003. The chairman said:

"An adjudicator is entitled to use his own experience in assessing evidence, including how scars might be formed but not to set himself up as an expert".

In that case a decision is still awaited, but it is not clear how an adjudicator would come to have the experience necessary to make a forensic judgment, nor the extent of that particular adjudicator's medical knowledge, although he was permitted to attack the Medical Foundation expert who had written the report before him for failing adequately to explain her conclusion.

The Medical Foundation says that it cannot predict whether those two cases would have been successful under the Bill's terms or how the courts would have made a decision on referring them back. It shows that no-win/no-fee is a gamble and that, although there are serious doubts about the way in which such cases were decided, no one has any idea whether the applicants would have had the right to pursue their claims if this system had been in operation.

With the Medical Foundation's experience and that of other agencies referred to, we are looking at a situation where the rights of asylum applicants who may have had the experience of torture will be seriously undermined. I am sure that your Lordships would not want that to happen.

My Lords, as a Member of the House with no legal qualifications who has not been involved with the process, this seems to me a matter of simple common sense. I shall listen with great interest to what the Minister has to say if he does not accept the amendment's principle. The Law Society's case, which it put before many of your Lordships, was well made by the noble Lord, Lord Clinton-Davis. It seems common sense to me.

My noble friend Lord Newton from his experience of the Council on Tribunals made it clear that often an appeal is more complicated and takes longer if there is no lawyer involved. To have a situation where a lawyer may not dare to take on the case or may not want to because it seems too much of a gamble is a great mistake.

My Lords, we have considerable sympathy with the general approach of the noble Lord, Lord Goodhart, in the amendments that he proposes, without necessarily agreeing with the specific approach that he takes in each case.

I have already indicated that there is a plain dissonance between the test for review that the Government have now adopted in the first amendment of the day and the criteria for furnishing legal aid in circumstances where someone meets it. That is a profound and inexplicable irrationality that goes to the heart of the Government's legal aid proposals.

Moreover, I share entirely the view of the noble Lord, Lord Goodhart, and many other noble Lords, that a conditional fee approach is wholly inappropriate to asylum cases.

I should say at the outset that I am opposed to conditional fees altogether. I said so consistently during the debates in your Lordships' House on the Access to Justice Act 1999. However, the objections to conditional fees are even more firmly based with regard to public law; and, in particular, the human rights aspects of public law; and, especially, in asylum cases involving human rights issues.

There are a number of reasons for that, some of which have already been canvassed by noble Lords. The first is that the outcome in asylum cases is particularly difficult to predict because of the central role that the issue of credibility plays. Yet a high degree of accuracy of prediction is vital for the operation of a successful conditional fee system.

Secondly, in a conditional fee system, the client insures himself against losing a case so as to reimburse the solicitor for his expenses in the event of losing. An asylum seeker will be in no position to do that, but who will pay the insurance companies if they are not paid by the asylum seeker?

Perhaps the most fundamental objection of all is this: conditional fees are not appropriate to human rights cases, which require, as the judges have repeatedly reminded us in the High Court and above, the most anxious scrutiny. That, indeed, is the view taken to human rights issues with respect to every other public law matter in the country. In this respect, I find the Government's disposition particularly bewildering. They introduced the Human Rights Act to make Strasbourg remedies available in English law, in English courts; yet they are not now prepared to live up to these new responsibilities, which they imposed on themselves, by seeing them properly reflected in the legal aid system.

My Lords, in responding to amendments moved by the noble Lord, Lord Goodhart, I shall speak—and not before time—to government Amendments Nos. 46A, 47A, 48B, 49A, 50A and 58A. In doing so, I shall also respond to Amendments Nos. 47, 48, 48A, 49 and 50.

Amendments Nos. 47, 48, 48A, 49 and 50 are concerned with the provisions for new legal aid arrangements for the review and reconsideration process. Essentially, we are considering how to craft a new system that allows cases in which there are good grounds for there being a fault of law by the AIT to be properly considered by the High Court. We are not trying to reopen the situation, which I hope the House recognises took place, in which a substantial number of judicial review cases were brought on asylum matters to the courts without substantial merits, with the predominant aim of gaining time so that the asylum applicant whose case had not been found to have merit could defer his removal from this country.

