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Lord Hylton: My Lords, I thank noble Lords who have taken part in this short debate. I am grateful for the fair degree of support from the opposition Benches and to the noble Lord, Lord Bassam, for his generally
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sympathetic response. I fear that I have not been successful in getting the Government to move forward significantly. I would like to try out some further questions on the noble Lord.
Lord Williams of Elvel: My Lords, I am sorry to interrupt the noble Lord, but we are at the Report stage.
Lord Hylton: My Lords, in that case I shall try my best to be brief.
We have been discussing the Palermo protocol. I was under the impression that the Bill gave the Government an opportunity to ratify it. I may be wrong; perhaps the Children Bill would be a more appropriate place for that. One way or another, we would like to know where the Government stand.
Can the Government go further than the noble Baroness, Lady Scotland, did on 5 April, as reported at col. 1663 of Hansard, on the United Kingdom's not opting into the new European Union directive about victims of trafficking for exploitation? If the Government think that their system is superior, have they tried to convince the EU to apply it elsewhere? Has the draft directive been improved and amended since the beginning of April? The course of the research that I mentioned has shown that "hot addresses" crop up in practice, where people who have been either smuggled or trafficked into this country pass through fairly regularly. Will the Government undertake to investigate such addresses and to deal with them?
Lord Evans of Temple Guiting: My Lords, I must remind the noble Lord again that we are on Report. The sort of questions that he is asking should be raised in Committee not on Report. I think that the House would wish me to ask the noble Lord to remember what stage we are at and not to treat this as a Committee stage.
Lord Hylton: My Lords, the noble Lord will be relieved to hear that I am about to conclude my remarks. Perhaps we should take up the suggestion of the noble Earl, Lord Russell, that Article 31 of the refugee convention may provide a way forward. Failing that, an amendment proposed by the United Nations High Commissioner for Refugees may provide a solution. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Claimant's credibility]:
Lord McNally moved Amendment No. 21:
The noble Lord said: My Lords, Clause 7, headed "Claimant's credibility", is in many ways the most subjective clause. Clause 7(2) says:
and so on. The UNHCR has quite rightly drawn our attention to the fact that what "the deciding authority thinks" can be the most subjective judgment, based as much on the cultural background of the deciding authority as on the cultural background of the person
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being interviewed. Therefore, it rightly warns us that the kind of considerations spelt out in Clause 7 should be treated with extreme caution.
The UNHCR helpfully provided an article prepared by Professor Audrey Macklin for the Immigration and Refugee Board of Canada. It says:
"Credibility determination is hard. It is frequently difficult to articulate in rational terms why one does, or does not, believe another . . . The stereotype goes something like this: truth-tellers look us in the eye, answer the questions put to them in a straightforward manner, do not hesitate, show an 'appropriate' amount of emotion, are neither too laconic, nor too verbose. Liars do not look us in the eye . . . do not answer the questions put to them . . . say too little . . . say to much . . . are either too demonstrative . . . or lacking in affect . . . Yet as we all know (or should know), culture, gender, class, education, trauma, nervousness and simple variation among humans can all affect how people express themselves. It is dangerous at best, and misleading at worst, to rely on a uniform set of cues as demonstrative of credibility, or lack thereof".
That is the core of the amendment. It would remove only one of the cues under subsection (2) that the determining authority is to treat as,
In my schooldays, that was called dumb insolence. It is a step too far to imply that silence—whether because of dumb insolence, trauma, cultural misunderstanding or sheer prudence that an answer might cause problems elsewhere—can be used by the deciding authority to imply that the claimant's credibility is at risk. I beg to move.
The Countess of Mar: My Lords, I remind noble Lords of my involvement as a member of the Immigration Appeal Tribunal. In all the 19 years that I have done the job, I have never needed to be told how to assess a claimant's credibility. One does it from experience and knowledge of the situation. I find this clause absolutely amazing. I support the noble Lord, Lord McNally, in his amendment.
Earl Russell: My Lords, my noble friend reminded me of a passage in Konrad Lorenz's book On Aggression describing introductions between Americans and Japanese. The American looks up, opens his mouth, bares his teeth and extends his hand, and the Japanese takes that as an act of aggression. The Japanese will bow his head, look submissive, remain quiet and give an impression of total subservience. Both impressions are equally wrong. We are hearing of a process very like that. The clause should be entitled, not "Claimant's credibility" but "Credulity of the determinator". Many applicants come from countries in which what is taken for a reasonable explanation is very different from what is taken as one here. I support the amendment warmly.
Baroness Carnegy of Lour: My Lords, there is a point in this amendment, and I have some sympathy with it. The noble Countess, Lady Mar, said
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something rather important. She does not think that usually one has to be told how to assess someone's credibility. Anyone who has sat on the Bench will know what she means. If the Government are going to do this, the list of things that are to be included should be carefully looked at. Of paragraphs (a) to (e) in subsection (3), (e) is the one that is, to my mind, the weakest.
If you do not without reasonable explanation produce a passport or a document, or explain why you have destroyed it, that is a concrete matter; but,
is not concrete at all. Even if it said "the manner in which" a person replied or failed to reply, I would be happier. We can all think of the difficulties that someone might have in answering. They might not answer just because they did not understand. This is a great weakness in this clause. I would rather like to think that the Government will look at it again.
Lord Bassam of Brighton: My Lords, the amendment would delete subsection (3)(e), which provides that,
is to be taken as behaviour that damages a person's credibility. Of course, we accept and understand that there are cultural differences. The example given by the noble Earl, Lord Russell, was pertinent and interesting. We accept that some claimants may have some cultural distance from the experience of responding to questions and that some claimants may find it painful to recount the details of their experience. Obviously, it depends very much on the circumstances. It is possible that the circumstances could provide a reasonable explanation for a claimant's earlier reluctance, or reticence, to provide a full story or to be entirely truthful. We fully understand the need for sensitive evaluation to take place—we see that as a requirement. However, only the applicant can know the truth of the claim, and therefore it is right that the general principle must be that it is for the applicant to co-operate fully to establish what the truth is.
It is the Government's view that where a person refuses to co-operate with our procedures by not providing information that is requested in connection with his claim, and which it is in his gift to provide, that is a clear demonstration of non co-operation. It is only right that such failure—unless justified by a reasonable explanation—should be taken into account and an adverse inference be made when assessing the credibility of a person's claim. Of course, we would accept a reasonable explanation.
I am sure that the noble Lord, Lord McNally, will not like that explanation, but it is right and appropriate. I heard what the noble Baroness, Lady Carnegy of Lour, said about this wording. The wording is right—I cannot bend to the suggestions that have been made on this. This is the right way to proceed, and I hope that the noble Lord will feel able to withdraw his amendment. It is an amendment
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which, if passed, would significantly weaken the position of the determining authorities. That is an important element to be considered.
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