Motion to Take Note
My Lords, the noble Lord, Lord Howarth of Newport, will be contributing to this debate remotely.
My Lords, I am very pleased that we have an opportunity to discuss this report. It was published some time—a full year—ago, meaning that it has been a long wait, but perhaps that gives us an opportunity to hear to what extent the Government have taken on board the recommendations that we made.
The remit of the committee’s inquiry was to explore the impact of the pandemic and the Government’s response in relation to the operation of the courts. We were particularly interested in how the experience of the pandemic might influence the workings of the justice system in the future. I think it is fair to say that some of what we found will be very helpful going forward in terms of both what would work and what did not work.
No one can doubt the scale of the challenges that the pandemic brought us across all aspects of our lives. The justice system was no exception. In the report, we acknowledge the work that was done by those who have responsibility for our Courts & Tribunals Service. We said that there was
“a monumental effort by all”—
at least, most of the people—
“working in courts and tribunals to maintain a functioning system despite the COVID-19 pandemic.”
That was no mean ambition, and absolutely essential to our democracy.
However, as was patently clear from all the evidence we received, the justice system in England and Wales was under very significant strain even before the pandemic hit. It is important that we keep that at the back of our minds throughout this debate. I draw particular attention to paragraph 14 of our report, which shows clearly the impact of the Government’s funding cuts on Her Majesty’s Courts & Tribunals Service. I must emphasise how significant and damaging these cuts were. The scale of them is quite astounding. In 2019-20, Ministry of Justice funding for the Courts & Tribunals Service was a full 21% lower in real terms than it was in 2010-11. Between 2010 and 2019, a full half of all magistrates’ courts and more than a third of county courts were closed. The number of HMCTS staff went down as well.
In addition to this, there was a significant cut in legal aid funding. By 2019-20, legal aid funding was 37% less in real terms than it had been in 2010-11. That led us to the following conclusion—it is in paragraph 20, for those who are interested:
“The reduction in Government funding in the decade preceding the pandemic left courts vulnerable going into the COVID-19 crisis.”
I am afraid that that was the starting point, and it exacerbated the difficulties that the courts were going to find.
On top of all that, we have the problem of digital transformation. In 2014, the Ministry of Justice acknowledged the very real problems in the digital infrastructure of the whole system and announced a welcome package of measures to address it—in particular a package that would offer new IT support for remote hearings. The National Audit Office has reported on the problems of that programme, and it is not a happy story. We have seen repeated delays and significant problems that made it even more difficult for the justice system to adapt when Covid hit.
Finally, as an example of the lack of preparedness, we were told that the Government’s simulation of a flu pandemic in 2016, Exercise Cygnus, did not even consider what the impact might be on courts and tribunals. It was an obvious omission from an exercise that should have been complete.
That was the backdrop. That was the situation that we had pre the pandemic and, clearly, it had been made worse by the Government’s decisions. These cuts and this confusion led to an enormous backlog of cases—we will mention that later, because there are still some very worrying signs about the backlog that exists today.
When Covid hit us all, as it did so severely, change had to come quickly for everyone involved in the justice system: for victims, for defendants, for legal professionals, for the judiciary and for the support staff in courts—who very often do not get the credit they deserve for helping to keep the show in the road. On the ability of different parts of the justice system to adapt, there was a very mixed picture as to whether there was a satisfactory outcome. The immediate response of the Government—the Lord Chancellor working with the Lord Chief Justice—was to take some very significant steps. Some courts were closed; jury trials were suspended; there was a focus on priority cases, though there will always be a definitional problem there—who thinks a case is not a priority if they are involved?—and we saw the increasing use of technology to support remote hearings. There was, to give the Government credit, increased spending to facilitate the changes in technology for remote hearings. In addition, temporary courtrooms—the Nightingale courts—were opened to try to provide extra facilities and accommodation, especially when social distancing was necessary. That proved to be a very steep learning curve for everyone involved.
I shall not go into it in detail, but paragraph 35 of the committee’s report sets out the sequence of lots of the changes that were made over that period, responding to some of the pressures that existed. The most obvious of the significant changes was the move to remote hearings. This was not easy in many respects, but it was not easy primarily because of the antiquated nature of the IT systems that many in the courts system were using.