We should not fool ourselves: this is not the dilemma with which we in a liberal society are trying to grapple. We want applicants in whose cases an error of law has been made to have an opportunity for redress in the higher courts; we have listened to the House in that respect. However, we do not want to reopen a situation in which there is an incentive for the applicant to continue the case, since it is in his interest to string out the process for as long as he possibly can, as that will delay or perhaps even avoid the date when he can be removed. We want as well to avoid the situation in which the lawyer himself is incentivised to take cases without merit because he will suffer no pain as a consequence of doing so.

While there have been cases that should have gone to judicial review—and it would be foolish of us not to recognise that—there have been very many cases without merit taken to judicial review, with considerable cost to the taxpayer and delay to the system. That has created the impression known to traffickers and others that when they get here the legal system in Britain—which is so good—means that they can string out their process and not be removed from the country. Therefore we are facing the question how we as a society, a Government and a House, can balance those two issues.

Let me explain why we believe that we have got it right.

My Lords, does the Minister agree that, considering the mechanisms that have been discussed by the noble Lord, Lord Clinton-Davis, and particularly the fact that the LSC will now have the responsibility of determining whether a case has sufficient merit, the kinds of abuse that have occurred in the past will still continue if legal aid is provided?

My Lords, the noble Lord, Lord Avebury, may have thought that I was concluding; I was not concluding but only beginning my response. I hope that we shall have an opportunity to address that point.

What we have done is to introduce an enabling power in new Section 103D to make regulations for a new legal aid scheme for the High Court review process and reconsideration by the tribunal. This will ensure that we focus legal aid on the most meritorious cases. Instead of the Legal Services Commission taking the funding decision, the power will be given to the judiciary to decide if legal aid should be paid in these proceedings. We are effectively asking lawyers to share the risk with the taxpayer when deciding whether an appellant should proceed with a review application. We believe that that will lead to lawyers giving a more rigorous examination to the prospects of a case succeeding. We recognise that good lawyers do that already, but that has not been universally the situation in our experience of asylum matters over recent years. This is not an attempt to remove those cases from the scope of legal aid, but a genuine drive to ensure that the focus of public funding is on deserving cases.

Amendments Nos. 47, 48, 48A, 49 and 50 would reverse that aim, and would mean that it would be easier to get legal aid for reconsideration proceedings than the original appeal, where the appellant would at least have to satisfy the merits test for legal aid applied by the Legal Services Commission.

As the Lord Chancellor said in Committee, the regulations constructed under the power will set out the detail of the scheme. Broadly speaking, we envisage that the tribunal will order legal aid to be paid in the following cases: in a case which has been successful and the original appeal decision has been reversed, or in a case which the judge has decided was a near miss, which was meritorious and could have succeeded but did not. In such a case it can decide that it is right that there is a payment.

I am grateful to the noble Lord, Lord Clinton-Davis, for acknowledging that unmeritorious cases should not be publicly funded. A number of noble Lords who have spoken have been concerned about whether the provision might lead to lawyers ceasing to be prepared to take cases to the High Court in these circumstances. That is a perfectly proper and right question. The thrust is that if lawyers get paid only when they succeed—and it is not perfectly possible to predict when they will succeed, for obvious reasons—they will be under a strong disincentive to take cases.

For those reasons—and with no hint of feeling that that is anything other than proper—we believe that a success fee should be paid and that it should be substantial. I shall not go into the exact arithmetic, because we have not come to a conclusion on that. What we want is a situation in which good immigration and asylum lawyers would know, in taking cases over a period of time, that if they exercise proper professional judgment in the interest of justice and their client—

My Lords, I cannot see why the Legal Services Commission should not apply the usual standards which are applied in considering particular circumstances. After all, at the present time the Legal Services Commission determines whether the applicant, plaintiff or defendant has a good legal case, and it can refuse or acknowledge that the matter ought to proceed. What is the essential difference between that situation and the one that applies in cases at the present time?

