Examination of Witnesses (Questions 220-239)
RT HON
LORD FALCONER
OF THOROTON
QC AND ALEX
ALLAN
28 FEBRUARY 2006
Q220 Chairman: It may well be the
subject of an appeal, I presume, but what you are really telling
us is that because subsequent censuses are firmly protected by
statute in order to give people the reassurance that you mentioned,
the 1911 one is an anomaly and the reason you are not prepared
to take a more relaxed view, even at this stage so close to the
release of the information, is an administrative one.
Alex Allan: There are points of
principle. Most previous census have followed a 100-year rule
and we have opened them up after a hundred years[3],
and the 1921 census and thereafter will all be subject to a 100-year
rule. It is a stated principle. When the 1911 census was issued
and then it has been completed there were explicit assurances
made that the information was provided strictly in confidence,
I think were the words used, and as a result we continue to believe
that it is appropriate, given, as I say, that all other censuses
either have been or will be protected for a hundred years, that
we should maintain a 100-year protection for the census as a matter
of principle. There are also, as I say, the administrative concerns.
We do intend to publish the information. It is not as if we believe
that we should hide the information, lock it away. We do have
a specific plan, a programme, to publish it all. What we are resisting
is publishing it either piecemeal or trying to bring it forward
in a way that might well mean we were not successful in publishing
it all at once and getting the computer systems in place.
Q221 Chairman: As you look ahead, with
time to prepare for the next census, there are two things about
that. First of all, I presume the 100-year guarantee is expected
to be a feature of the next census.
Alex Allan: I think it is a feature
of the 1920 Census Act, so I think it is a statutory provision
now.[4]
Q222 Chairman: Secondly, have you given
any thought to the thirst the departments have for information
and their tendency to want to add things to the census when the
census is not a voluntary social survey; it is an exercise in
which there are penalties for failing to provide the information,
and as the department with this overall responsibility for human
rights do you recognise that you have a sort of policing role
in saying, "Is it legitimate on pain of penalty to insist
that people provide this or that piece of information which the
department would find very useful?".
Alex Allan: I think in some ways
I may fall back on the Lord Chancellor's answer to Mr Wright about
policing human rights activities. This is clearly a matter where
the Office for National Statistics, who have the responsibility
for compiling censuses and also for accepting what questions go
into the census, are the people who would decide that balance.
Clearly, we would help and provide advice as asked. I imagine
if we felt that they were behaving in an outrageous manner and
neglecting all human rights considerations we would express that
pretty forcefully, but I have no reason to believe that that will
be the case.
Q223 Chairman: But there have been
big issues in previous years, arguments about racial origin questions,
about religious questions, different views about whether you should
or should not be required to answer such a question on pain of
a penalty. Surely the department has some role in dealing with
the request, because you did not used to be but you are now the
department which co-ordinates all of this information.
Alex Allan: As I say, we are responsible
for overall policy on human rights. We are not responsible for
the census. That is the business of the Office for National Statistics
which, like all government departments, have obligations under
the human rights Act. We have an overall commitment to spread
good practice to make sure they do understand their obligations
and we do that. The details of exactly where the balance would
fall on one particular issue, if we are satisfied that they have
actually thought about the human rights aspects, would be for
the Office for National Statistics, and indeed the department
responsible for them, which is the Treasury.
Chairman: Now that you have returned,
Lord Chancellor, as you were in the process of answering Mr Khabra
he might like to restate his question.
Q224 Mr Khabra: Lord Chancellor,
if legal aid is not available to the applicants there are implications
to the department and the Court Service. What would be the extra
cost?
Lord Falconer of Thoroton: The
way we did it was, five hours legal advice, and if it revealed
that there was not a proper basis for an appeal then legal aid
would not be extended, so what we were in effect doing was applying
the merits test there. Where there is a shortage of legal aid,
which there is, you have to prioritise where you spend your legal
aid and always one of the filters has been to spend it on cases
which have merit. As to the question, does that make some cases
last longer, I am sure that it does. I do not have a calculation
for that, but equally I suspect in some cases where you have a
lawyer that might last longer because various points are taken
which in fact fail at the end of the day, so I suspect it is swings
and roundabouts but I have no calculation on which I could base
that conclusion.
Q225 Mr Khabra: What sort of quality
of service will be available?
Lord Falconer of Thoroton: Legal
advice is available but not representation if, after ascertaining
what the factual basis of the application is, it is perceived
to be a case that does not have merit. The only service available
is advice but not representation unless there is merit in the
case.
Q226 Keith Vaz: Lord Chancellor,
you cannot be comfortable with coming back to the committee each
time and telling us that there is still a backlog.
Lord Falconer of Thoroton: No,
I am not, and that is why hopefully the points system will make
some difference to that, and the 100 extra judges I hope will
make a difference to that. We need more resources.
Q227 Keith Vaz: These 100 extra judges
that you talk about: the advert for the extra judges went out
at the end of last year. There should have been a sift by now.
At a meeting that your junior minister had with Members of Parliament
she told those members that the process had been stopped by you.
Lord Falconer of Thoroton: Yes.
Q228 Keith Vaz: Why did you stop
that process?
Lord Falconer of Thoroton: Because
the way the process had gone I could not be satisfied that a fair
selection was being done, by which I mean I was advised that there
were inconsistencies in the way that people were being assessed,
a number of people had put in referees, as is required, and the
referee reports had got separated from the applications that had
been made. In those circumstances, in order to have a proper process,
I thought the right thing to do was to stop the process that had
got some of the way down the road but was, for all the reasons
I took, I thought was flawed, and we had to start again.[5]
Q229 Keith Vaz: But this sounds chaotic.
