Examination of Witnesses (Questions 40-59)
HON MR
JUSTICE HODGE
OBE AND HON
MR JUSTICE
COLLINS
21 MARCH 2006
Q40 Chairman: In practice when you
get, for example, not just unrepresented applicants but an unrepresented
Home Office you finish up evolving such a system, do you not?
Mr Justice Hodge: Almost, yes.
Those are the most difficult cases when the Home Office do not
turn up—
Q41 Chairman: Quite common.
Mr Justice Hodge: It is very difficult
because you have to stay outside the arena and yet try and tease
out—
Mr Justice Collins: There are
guidelines which in fact I approved some years ago to deal with
that sort of a case because you have to be careful not to overstep
the line because the immigration judge must not appear to be an
extra prosecutor, as it were, he has got to be careful to appear
to be and indeed actually to be, of course, fair throughout and
not to take over the mantle of the Home Office presenting officer.
Mr Justice Hodge: You would restructure
the system very significantly; you would abolish the Home Office
officials making decisions and you would put a judge in at that
stage, and that judge would have help from the Home Office, would
run the case and run the investigation, it would be a bit like
the Crown Prosecution Service's relationship with the police,
except the CPS do not make the decisions, fortunately, they send
them off to the courts. That is what you would do to run an inquisitorial
system.
Mr Justice Collins: I think that
is right, but whether it would take much longer—
Q42 Barbara Keeley: It sounds as
if it would. Is there a sense in which you think it would be fairer,
particularly if you look at out of country appeals with an extremely
low success rate; do you think that would be a fairer system?
Mr Justice Hodge: No, is my view.
Breaking very significantly with the tradition of the way British
jurisprudence works for any particular group of individuals, you
would have to have a major justification for it, I think.
Mr Justice Collins: Even in an
adversarial system, if you have someone who is unrepresented it
is, after all, traditional for judges to try to ensure that that
person's case is put to its best advantage. Obviously there is
a limit to how much one can do; I can recall when I was at the
Bar if I was against an unrepresented party one was sometimes
a little upset if you found the judge was weighing-in too much
in favour of the unrepresented person and that could itself become
unfair. It is a line that one has to recognise and not cross,
but every judge will, I hope—certainly should—deal
with a matter that becomes apparent if he is persuaded that there
is something that ought to be looked at but which, because, perhaps,
the person is unrepresented or even incompetently represented,
has not been drawn out to best advantage. That is the limit of
it and that is something that has always occurred, even in our
system.
Q43 David Howarth: Coming back to
the backlog, or a possible aspect of it—you will probably
notice the theme of our questions—we have gathered that
there has been a delay in the appointment of new immigration judges
following some errors by the Department of Constitutional Affairs.
The figures have varied from what we have seen, but what appears
to have happened is that there were some mistakes in appointing
salaried judges in two areas and that led on to reconsideration
of the process to apply fee-based judges overall. I was just wondering
whether that is going to have an effect on the backlog.
Mr Justice Hodge: Let me clarify
the position. We advertised for salaried judges at Bradford and
Stoke and we wanted to appoint about five in each hearing centre.
We went through the process and the Lord Chancellor pulled the
competition because he took the view that the process at an early
stage had gone wrong. I have read the letter that he wrote to
your chair and that conforms with what my understanding of the
position was, papers that should have been available were not
made available. That is the first thing; that competition has
been re-advertised very recently, the closing date is fairly soon
and the interviews for that are going to be in May-time, maybe
June, and with luck the appointments will be made shortly after
that, before the August break as it were, but it always takes
time for salaried judges to get into place because of problems
about them leaving their previous jobs. The fee-paid competition
has not been affected by that at all. The system advertised for
new fee paid judges. We want a net increase of about 100. We have
about 100 judges who are on five-year fixed term contracts and
the Lord Chancellor took the view that they should not be automatically
offered a new job. All of them have applied in this fee paid competition,
virtually all of them have. We had 800 applications for posts.
We are going to interview something over 500 people. Those interviews
are starting very shortly. The system sifted in all the current
people who are on five-year fixed term contracts. The competition
is divided between those who are prepared to work in London and
those who are prepared to work out of London. We hope the Lord
Chancellor will be appointing those in London first and they will
be appointed, again, before August. We have a training date for
them in September and they will be on-stream after that. The people
out of London a bit further on. Have the problems with Stoke and
Bradford made any difference? The answer has to be yes but not
a huge amount. The reason is the vast majority of people who apply
for jobs as salaried judges are already fee paid judges because
they are already fee paid judges they carry on doing their fee
paid work. It would have been better, and we would have got a
bit more out of them, if we had been able to transfer them a little
earlier than we could have done to do the salaried work because
on the whole salaried judges sit more and do more work than fee
paid judges. It has not made a huge difference. It would have
been better if it had not happened but it is not a really significant
factor as to why we cannot get through the level of work that
we have got at the moment or get better frictional levels, whatever
they may be, until the spring of next year.
Q44 David Howarth: Can I just come
back to the fee paid aspect. The impression that the Lord Chancellor's
letter gave to the Chair was that there were two elements in what
appears to be a two month delay. One was simply the weight of
applications, which was understandable, but the other was something
to do with learning the lessons of the Bradford and Stoke events.
Am I right in thinking that is not the impression you have?
Mr Justice Hodge: I have got his
letter here somewhere. That is not the impression I have. The
competition for fee paid judiciaries, if I may put it this way,
motors along independently of the Lord Chancellor's decision on
Stoke and Bradford. We are starting the interviews fairly shortly.