My Lords, I give an undertaking to the House that when I have finished what I have to say and if I have not addressed certain points, I shall be grateful to receive interventions. However, I hope that the House will have patience with me until we get to that point of failure rather than assuming that I am failing on it already.

I was seeking to explain why a success fee achieved the right balance in view of the fact that a lawyer would take on a level of risk on an individual case. The noble Lord, Lord Kingsland, is right that it is not like a conditional fee agreement, which involves an insurable risk, and that it is unlikely that the appellant himself would be in a position to reimburse the lawyer in the vast majority of such situations. It stands to reason that that is the situation.

We shall discuss the level of the success fee with the professions. Essentially we want to discuss what is likely to be the level of uplift on a fee that would ensure an adequate supply of good lawyers prepared to bring cases to review in this way. That is a consultation process that we cannot currently have, but it will be fundamental to crafting this accurately to get the balance right so that good lawyers will make judgments that they will take cases. They may lose on some but they will know that if they exercise good professional judgment they will get adequately remunerated over a period of time. We do not want a situation such as the current one, where bad lawyers will not be in any way limited from taking forward unmeritorious cases.

My Lords, will my noble friend give way?

My Lords, may I remind the noble Lord that the Companion to the Standing Orders and Guide to the Proceedings of the House of Lords, in rules of debate on Report says:

"On report no Member may speak more than once to an amendment".

That also applies with questions to the Minister.

My Lords, I am not speaking, I am intervening. I think you can do that.

My Lords, I remind the House that interventions should be only for elucidation and that once the Minister is on his feet, he should be responding to points. The only person who can speak thereafter is the mover of an amendment.

My Lords, I am going to respond to the noble Lord's invitation to ask if there is a matter that does not appear to be covered.

As I understand Amendment No. 46A, these reconsideration of legal aid provisions apply only where the court has made an order of recommitment to the tribunal or to a higher court. It does not apply where the application has failed. It seems to apply only if the application for reconsideration has succeeded. Is that right?

Yes, my Lords. The noble and learned Lord is correct.

My Lords, I regard the Government's response to our amendments as deeply disappointing. I am also seriously concerned about some of the human rights implications. The Government are being illogical. They are not proposing to modify the present rules about the grant of legal aid for the first hearing before the tribunal. That is something that has undoubtedly been abused at certain times in the past, but I think that the Government recognise that, where a merits test is satisfied, it is necessary to grant legal aid for the first hearing before the tribunal. Of course, the number of first hearings is far larger than the number of appeals so that is the level at which the real cost is incurred and there will be no real saving on that from any of these amendments.

The Government are proposing to withdraw legal aid from only some cases of the making of an application and from cases of reconsidering following the making of an application where the application has been granted. We on these Benches are prepared to accept an amendment in a form that would mean that legal aid can legitimately be withheld in cases where there are no reasonable grounds for an application. What we find completely unacceptable is that legal aid should be withheld in cases were there is a reasonable ground for application, and not only withheld, but withheld retrospectively, at the end of the case, when the lawyer who has taken on the case has no guarantee whether that case is going to be successful.

The Minister referred to the need for more rigorous examination by lawyers. We are now facing a situation where a lawyer will have to say to himself or herself, "This case has a reasonable chance of success but it is not certain. I simply cannot afford to take that case without a guarantee of payment". Success fees are wholly inappropriate in order to deal with this situation. Success fees are about cases involving money. I perhaps go a little further than the noble Lord, Lord Kingsland, but I would be prepared to accept success fees in cases where money is at issue. In those cases a lawyer can, and indeed should, say, "You have a 50:50 or perhaps even a 55:45 chance of success but it will cost you far more money if you lose than you will get from it if you gain. It is not therefore in your interest, or in mine, to start these proceedings. Therefore, I am not going to take this case, which in the old days I would have taken because the test was whether it had a better than even chance of success". That sort of financial cost-benefit analysis is wholly inappropriate for asylum cases, as of course it would be in criminal cases.

