Asylum and Immigration - Constitutional Affairs Committee Contents


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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