Contribution
My Lords, Amendments 203F and 203G deal with the publication of tribunal decisions. First, I thank my supporters in this amendment, the noble Lords, Lord Faulks, Lord Jackson of Peterborough and Lord Alton of Liverpool. These amendments deal with an important issue and I should outline what the current position is in relation to the publication of judgments.
In the First-tier Tribunal (Immigration and Asylum Chamber), decisions of the judges are not routinely published. In the Upper Tribunal, which hears appeals from the First-tier Tribunal (Immigration and Asylum Chamber), decisions are published, although not all decisions may be reported. Bearing that in mind, I then invite the Committee to note that the noble and learned Baroness, Lady Hale, sitting judicially in the case of Cape Intermediate Holdings v Dring, 2019, United Kingdom Supreme Court 38, found that the purpose of the open justice principle was twofold.
The first purpose is to enable public scrutiny of the way in which courts decide cases, to hold judges to account for the decisions they make and to enable the public to have confidence that judges are doing their job properly. The second is to enable the public to understand how the justice system works and why decisions are taken. The First-tier Tribunal (Immigration and Asylum Chamber) is one of the largest of the seven chambers of the First-tier Tribunal. Of the other chambers, the Tax Chamber, the Property Chamber, formerly the Lands Tribunal, and the General Regulatory Chamber, which deals with Information Commissioner matters, among other things, all routinely publish their decisions on the website. Furthermore, the Employment Tribunal, which, although not part of the First-tier Tribunal, is a tribunal of even jurisdiction, also publishes all its decisions on the website. But the First-tier Tribunal does not do that. Its decisions are made behind what is effectively a curtain of secrecy.
This is no small number of cases. In 2020-21, the First-tier Tribunal (Immigration and Asylum Chamber) disposed of 20,000 appeals. In 2021-22, it disposed of 41,000 appeals. In 2022-23, it disposed of 38,000 appeals and in the last year we have numbers for, 2023-24, it was 39,000 appeals. It will come as no surprise that it is plainly in the public interest to have openness and transparency of decision-making. There should be public scrutiny of the decision-making of the First-tier Tribunal (Immigration and Asylum Chamber). There is no basis for there not being transparency and publication of judgments of the First-tier Tribunal.
It is of course open to litigants in the First-tier Tribunal to apply to the tribunal for an order that the identity of everybody in the case be anonymised in the decision, so no risk to anyone participating in the case would be occasioned by the publication of the decision. The Supreme Court, in the case of Kambadzi in 2011, made it clear that, while anonymity needed to be justified in each case, there is now an expectation that in asylum cases there are frequently anonymity orders. So there is no argument that the non-publication of First-tier Tribunal decisions is to protect the people participating in the cases. There is, in fact, absolutely no coherent basis for not publishing these decisions, and this is made all the worse because there is very significant public interest in this decision-making.
I venture to suggest that the judges of the First-tier Tribunal would welcome the additional openness and transparency. We hear cases reported in the press: for example, the famous “Case of Theresa’s cat”, as it was called in the Daily Mail, and the “Chicken Nuggets Case”. We can all think of cases which have been reported by reason of matters which are identified as amounting to a breach of Article 8 or Article 3 of the convention. If the decisions were published in an accessible way on the internet, like all the other decisions in the other tribunals I listed, the press could immediately go to the decision and see whether that particular feature was, in fact, decisive in the decision-making.
And it cuts both ways. Not only would it be open to a journalist or researcher to analyse the methods by which decisions are taken by the judges of the First-tier Tribunal; they could analyse it by reference to the individual judge. Allegations of bias may be rebutted, or indeed it may be found that particular judges are refusing all cases. It does not favour one side of the argument or the other; it is simply fair and appropriate that these judgments be published.
The only reason which I can discern that these decisions are not published at present is that it has been the practice hitherto. Since 2007, on the formulation of the First-tier Tribunal (Immigration and Asylum) chamber, there has been a practice direction. There is nothing in statute, and the judges one speaks to can see no good reason why those decisions are not published. We know the tribunal service can manage it, because it manages it in the tax chamber, the property chamber, the general regulatory chamber and in the employment tribunal; it is the same tribunal service. Furthermore, it has all the judgments electronically in any event, so there is no cost argument and no process argument.
This is an amendment whose time has come. The Government should accept it at this stage and appreciate that this is something that warrants careful consideration. I beg to move.