I am not suggesting that one can equate asylum cases with criminal cases completely. In criminal cases, it has long been accepted, quite rightly, that a defendant in a criminal case is entitled to be defended by a lawyer who is paid through legal aid and can expect the lawyer to put forward a defence which is seen to have no reasonable chance of success whatever. We do not go as far as that in asylum cases. We are simply saying that an asylum seeker—someone who is an appellant in a case of this kind, seeking reconsideration—should be entitled to have legal aid except in cases where there is no reasonable chance of success.

This is an issue about which I and my noble friends feel very strongly. So far as today is concerned, we are in a bit of a practical quandary because the noble Lord, Lord Kingsland, has made it clear that he is not at present in a position to support our amendments fully. It certainly seems to us, therefore, that the appropriate thing to do today is to ask the leave of the House to withdraw the amendment which I have moved in order to give an opportunity for further consideration of the matter in the hope of achieving a consensus. However, we would in those circumstances wish to bring this back. I therefore beg leave to withdraw the amendment.

moved Amendment No. 47A:

Page 16, line 4, leave out from "of" to end of line 5 and insert "that Fund"

moved Amendment No. 48B:

Page 16, leave out line 7 and insert "powers in subsections (2) and (4)"

moved Amendment No. 49A:

Page 16, line 10, leave out from "to" to end of line 12 and insert "the result of the reconsideration or of the reference under section 103C);"

moved Amendment No. 50A:

Page 16, line 32, leave out first "the" and insert "a"

moved Amendment No. 50B:

Page 16, line 38, after "appeal" insert "under section 82 or 83"

moved Amendment No. 50C:

Page 16, line 39, after "more" insert "legally qualified"

My Lords, three of the amendments in the group—Amendments Nos. 54, 55 and 56—are in my name and that of my noble friend Lord McNally. Two of the others—Amendments Nos. 54A and 57A—were tabled by the noble Lord, Lord Kingsland, and I have also put my name to them.

There is enormous value in having some lay members of the tribunal. A purpose of many parts of the tribunal system is that it is possible to bring into tribunals that exercise judicial functions people who have practical experience, even if they do not have legal qualifications. Employment tribunals are a well known example. For the reasons very clearly expressed by the noble Lord, we think it of particular importance that the AIT should not be restricted purely to people with a legal qualification. Many lay people have the common sense, understanding of human nature and so on to make them at least equally good judges of fact as people with legal training. As the noble Lord explained, in very many aspects such judgment is particularly important.

That is more the case than it would be otherwise because of the notoriously inadequate record of the initial decisions made by the immigration officers, of which a strikingly high proportion are overturned on appeal. We see no prospect of the standard of those decisions being substantially raised in the immediate future, although we hope that it will be a target in the longer run. Whatever our views might be if that standard were higher than now, unless it is substantially raised there is a very strong case—it would remain in any event—not only for the inclusion of lay members on the tribunal, but for saying that the initial decision of the tribunal needs to be taken by a panel of three. Then one or two lay members could be included on the tribunal, with a legally qualified chair. Again, that pattern is very frequently adopted in other tribunals, such as employment tribunals.

The amendments would very substantially advance the cause of justice. As the noble Lord said, where there has been a failure of justice by the tribunal, the consequences could be very serious—more so than those of a wrongful criminal conviction. We are happy to make common cause with the noble Lord over all the amendments.

My Lords, I have resisted the temptation to speak on the subject throughout debates on the Bill. I reiterate that I am a lay member of the Immigration Appeal Tribunal. One factor not covered in the debate is the amount of stress on the current chairmen of the tribunals, let alone the adjudicators. They have political and public pressures on them to do the job and get it right. In many cases, they work in isolation on case after case, and write up very often late at night. On many occasions, I can see the exhaustion in my colleagues' faces. Occasionally, a legal member can go off the rails. If he is sitting on his own, that may not be picked up for quite a long time.

