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Lord Filkin moved Amendment No. 47A:

On Question, amendment agreed to.

[Amendments Nos. 48 and 48A not moved.]

Lord Filkin moved Amendment No. 48B:

On Question, amendment agreed to.

[Amendment No. 49 not moved.]

Lord Filkin moved Amendment No. 49A:

On Question, amendment agreed to.

[Amendment No. 50 not moved.]

Lord Filkin moved Amendment No. 50A:

On Question, amendment agreed to.

Lord Filkin moved Amendment No. 50B:

The noble Lord said: My Lords, in moving Amendment No. 50B I shall speak also to Amendments Nos. 57B and 60. We are not moving technical Amendments Nos. 57C and 59A. My noble friend Lady Scotland wrote to the noble Lord, Lord McNally, and the noble Baroness, Lady Anelay, on 25 May indicating that the Government would be seeking to bring forward a small number of new policy amendments to the Bill. Amendments Nos. 57C and 59A are not being moved pending these new amendments.

Government Amendment No. 50B clarifies that Section 103E applies to a decision of the tribunal on an appeal under Sections 82 or 83. This amendment is a tidying amendment and simply brings the wording in Section 103E into line with the wording in Section 103A.

Government Amendment No. 57B ensures that all of Section 103A through to Section 103E applies to appeals against deprivation of citizenship. It was always the Government's intention that all sections should apply to deprivation appeals and the amendment simply corrects a drafting oversight.

Finally, I turn to government Amendment No. 60. This amendment is consequential to government Amendment No. 18. The noble Lord, Lord Bassam, spoke to Amendment No. 60 when he spoke to Amendment No. 18 in the earlier sitting at Report. I therefore beg to move Amendment No. 50B and commend Amendments Nos. 57B and 60 to the House. As I said, I shall not move Amendments Nos. 57C and 59A.

On Question, amendment agreed to.
7 Jun 2004 : Column 43

5.15 p.m.

Lord Kingsland moved Amendment No. 50C:

The noble Lord said: My Lords, in moving Amendment No. 50C I shall speak also to the other amendments in the group. From my point of view, the crucial amendments in this group are Amendments Nos. 54A and 57A. Amendment No. 54A, which is kindly supported by the noble Lord, Lord Goodhart, is very close to the amendment that he and the noble Lord, Lord McNally, have tabled.

The issue behind this group of amendments concerns whether the new tribunal should have lay members on it. The existing tribunal does and normally sits as three, with one legal member and two lay wingmen. The new tribunal apparently will sit with only one legal member.

Anyone who has an even passing acquaintanceship with asylum applications will know that the credibility of the applicant is more often than not the determining issue. Credibility is an issue of fact. Indeed, credibility in an asylum case is a particularly difficult issue of fact, both because it is based on evidence given by applicants born and brought up in a world alien in religion, language and culture from our own; but also because it is extremely difficult to get reliable documentary or oral corroboration of alleged facts. Yet it is crucial that the new tribunal is, and is seen to be, competent in reaching accurate final conclusions about credibility.

That is so because the Home Office interview procedure is widely regarded as deeply flawed—the statistics speak for themselves on this matter; because the Home Office is not an impartial forum and becomes a party to any later appeal; and because, most important of all, the new tribunal is to be the one and only occasion when the factual issues are heard, assessed and determined by an impartial forum. Review of its decisions are only on errors of law, and then only on the papers.

So what steps have the Government taken to ensure that this impartial new tribunal is up to its task? The short and, indeed, long answer to that question is "none". Indeed, they have made the chances of an objective assessment of credibility even less likely. There are at least three reasons for that. First, the new tribunal is not a tribunal at all. The Government have not kept the existing three-person tribunal and expunged the single-person adjudicator. They have destroyed the three-person tribunal and replaced it with a single member. If any noble Lords want further proof of that, they should simply look at the schedules. The basis of the new scheme is not the schedule to the 2002 Act on tribunals, but the schedule on adjudicators. Indeed, it is hard not to detect a degree of hypocrisy in the use of the expression, "tribunal".

Secondly, the arrangements for the new so-called tribunals are just plain wrong, because applicants are entitled to have the factual aspects of their case heard, fairly and impartially, and assessed properly. If the tribunal were dealing with a criminal matter, the person appearing before it would have their case determined by
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tribunals of either three lay members in a magistrates' court, or 12 lay members in the Crown Court. However, the consequence of making factual errors in an asylum case can be far graver than in any criminal trial in this country.

Moreover, it is not only wrong of the Government to exclude lay adjudication from such tribunals, but plain foolish. The central object of the design of the statutory regime should be to make it sufficiently fair to discourage the courts from providing a parallel remedy in judicial review, as other statutory regimes have done successfully. One example is that of enforcement appeals. If the courts are not confident that issues of fact are properly dealt with by the system, they will permit judicial review on grounds of either perversity or disproportionality, following oral argument on permission applications—oral arguments that are denied under the proposed statutory regime.

That third consequence is much less likely to be the case if the tribunal is composed of three members. I accept that having three lawyers would be extremely expensive; but, much more importantly, it would be much less desirable than having one lawyer and two lay members, with the selection of lay members geared to employ individuals with long experience of assessing character, a reasonable proportion of whom should come from the ethnic minorities to reflect the backgrounds of the applicants. That would vastly improve confidence in the fairness of the objective fact-finding procedure. In doing so, it would make the statutory regime impervious to judicial review.

I hope that the Minister will forgive me if I express some scepticism about the Government's motives on the matter of lay representation on bodies that have a mixture of fact-finding and legal duties. That mistrust is most colourfully manifested in the Government's attitudes to jury trials, as we saw in the great debates on the then Criminal Justice Bill last year. We have also seen attempts—some successful—to remove lay members from tribunals, such as the social security tribunals. There seems to be a growing lack of trust by the Government in the judgment of our citizens. Is that because they perceive that our citizens have a growing lack of trust in them? I beg to move.

Lord Goodhart: 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
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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.

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