However, change there was. People responded quickly, and a new norm developed where there was a fivefold increase in the use of video and audio and, very soon, four out of every five cases were being heard remotely. Other things happened. HMCTS provided the criminal courts with a cloud-based video platform. The Lord Chancellor and the Lord Chief Justice both told us that they were impressed by the way in which the courts had responded.
It is true that, for many, this system did work. However, there was anything but a uniform experience. In the senior and appellate courts, the evidence that we received showed that remote hearings generally worked well. That was no surprise, because the judiciary and the practitioners at that level were—and, indeed, are—very well resourced, and the nature of much of the case work was more suitable for remote hearings. Because of this, the Lord Chief Justice was able to tell us that, in the High Court, 80% of normal work continued. The Supreme Court told us that no case had been adjourned because the court was unable to provide a hearing. Those figures and that information should give us some reassurance.
However, that was not the case elsewhere. There was certainly a more mixed picture in the lower courts, where the majority of cases are held and where many vulnerable litigants had a very different, and a very difficult, experience. I mentioned the family courts—and other noble Lords may wish to say more on this—where there was a rapid change to video and audio hearings. That had a very mixed set of results, with many people feeling very hard done by and that justice had not served them well. The Nuffield Family Justice Observatory, which is an independent research organisation, said that a majority of parents and families had concerns about the way in which their cases had been dealt with and that nearly half of those asked said that they had not understood what was happening during the online hearing. That is a very worrying picture, and one which gives real cause for concern. The Government need to think ahead of what should be happening in the future to make sure that that kind of experience does not happen on an ongoing basis.
The committee heard from one solicitor who very clearly described the difficulties which a client had experienced with just one mobile phone and no internet connection while trying to deal with both the court and her solicitor remotely. That is not the case in every situation, but it provides a contrast with the commercial cases, where all the resources and skills are available to everyone involved.
I want to mention one aspect of remote hearings which should not surprise us because it is very logical. Some remote hearings were very useful in emphasising the potential benefits of distanced participation. I think in particular of cases of domestic violence, where the victim could be heard remotely and not have to be in danger of being intimidated by the presence of the accused, or his family, in a court room. These are all factors which must be taken into account as we go forward, but, overall, it is clear that the vulnerable individuals involved in the courts system were often made more vulnerable by remote hearings. As I said, this is something to which the Government will need to give more attention in the future.
I also want to mention video remand hearings. The Lord Chancellor described them as a “singular success story”, and there are obvious advantages if a defendant does not have to be brought from remand to a court and escorted while they wait for a hearing that might come after a long wait and then last a matter of minutes. That is a resource-intensive event, and it is clear that there are very significant benefits in remote video hearings. However, we were also told that in October 2020 the National Police Chiefs’ Council confirmed that police forces would stop using virtual remand hearings due to cost and service pressures. The Lord Chancellor seemed frustrated by that, and I totally understand why. There is obviously real scope for benefit to everybody—except perhaps the prisoner who wants time out of prison—but it is not really the answer to how we could deal efficiently with cases of that kind, and I hope that there will be a report of some progress on that, because it is a very clear way forward.
I have outlined some of the main issues that are involved, and I know that other colleagues will pick up other aspects and give more detail on some—for example, the backlog. I hope that the Minister will clarify exactly where we are on the backlog of cases. I saw recently that the Nightingale court in Bolton was being closed, along with others, and I also saw that Liverpool and Chester Crown Courts had reported an ever-increasing build-up of cases, with the number of cases at the end of March 51% higher than at this time last year. I also noted that the National Audit Office had said recently, and very worryingly, that the Courts & Tribunals Service and the Ministry of Justice were
“not yet working towards shared … objectives”.
The National Audit Office described the Ministry of Justice’s plans to tackle the backlog as “ambitious”—and I think those of us who have seen “Yes Minister” know what that means. So there are some very real problems there to be answered.
I will ask the Minister to think about one other point. It is the question of the data that is available on all these problems. We heard very compelling evidence from Dr Natalie Byrom on the need to improve information gathering—I think that she has been in touch with the Ministry of Justice—but we need some detail about what is going to be done on that to make sure that we are operating on proper information.