My Lords, I am encouraged by the presence of my distinguished predecessor, the noble and learned Lord, Lord Archer of Sandwell, to intervene briefly. I wish to quote from something that the Council on Tribunals, under the noble and learned Lord's chairmanship, said on an earlier proposal of this kind in its 1999 report. Page 11 states:

"We were troubled by the removal of the lay element from the Immigration Appeal Tribunal. Although we recognise that lay members may be unnecessary in cases concerned solely with issues of law, we believe that they have a valuable contribution to make when issues of credibility arise, particularly in asylum appeals".

As it happens, and as the noble and learned Lord will certainly remember, that proposal was changed during the passage of the Bill and the Lord Chancellor's power to appoint lay members to the Immigration Appeal Tribunal at that stage was preserved. This is not a point to which the Council on Tribunals has addressed quite the same attention on this occasion. Being more preoccupied with some of the other matters that I have touched on today, and given its less than full enthusiasm for the proposed single tier in this area, it has focused on other things.

In fairness to the Minister, we should acknowledge that the position is a little muddier in this area than has so far been acknowledged in this debate. The report published two or three years ago—I have forgotten the exact date—by Sir Andrew Leggatt, Tribunals for Users, which underpins the Government's forthcoming proposals for reform in that area, pointed out that it was curious that lay members are in the second-tier tribunal and not in the first-tier tribunal. That is the opposite of what one would expect, and what we would urge, in most systems.

I realise that the world has changed, because Sir Andrew recommended a general two-tier approach to tribunals, which the Government have now rejected in this area. It was in that context that he made the following proposal, which I quote from paragraph 23 of his report:

"There should be a first tier immigration and asylum tribunal, within a separate Division, which should be the sole judge of issues of fact. Complex factual issues are a regular feature of immigration and asylum cases, ranging from the circumstances of an alleged marriage or the obligations within an extended family abroad to the political situation in a country from which asylum is sought. Many cases would not be suitable for hearing by a chairman, even legally qualified, sitting alone and expert members should be used when appropriate at this level. In setting the qualifications for appointment to the tribunal, and to sit in particular cases, we believe"—

that is to say, Andrew Leggatt and his team—

"that special care should be taken to ensure that those selected bring relevant experience and skills to the decisions to be taken, such as knowledge of conditions in particular countries concerned, or of refugees".

In the context in which Sir Andrew reported, he said that there should be a second-tier tribunal, which would consist of lawyers sitting alone—that is to say, the more normal model.

I recognise that in one sense the world has moved on from the one in which Sir Andrew made those proposals. Nevertheless, the core of this is the argument that he sets out in the paragraph from which I have just quoted, which links very nicely with some of the remarks made in this debate about the nature of the decisions taken at what I will express in shorthand as the first-tier level. I have in mind the factors that need to be considered, the importance of credibility and the involvement of relevant experts—that was the word he used; it was certainly non-lawyer participants—in making those judgments of fact.

It would be helpful if the Government could clarify why they have rejected this line of argument, which appears to have at least as much merit in the context of the single-tier proposals as in the context, which I acknowledge is different, of what Sir Andrew said.

My Lords, I wish to reiterate a point that my noble friend Lord Kingsland made: the possibility of having lay members and an ethnic minority member, or perhaps two, to make the process more credible in the eyes of the public and the asylum seeker concerned. Several noble Lords have pointed out that this is the one opportunity when the facts can be ascertained. It is an absolutely critical time for an asylum seeker. To extend the possible membership of the tribunal by making it possible to have a suitably experienced—as the Bill requires—ethnic minority member is a very important point that we should not forget.

My Lords, I wish to place on the record that I am well aware of the value that lay members have brought in the past in these matters, and of the value that they bring to tribunals in a range of circumstances, not least employment tribunals, as the noble Lord, Lord Goodhart, indicated. As the noble Lord, Lord Newton, signalled, we shall shortly publish our proposals for taking forward Sir Andrew Leggatt's proposals, which I hope will pick up the essence of his approach. However, that is for another time.

