Contribution
My Lords, we all know the perils of hanging around too long in the Chamber of the House of Lords on 5 November, so I will be as brief as I can in introducing this group.
I have four points. The first is that the principle of open justice is well known. As the noble and learned Baroness, Lady Hale of Richmond, made clear when she sat judicially in the case of Cape v Dring in the Supreme Court, the first purpose of open justice is
“to enable public scrutiny of the way in which courts decide cases—to hold the judges to account for the decisions they make and to enable the public to have confidence that they 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) is one of the largest of seven chambers of the First-tier Tribunal. The other chambers of the tribunal—the Tax Chamber, the Property Chamber and the General Regulatory Chamber, which deals with Information Commissioner matters—routinely publish all their decisions, among other things, on the website. Furthermore, the employment tribunal also publishes all its decisions on its website. These are all tribunals of the same status as the First-tier Tribunal (Immigration and Asylum). Accordingly, this amendment would require there to be a standard practice that the immigration and asylum chamber also publishes its decisions.
There is no small number of cases. In 2022-23 there were 38,000 appeals, and in the last year for which we have numbers, 2023-24, there were 39,000 appeals. There is plainly very significant public interest in the making of decisions, largely on human rights grounds, in the First-tier Tribunal (Immigration and Asylum).
Presently, the decisions are not published. There is no good reason for this. In the First-tier Tribunal, it is open to litigants to apply for an order that the identity of everybody in the case be anonymised. The amendment would expressly allow that to continue, so there is no suggestion that it would expose anyone to any risk of reprisal or any other problem that would be posed by their identity being revealed, because they would be able to apply for anonymity.
In 2011, the Supreme Court made it clear in the Kambadzi case that, while anonymity needs to be justified in each case, there is now an expectation that there are frequently anonymity orders in asylum cases. So there is no argument that non-publication of First-tier Tribunal decisions can be based on a desire to achieve anonymity.
The reason why this is so important now is that there is a widespread amount of public interest in the decisions of the First-tier Tribunal. One need only recall the excellent journalism of the Daily Telegraph in reporting cases that it said demonstrated flawed human rights decision-making.
This cuts both ways. If this amendment is carried by the House tonight and then incorporated into the enacted Bill, we would see the publication of the decisions. That would have the effect of allowing the public to interrogate and understand the basis on which decisions are made in the immigration and asylum chamber. It would be a very significant myth-busting tool, because it would show how these decisions are taken. There would be no suggestion that these decisions are partial to one side or the other. This is simply the application of the normal principle of open justice.
Turning to the reason why it is not at present done, it is hard to identify an original reason why the practice of not publishing these decisions was adopted. There is a practice direction in the immigration and asylum chamber that allows the President of Tribunals to release a judgment on an application by a researcher or a journalist. The problem with that—the noble Lord, Lord Katz, encountered this when he gave his speech on this topic in Committee and said that this was in some way an answer to the point—is that, as the noble Lord, Lord Sandhurst, observed to him, you cannot apply for the disclosure of a judgment you do not know about. So that, I am afraid, is no good answer.
The other defence, as it were—or rather a flimsy stockade put up by the Government for not accepting this amendment—was that it is a matter for the judges. The answer is that no, it is not. It is actually a matter for this Parliament to decide that these judgments should be published, and, what is more, it is consistent with the common law, as set out so clearly by the noble and learned Baroness, Lady Hale, in her landmark decision in Cape v Dring. As I said in Committee, this amendment’s time has certainly come, and I urge all noble Lords to support it.