You have come to the committee and you have said, "We are
going to get 100 extra judges"; you want to bring down the
backlog. You appointed Henry Hodge to deal with this issue. The
Government abolished the whole tier of the appeal system. There
is chaos over the appointments system. What is going to happen
now? Are you going to have to re-advertise?
Lord Falconer of Thoroton: I think
we will have to re-advertise.
Q230 Keith Vaz: So what is the timetable?
Lord Falconer of Thoroton: I do
not think the new judges will be there before September or October
at the earliest.
Q231 Keith Vaz: And will this be
done by your department?
Lord Falconer of Thoroton: It
will be done by my department, yes. It is deeply regrettable and
you are right to describe it as being unacceptable, but I am faced
with a situation where, if the process is plainly not identifying
who the right choice is, then I think we have got to stop and
start again.
Q232 Keith Vaz: I know you inherited
this problem.
Lord Falconer of Thoroton: In
terms of the actual problem—
Q233 Keith Vaz: The backlog?
Lord Falconer of Thoroton: Yes,
the backlog, not the—
Q234 Keith Vaz: Not the chaos of
the recent sift. Henry Hodge told the Home Affairs Committee,
as Mr Khabra has said, that he hopes that this is going to be
cleared by early spring 2007. You have not even put out the advert
for your 100 extra judges. You have to sift, you have to interview,
you have to assess, you are going to appoint them by September
of this year. The backlog is not going to be cleared by spring
2007, is it?
Lord Falconer of Thoroton: Mr
Justice Hodge is aware of what arrangements are in place. As I
say, it is a downward trend at the moment, not an upward trend.
The 100 new judges will obviously make a significant difference
to what happens. He is there on the front line. Spring of next
year presumably means round about March. That is six months of
100 extra judges. It does not seem to me to be impossible that
it could be done then. However, he is in a better position to
judge than I am because he is, as it were, the leader at the front
line of those appeals.
Q235 Keith Vaz: We are having him
before us very shortly on that point. I have one final point about
rights of appeal. If you look at the statistics on rights of appeal,
of those who went for an oral hearing in 2005 for visitors' appeals
52% were successful. When it comes to written hearings it is 31%;
these are Home Office figures. What are your views now about the
proposals of the Home Office to abolish the oral right of appeal?
Lord Falconer of Thoroton: It
is in the context as far as the Home Office is concerned of improving
decision-making at the first stage. Are oral hearings coming to
the right conclusions? Probably they are. If it is only a written
hearing, again, are they coming to the right conclusions? Again,
it is very difficult to judge. There is obviously a risk in abolishing
the oral hearings but is the risk justified by the number of appeals
that are wrongly going to be refused?
Q236 Keith Vaz: The success rate
has doubled. Your judges are doing their job as far as the applicants
are concerned.
Lord Falconer of Thoroton: The
judges are hearing the argument and are, I am sure, coming to
the right conclusion.
Q237 Chairman: They are assessing
the credibility also of the family circumstances which are otherwise
described in the written papers. When we did a report on this
some time ago it seemed apparent to us that the oral hearings
were picking up things in the entry clearance assessment because
the judge is in a position to assess the credibility of at least
the relatives of the applicant.
Lord Falconer of Thoroton: I cannot
gainsay the proposition that if you have an oral hearing you are
much more likely to penetrate, as it were, beneath the surface
of the facts in a way that a written document will not and therefore
it has got to be seen of the context of improving the original
decision-making.
Q238 Keith Vaz: Alex Allan, I am
just pondering what the Lord Chancellor has said about this sift
process. You, obviously, as the senior civil servant, have to
take responsibility for this process. What assurances can you
give this committee that when people apply in good faith for a
job in the DCA as a judge their applications will be treated with
respect, that the references will not be separated from the application
forms and that this whole process will not have to be run again?
This must be deeply disturbing for you.
Alex Allan: It is disturbing and
I regret it. As the Lord Chancellor said, the most important thing
was that once it had become clear that the process was not operating
in a satisfactory way the Lord Chancellor stopped it and started
it again, and I think that was the right decision in the circumstances.
Of course, I regret the circumstances that led to it.
Q239 Keith Vaz: But officials must
have been in charge of this process. Why did the officials not
stop it?
Alex Allan: They reported the
information to the Lord Chancellor.
3 Note by witness: The previous [X] censuses
were released after 100 years, though before that some censuses
were released after a shorter interval Back
4
Note by witness: Since 1981, text included in the census
form has provided the basis for the one hundred year guarantee.
The 1920 Census Act provides the Office for National Statistics
with the authority to hold census data and contains a statutory
bar which (via s.44 of the FOI Act) exempts the data from disclosure Back
5
Note by witness: The cancelled competition was to fill
ten vacancies for salaried Immigration Judges at AIT hearing centres
in Bradford and Stoke. Due to problems arising with the competition
process the Lord Chancellor could not be confident all candidates
had been treated equally. A fresh competition is currently being
advertised with appointments expected to be made by the end of
September 2006. There is a separate competition to recruit 210
fee-paid Immigration Judges to the Tribunal which is expected
to conclude in mid June for the London area, and mid September
for the regions. It is estimated that approximately half of the
appointments will be filled by Immigration Judges who currently
have fixed term contracts, with the remainder, (approximately
100) being completely fresh appointments. Back
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