Amendments Nos. 54 to 56 have been grouped with Amendments Nos. 50C, 54A and 57A as they relate to the appointment of members of the asylum and immigration tribunal, and how the members are deployed within the tribunal. Amendments Nos. 54 to 56 when read together would mean that a person is eligible for appointment as a member of the tribunal if, in the Lord Chancellor's opinion, he or she had legal or other experience that made them suitable for appointment. The thrust of these amendments would be to retain the existing provisions in the Nationality, Immigration and Asylum Act 2002 for the appointment of adjudicators with eligibility for judicial posts not based solely on legal qualification.

Amendment No. 54A is very clear that its purpose is to enable lay people to be appointed to the tribunal. The noble Lord, Lord Kingsland, tabled a similar amendment in Committee, which was not debated then.

Amendment No. 57A is new and would require appeal hearings to be conducted by three member panels, unless directed by the president. Amendment No. 50C would ensure that determinations made by panels composed of lay members would still be subject to review in the High Court.

Let me seek to explain why we do not feel that these amendments are appropriate. After considerable thought, as a product of how we craft a new single-tier structure, we have taken the decision to ensure that the judiciary in the new asylum and immigration tribunal are appointed on the basis of qualified legal experience, or, in the opinion of the Lord Chancellor, they have legal experience which makes them suitable for appointment.

In setting out the reasons why we do not agree with the amendments, I will go back into history a little to explain how we have got to the current situation with the role of lay members in the appellate system.

The existing two-tier appeal system was introduced by the Immigration Act 1971. Lay members participated in panels formed as part of the Immigration Appeal Tribunal, as appeals to the IAT could be made on the grounds of errors both of law and of fact. However, the system of appeal introduced over 30 years ago by the Immigration Act 1971 bears little relationship to the complex system that we have today.

Compared to 1971, asylum and immigration appeals now raise many complicated legal issues that require close legal scrutiny and consideration. In these circumstances, a judge who has been appointed on the basis of legal experience is considered competent to conduct an appeal hearing on their own. However, it would be impossible to allow a lay member to conduct an appeal hearing on their own, and so this means they may be deployed only as part of a panel, as they are at present on the IAT.

However, even within the IAT it has become open to question whether lay members can claim to be an essential component to panel determinations on points of law, especially since the Nationality, Immigration and Asylum Act 2002, which restricted appeal to the IAT to points of law only. Lay members have made a valuable contribution to the IAT over the past 30 years or so, but these changes have diminished the role of lay members and placed them in an anomalous position—a position that the Government have addressed as part of their proposals for the new Asylum and Immigration Tribunal.

The majority of cases in the new tribunal will be heard by a single immigration judge. As adjudicators do now, they will need to consider points of law and of fact, and will therefore need to be legally qualified, legally experienced and competent to do this effectively. This rules out the deployment of lay members in this role, as their sole contribution to the decision-making process is restricted to matters of fact. It might be argued that lay members should be utilised in three-member panels, as is done now. However, in the new Asylum and Immigration Tribunal, the intention is that panels will usually be set up to hear only appeals that raise novel or complex points of law, or those that help to set authoritative case law for the tribunal. It goes without saying that the judicial bench hearing these appeals must be legally qualified.

The requirement in Amendment No. 57A that nearly all appeal hearings must be by three-member panels would, of course, also have a detrimental impact on resources and the speed of the appeal process. First, it would be wasteful of tribunal resources, as in the existing system just over half of appeals stop at the adjudicator stage, and only a minority of cases are ever considered by a three-member panel in the IAT. There is no need to have a panel for every case. Secondly, if the new tribunal had three-member panels within the faster times we expect, it would have to recruit many more new members, which would have to be paid for. Thirdly, if the tribunal were to keep to its existing resources, the number of appeal hearings it would be able to do per month with three-member panels would fall dramatically. There are some 56 lay members, and they are part time, sitting on average 40 to 50 days per year. That would inevitably lead to backlogs and delays. Lastly, in respect of lay membership within tribunals, the Leggatt report concluded that,

"There is no justification for any members to sit, whether expert or lay, unless they have a particular function to fulfil".

