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Lord Archer of Sandwell: My Lords, I have not previously intervened in your Lordships' debates on the Bill, principally because, whenever it was to be debated at its earlier stages, it chanced that I was out of the country on parliamentary business.

I would have hesitated to intervene at this late stage, both in the progress of the Bill and in today's business, had the matter not been drawn to my attention by my
 
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noble friend Lord Clinton-Davis and the Council of Immigration Judges. It is surprising that so startling a provision seems to have received so little attention. As my noble friend said, had Schedule 1(3)(1)(c) ended with "the terms of his appointment", we might have assumed that a member could be appointed on terms which included reference to the termination of his appointment, because that is what happens in many tribunals and happens already in this area. In a sense, it is the drafting which creates the problem by adding the words "which may include provision for dismissal". That is what has occasioned my noble friend's anxiety. There is a constitutional eccentricity in stating so unambiguously that the executive should have an unqualified right to provide for the dismissal of a member of the judiciary.

The Act of Settlement 1701 declared that judges' commissions should provide that they should hold office during good behaviour. Certainly in the case of the senior judiciary there was a provision about how that was to be decided by an address from both Houses of Parliament. As I understand it, all members of the judiciary since have held office so long as there was no complaint about their behaviour.

As my noble friend has pointed out, we now have a reference to "dismissal" taken from the vocabulary of employment law, not constitution law. A little earlier in our debate the noble Lord, Lord Newton of Braintree, made reference more than once to the Council on Tribunals, of which he is so distinguished a chairman, and to the fact that I was privileged to chair that council in the past. I wonder whether the Council on Tribunals has been consulted on this provision.

I am throwing the question at my noble friend the Minister without having had an opportunity to warn him and of course I shall understand if he says he will let me know at a later stage. But it is a surprising provision that one would have thought might have occasioned some comment from those quarters.

It has certainly led to a sense of shock among the existing adjudicators. Of course they already hold and vacate office in accordance with the terms of their appointment, including the duration of their office. But now we are told in effect that they are to be treated as employees.

Of course I accept my noble and learned friend the Lord Chancellor's assurance that he has no intention to change the practice, but at present there is no certainty as to what the future may hold or who will decide on appointments and terminations. If it is intended that the present practice shall continue and that members shall continue to hold office during good behaviour, we are faced with the question that has just been asked by my noble friend Lord Clinton-Davis: why change the vocabulary?

The anxiety of the members of the tribunal is hardly alleviated by the provision that is the subject of Amendment No. 57D that members of the tribunal shall supervise others. Judges may be appealed, but if they are
 
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to be supervised it is startling to find that they may be supervised by their peers—I presume specific members among their peers who have been delegated for that purpose.

Of course a collegiate atmosphere exists among adjudicators at the present time. They can discuss, but there is now a danger that this segment of the judiciary is beginning to feel its independence threatened. They find already, as the noble Countess, Lady Mar, pointed out, that targets are prescribed for their workload as though they worked on a conveyor belt; they feel that they have Big Brother looking over their shoulder; and they find that production targets are to be paramount even at the cost of the quality of their work. This has become a serious matter for some of them.

We are not debating a word in a statute but a philosophy of judicial practice. Of course judges should be industrious like everyone else and of course immigration and asylum cases should be heard quickly. But if that entails appointing more tribunal members, that may be a price that we have to pay. In the long term it will be a cheaper price than destroying the independence and the confidence of that section of the judiciary.

Lord Mackay of Clashfern: My Lords, I support the amendment in the names of the noble Lord, Lord Clinton-Davis, and the noble and learned Lord, Lord Archer of Sandwell. Out of consideration for the noble Lords expecting to take part in the debate on the Housing Bill I shall leave it at that.

Lord Goodhart: My Lords, the two amendments raise serious and substantial issues. We should be most grateful to the noble Lord, Lord Clinton-Davis, and the noble and learned Lord, Lord Archer of Sandwell, for raising them. I agree that there is not a case for a lengthy speech. The noble Lord, Lord Clinton-Davis, was right to regard the amendments as unsuitable for dividing the House over, but I hope that the Government will take on board the points made and of their own motion will decide to make the necessary amendments to clear up these matters.

Lord Kingsland: My Lords, I entirely share the views expressed by the noble Lord, Lord Goodhart.

Lord Filkin: My Lords, let me more in hope than expectation seek to attempt a full response to try to resolve the matter tonight rather than us having to return to it later.

Regarding Amendment No. 56A, we are aware of concerns that have been raised by the reference to "dismissal" in paragraph 3. The provision is there simply to ensure that the terms of appointment for a member of the tribunal can include provision for removal from office. It is already the current practice for adjudicators and members of the Immigration Appeal Tribunal that their terms of appointment include provision for removal.
 
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Why so? Why do it now? Although it may stretch credulity, parliamentary counsel felt that it would be beneficial to place the issue beyond doubt by using a suitable parliamentary opportunity to do so. In other words, it was felt desirable to give legislative clarity and to avoid any uncertainty that judges in appropriate circumstances could be removed from office.

The process for investigating any complaint against a judge is one that we know well and, as your Lordships know, under the disciplinary procedures no removal can take place without the concurrence of the Lord Chief Justice in England and Wales. The expectation of continuing to hold office during good behaviour is our custom and practice.

With regard to dismissal versus removal from office, without wanting to excite too much optimism I shall reflect on the matter to see whether there is any benefit in using different terminology.

With regard to Amendment No. 57D, we are also aware of concerns raised about the power to make rules providing for the supervision of tribunal members in paragraph 20 of Schedule 2. The reference to supervision reflects our intention to develop an organisational structure that will provide judges with better access to support and guidance.

The judiciary is a substantial body. There will be a judicial hierarchy. While individual judges have to make their own judgments on the facts before them without interference from anyone else, there is benefit in their being in a much more collegiate environment, which will be one of the aims of the tribunal.

We believe strongly that experienced judges working with and passing on their expertise to less experienced judges will help to improve the quality of decision making in the tribunal. We propose that immigration judges should be supported by a tier of supervisory judges who will be available to offer advice and guidance, appraise performance, identify training needs and other similar responsibilities that do not impinge on judicial independence. I can say categorically that draft determinations will not be subject to amendment by senior judiciary prior to promulgation.

As to the concerns that the briefing to the IAA judiciary suggested that the terms of appointment could be amended to require compliance with procedure rules or practice directions, officials were considering whether the terms of appointment should include compliance with procedure rules and practice directions. It was floated with the intention of ensuring quality, consistency and accuracy in decision making. However, that approach is no longer considered necessary.

I hope that I have gone a long way towards setting at rest the minds of my noble friend Lord Clinton-Davis and my noble and learned friend Lord Archer of Sandwell. I invite them to consider withdrawing their amendment.


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