It is a fantastic task. You have to take out senior judges to
be a part of a three person panel. I was working it out today,
it is something like 137 judge days to do all these interviews
but we are doing it. We have a great feel, I am pleased to say,
and I hope the system will be helped by having significantly additional
numbers certainly in place by the end of the year and quite a
lot of them before the end of the year.
Q45 David Howarth: You mentioned
"clearing the backlog by spring next year".
Mr Justice Hodge: Yes.
Q46 David Howarth: Is that assuming
the present situation with the delay in appointing the new judges
or is it on some other subject?
Mr Justice Hodge: We do not think
that the appointments system is going to make a huge difference
to all of that. What we hope, and to pick up on what Mr Vaz was
saying earlier on, is with the increased number of judges we will
be able to sit in an increased number of courts and therefore
the timescale—the 56 days—and all those problems of
the paperwork going backwards and forwards can be reduced and
we will be able to hear the cases. I am confident that the new
judges will make a contribution but if we did not have them we
think we would still probably get through to a much more manageable
level of work in progress by the spring in any event.
Q47 David Howarth: Back on the salaried
side, we have been given the impression that the Department is
looking to increase the numbers there substantially as well, is
that right? The number was something like 220 vacancies.
Mr Justice Hodge: No. I do not
know where that comes from.
Q48 Keith Vaz: It comes from the
Minister.
Mr Justice Hodge: 220 fee paid
is probably what he is talking about.
Keith Vaz: 220 vacancies.
Q49 David Howarth: There is some
confusion about this.
Mr Justice Hodge: It is not salaried.
We have 183 salaried judiciary and 383 fee paid judiciary at the
present time. We want to get to nearly 500 fee paid judiciary
and we want to add somewhere between 10 and 15 more salaried judiciary
to our numbers. In very round figures, we ought to finish up with
something like 200 salaried judiciary and just under 500 fee paid
judiciary at the end of all this process.
Q50 Keith Vaz: Maybe it would be
helpful, because the Minister is obviously giving us different
figures, if we had a timetable so we keep track of these judges
and we do not find them in the cupboards.
Mr Justice Hodge: There are no
judges in any cupboards in our system.
Q51 Keith Vaz: None in the closet.
Mr Justice Hodge: No.
Q52 Keith Vaz: If we could have that
note it would be helpful because we have had different figures
from the Lord Chancellor.
Mr Justice Hodge: We will make
sure we will get them for you. What I am telling you is, I hope,
very up-to-date. We will make sure you get it in an easy and clear
way.
Q53 David Howarth: The total you
are aiming for, how has that figure been arrived at? What has
prompted the precise increase that you are looking for?
Mr Justice Hodge: The core of
the increase is in Stoke and Bradford. When we last did a big
recruitment exercise of salaried judges we had fewer salaried
judges assigned to those two centres than most of the other centres
and yet the workload that is now present, particularly for immigration,
visit visas and so on, in those two centres and, indeed, asylum
is greater than it was. In terms of public expenditure—and
I do not get involved in this—it is obviously a very interesting
issue as to how you handle volumes. If you have too many salaried
people with not enough work to do that is a disaster, if you have
too few that is a disaster as well. At the moment we have got
a lot of fee paid judges who work really hard in our system and
we would like to not make them have to do quite so many days,
which is probably helped by increasing the numbers of fee paid.
I say to all my judicial colleagues whenever I go around and talk
to them, which I do a great deal, there is always going to be
absolutely stacks of work for the salaried judges and as far as
I can see lots of work for the fee paid. We try and keep a balance
like that.
Q54 David Howarth: You are aiming
for a steady state then in terms of case in and case out?
Mr Justice Hodge: Steady state
has never been the case.
Q55 David Howarth: That is the basis?
Mr Justice Hodge: That is what
we are trying for, yes. A ratio which is about two salaried to
five fee paid.
Q56 David Howarth: What has happened
in the past, the ratios have got out of kilter. Is it true in
a way the Department has made errors on estimating how many judges
have been needed on previous occasions?
Mr Justice Hodge: As some of you
know, I started in this system about four or five years ago and
I think there were 80 salaried judges. We have well over doubled
the salaried judges in that period and we are adding some more.
The numbers of fee paid judges has dropped a bit. There was a
huge campaign before I arrived but the number of fee paid judges
has gone down. People give up, they get other appointments, they
retire. At one time we had 440 fee paid judges and we are now
down to about 380.
Q57 Keith Vaz: You keep referring
to "we", Sir Henry, are you involved in the sift process?
Are the judiciary involved in the sifting of applications?
Mr Justice Hodge: Yes. We actually
insist on it.
Q58 Keith Vaz: Judges have been involved
in looking at 800 applications?
Mr Justice Hodge: Yes.
Q59 Keith Vaz: No wonder there is
a backlog. You actually read the application forms, senior judges
have been involved?
Mr Justice Hodge: Yes, quite a
lot of them have been fairly senior judges. There was an occasion
when we were not involved in them and we were troubled about the
result that came out of that. The sift process, as run by the
DCM and no doubt as it will be run by the Judicial Appointments
Commission in the future means that you go along—and it
depends on the type of competition—and look at all the application
forms. You send them round a little circle, there is a chair and
you, the judge, and a lay member who is on the DCA panel. You
go through however many a day—10 or 12 a day—and you
sift in and sift out. Some speak for themselves, some drop out
automatically because they are hopeless. The difficult ones, like
always, are the ones who are on the cusp.
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