That is the essential thrust of why we believe that these proposals are consistent with Andrew Leggatt's proposals, recognising, like the noble Lord, Lord Newton, that times have moved on.

While lay members have had a role in the existing system, the Government have considered the needs of the new tribunal very carefully. We have concluded that the case for retaining lay members is no longer sustainable. To retain their services purely on the basis of custom and practice—which is what these amendments call for—would not be appropriate, courteous or right.

On the point made by the noble Lord, Lord Kingsland, about credibility, the future members of the IAT, adjudicators and legal members of the IAT are well able to assess credibility issues. They are trained and able to do so. The tribunal will be flexible; it will have both panels and single judges for cases. The tribunal is also well able to consider points of fact, that is, the purpose of the appeal when facts and law are considered together. If facts are not properly considered, that might amount to an error of law, and could be the subject of a review in the High Court.

In the new IAT, the judiciary are able to assess facts, as I have signalled, and if expert advice is required, as referred to by the noble Lord, Lord Goodhart, no doubt this can be requested. The low percentage of cases that result in the adjudicator's determination being overturned points to that credibility.

On the point raised by the noble Countess, Lady Mar, we are seeking to improve the quality of the tribunal through a new judicial structure that would allow the monitoring of individual members of the AIT. If a member made an error of law in determination, again that could be subject to appeal.

I have touched on the points made by the noble Lord, Lord Newton, about Sir Andrew Leggatt's report. The central point is that he was describing what was appropriate for a two-tier system; we are discussing a single-tier system. I share the desire for diversity expressed by the noble Baroness, Lady Carnegy of Lour. We are clear that that is subject to a merit test, as has been signalled previously. The way to address that is to look at how to ensure that there is a pool of suitable, qualified lawyers available for appointment if they meet the merit test to be considered as judges in the new AIT structure.

I hope that I have been able to explain why, with some sorrow, we feel that the contribution that lay members have made in the past has now come to an end as a consequence of the substantially different role that the AIT will perform.

My Lords, I am not sure whether to conclude that the Minister completely missed the point of all the submissions which have been made by your Lordships, or if he simply did not want to know about them. I will leave it to your Lordships to reach your own conclusions. I will not repeat my speech, although the Minister did not answer any of the central issues that I raised in my submission.

I am most grateful to all noble Lords who contributed. I will, if I may, single out my noble friend Lord Newton of Braintree, who brought the telling argument of Lord Justice Leggatt to bear on the lack of logic of the Minister. The Minister seemed to suggest that, because the only grounds of appeal from the tribunal to the High Court are errors of law, the only people who are qualified to sit on tribunals ought to be lawyers. Yet the basis of all the arguments that have been deployed on this amendment this evening is exactly the opposite. It is because grounds of fact are not appealable to the High Court that we need to be confident that they will be properly determined at tribunal level. The Minister has simply not confronted that question, let alone answered it to the satisfaction of the Opposition. The noble Countess, Lady Mar, observed that this is the only tribunal that can send a person to their death because it does not find a story credible. That is particularly and conclusively telling.

I want to test the opinion of the House. The first amendment in this group is Amendment No. 50C. Will the Minister accept that—if by any chance the Opposition and our supporters should succeed in this Division—Amendments Nos. 54A and 57A are contingent upon Amendment No. 50C? Will he accept that the group of amendments goes together in the vote?

My Lords, I would be grateful if the noble Lord, Lord Kingsland, would allow me to reflect on that and give him an answer after we have seen the outcome of that Division.

My Lords, the issues have been widely canvassed in the debate this evening. It would be most extraordinary if—were we to win this vote—the Minister then said that we had to go through all the other amendments in this group as well. Be that as it may, I would like to test the opinion of the House.