My Lords, I am not sure whether it is the time of the evening that prompted that reference to dinner; otherwise, it is not immediately apparent to me what the relevance of it was. I will come back to that rather less substantive point—if I may say so, respectfully—at the end.
Let me deal first with Clause 31. I am grateful to the noble Lord, Lord Dubs. He is right that there are points of principle that underlie these amendments; they underlay the last group as well. I too will try not to repeat the points that I have made. There are points of principle that are at issue between us, and we have set out our respective positions. We believe that the test set out in Clause 31 is compliant with our international obligations. More specifically, we believe that it will provide, and lead to, better decision-making, because it sets out a clear test, with steps for decision-makers, including the courts, to follow. That will lead to greater consistency.
Turning to Amendments 103 and 104, although I listened very carefully to the noble Lord, Lord Dubs, and I agree with the importance of us carefully assessing whether asylum seekers have a well-founded fear of persecution, as required under Article 1(A)(2) of the convention, we do not agree with these amendments because, taken together, they will essentially maintain the current standard of proof system. In so far as my noble friend Lady McIntosh of Pickering said that it was, to a certain extent, a probing amendment, let me try to explain.
First, this is not about setting aside decisions of the court. The courts are there to interpret the legislation as it stands—that is what they do. Parliament is entitled to change the legislative background, in so far as it is consistent with our treaty obligations. Clause 31 sets out a clear, step-by-step process. I hear the point made by the noble and right reverend Lord, Lord Sentamu, that it should be—so far as legislation can be—in simple language and a clear test. The problem at the moment is that there is no clearly outlined test as such. There is case law, there is policy and there is guidance in this area, but the current approach leads to a number of different elements being considered as part of one overall decision. What we seek to do here is to
introduce distinct stages that a decision-maker must go through, with clearly articulated standards of proof for each. We believe that this will lead to better and more consistent decision-making.
At its core, in Clause 31(2) we are asking claimants to establish that they are who they say they are and that they fear what they say they fear to a balance of probabilities standard. That is the ordinary civil standard of proof for establishing facts, and those are facts in Clause 31(2); namely, more likely than not. It is reasonable, I suggest, that claimants who are asking the UK for protection are able to answer those questions. We have looked carefully, of course, at the often difficult situations that claimants might come from and the impact that might have on the kinds of evidence that they can provide. However, we consider that our overall approach to making decisions, which includes a detailed and sensitive approach to interviewing, allows all genuine claimants an opportunity to explain their story and satisfy the test.
There is international precedent that supports our decision to raise the threshold for assessing the facts that a claimant presents to us to the balance of probabilities standard. Both Canada and Switzerland—highly respected democratic countries, dare I say it—have systems which examine at least some elements of a claimant’s claim to this higher standard. Respectfully and rhetorically, let me ask this of the noble Baronesses, Lady Ludford and Lady Bennett of Manor Castle. The noble Baroness, Lady Ludford, said that this was confusing and complex. The noble Baroness, Lady Bennett of Manor Castle, said that she had horror at it. The higher standard is used in Switzerland. Does the horror extend to Canada and Switzerland as well? There is nothing wrong in principle with adopting the higher test for some parts—I will come to it in more detail—of the decision-making tree.