So I hope that the Minister will acknowledge that the experience and the response to the challenges of Covid have some aspects that deserve praise, but I hope he will also acknowledge that the system was under pressure and vulnerable because of government cuts, and that the problems of the IT system have not gone away. I think we could do with an update following the National Audit Office’s criticisms. We really are worried about that backlog. But my main concern is the fact that vulnerable people are not well served if we do not have the proper infrastructure to give them the support that they need. Just recently, the Law Society has echoed our concerns about those who do not have access to all the technology and support that they need to be effective in remote hearings. We cannot have one size fits all when many people will lose out. So we need a sense of urgency to cope with the changes that are necessary, because we need urgent investment to give us the kind of justice system that this country deserves and that we can all trust.
My Lords, I was a late arrival to this inquiry by the Constitution Committee. I did not become a member until all the evidence had already been heard and the committee was considering its report. I was able to contribute a little to the discussion, having had some experience of court procedure and some awareness of the problems the pandemic had created for all court users, but the bulk of the work had been done by others. That enables me to say, without the risk of too much self-congratulation, that this is an excellent report. It has been brought to life very well by our chair, the noble Baroness, Lady Taylor of Bolton. It owes much to her skill and leadership, and to the work of the staff of the committee and to the many witnesses who gave evidence.
There is no doubt that the suddenness of the lockdown created severe problems. Much of this was because the justice system already faced significant challenges due to underfunding, as the noble Baroness pointed out. I look back to the cuts we faced in Scotland as long ago as the 1990s, when I was the Lord Justice General. They started with a request, shortly after I entered office, that we should cut our expenditure for that year by 2%. That was an incentive to cut out what was wasteful and we were able to do as we were asked, but it became increasingly difficult to maintain standards as the same request to cut expenditure was made of us year after year. We were being made to do more with less. What was the case for the system in Scotland was also such in England and Wales.
So there is a warning here, which the noble Baroness has issued and I endorse, and that experience needs to be taken very seriously. The fact is that underfunded systems are much less resilient to the kind of shock that was caused by the pandemic. But there is a bright side to this: like all shocks to the system, the pandemic was an impetus for the development and application of new ideas and the acceleration of improvements, some of which were already under way. The aim of this report was to explore what should and could be done as we seek to learn from that experience. The committee looked at the impact of the pandemic across the justice system and it made many recommendations.
The report was published on 30 March last year. The Government’s response, by the then Lord Chancellor, Robert Buckland QC, was issued on 28 May 2021. It was as good a response as we could have hoped for, as it covered the issues that we raised in commendable detail. However, as so often happens with these debates on reports, time has slipped by. Here we are, debating it some nine months after we received the response. This means that some of the information that was given then needs to be updated. I am sure the Minister will want to do that and I very much look forward to what he has to say.
I will concentrate on just a few points—first, managing the backlog. It was inevitable that the business of the courts would be interrupted by the lockdown and especially by the impact of the need for social distancing in the conduct of criminal trials. This impacted the whole handling of business in courts, which are usually attended by many people in close proximity to each other. This meant even more delays in cases coming to trial, even more increases in the time spent on remand, with all that that entails for the detainee, for whom remand is often a miserable existence, and risks to the quality of evidence.
The Government said in their response last May that, given that at that time the courts were still operating within these constraints, their indicators on current levels of timeliness were positive. That was the message we were given then. I conducted a search of the latest edition of Criminal Court Statistics Quarterly, from July to September 2021, which was published in January this year. It shows there was a continuing recovery in some areas, including a timeliness decrease in the magistrates’ courts of 5%.
The position in the Crown Court seems very different. The median age of outstanding cases had increased by 50% on the previous year. Around 23% of cases had been outstanding for a year on more, up from 15% in the third quarter of 2020. The statistics for the last quarter of 2021 are not yet on the website, but it would be helpful if the Minister could bring us up to date. I hope there has been some improvement and that priority has been given to custodial cases to reduce time spent on remand as far as possible.
Secondly, there is the use of remote hearings. A study of the HMCTS website shows that much has been achieved and full advantage has been taken of the available technology. As far as I can see, there is a lot of online guidance now on how to manage the various systems. I also welcome the guidance the Lord Chief Justice recently gave about how to conduct remote attendance by advocates in the Crown Court. This will help to maintain consistency in this area of practice.
But what is being done to help those who do not have access to online guidance—the disadvantaged elderly, the disabled, or those who are less able to understand what is on offer? We noted in our report, at paragraphs 279 to 280, that the then current plans to collect data on the protected characteristics of court users lacked “clear deadlines or targets”. Is that still the case? Are the data, always so crucial to proper planning, being kept up to date?
Then there is the need for more accommodation to reduce the backlog. It is good to see that the number of Nightingale courts is to be expanded by making available 30 more such places spread around the country. Some are being closed, but more are being opened. Can something be said about whether these facilities are enough to cope with the demand and why, as we are being told, they are to be available only until March 2023? Can we be assured that they will be available after that date if the backlog has still not been cleared?
Lastly, there is the question of remote jury trials. The provisions in Part 13 of the Police, Crime, Sentencing and Courts Bill—to enable criminal jury trials to take place if the judiciary thinks it acceptable—are controversial, but the report shows that such trials have been taking place in Scotland. It was impossible to accommodate juries in the accommodation that was available in the courtrooms there because of the need for social distancing. Of course, juries in Scotland are 15, not just 12.
Two possible solutions to the problem were rejected, as I believe they were in England and Wales. The first was to dispense with juries altogether during the period of emergency; the other was to reduce their size. It was decided that the jury should sit in a remote location, usually a cinema, while all the other participants, suitably spaced, were in the courtroom. It was decided that the judge should be there in the courtroom and not with the jury. Some people, particularly in this jurisdiction, have objected to this on the ground that the judge and jury should never be separated, but even a judge cannot be in two places at once. The most important thing is for the judge to be in the courtroom, where the witnesses are and where the trial is being conducted by the advocates.
I have been assured by the Lord Justice Clerk, Lady Dorrian, that the Scottish system has been working well, to the satisfaction of all participants. There is no question of the remote trials that the Bill is providing being used other than in exceptional circumstances, but the experience in Scotland is of some assistance. Are the Government continuing to pilot remote trials, as the report recommended in paragraph 220? If so, what conclusions are being drawn? In particular, is attention being paid to the issue that caused some concern of where the judge should sit under the new system, if there is a need to preserve social distancing? As I said, it seemed to work well in Scotland, with the jury sitting remotely from the judge and the judge being in the place where he or she most needed to be.
I am sure the Minister will agree that bringing the courts system under scrutiny, as the committee sought to do in this inquiry, has been beneficial. Of course, there remains the question of whether the system will be given the resources it needs to achieve the level of performance we would all like to see and to give it the resilience that it requires, but that, I suspect, is a matter for another day.
My Lords, it is a privilege to follow the noble and learned Lord, Lord Hope, and our past, distinguished chair, the noble Baroness, Lady Taylor. I look forward to all contributions in this debate, including from our new chair, the noble Baroness, Lady Drake, who has followed so ably the noble Baroness, Lady Taylor, in her task.
I do not want to repeat what is in the report although, on re-reading it after a little time, I have to say that it seems to make some cogent points. It has been excellently summarised by the noble Baroness, Lady Taylor. The committee was absolutely right to consider that the effect of Covid on the courts was, and is, a constitutional issue. Why is this so? In civil cases, the ability to bring a case to court within a reasonable time is a critical part of a functioning legal system and thus of the rule of law. In jurisdictions where long delays are endemic, people avoid paying debts, often driving creditors into penury, and can by delays render justice an almost unattainable goal. In criminal law, delays are even more serious, if that is possible—for defendants, some of whom may be in custody, for witnesses and, generally, for the ability to have a fair trial.
Covid took, or seemed to take, the world very much by surprise. It is not, of course, over. Another variant—or even another virus altogether—should, I hope, find our courts system much better prepared. The Minister has already been asked a number of questions and, no doubt, in the rest of the debate will be asked many more. Of course, some are posed by the report itself. Although the problems with the criminal justice system long predate his appointment as a Minister, I know that he will answer questions in his usual careful and informative manner. Can he tell the Grand Committee what preparations have been made in the event of a further outbreak of some sort?
As the committee has pointed out and has been drawn to the attention of the Grand Committee, there was already a substantial backlog. I am sure that the Minister will tell us how the courts system is now coping. We were very critical of the backlog and the response to the pandemic, but I acknowledge, as have previous speakers, the considerable efforts that were made by HMCTS to adapt. What, though, is now the position? What is the average wait in a rape case between charge and trial, or in a fraud case?
The use, albeit limited, of Nightingale courts and remote jurors—even in cinemas, as we heard from the noble and learned Lord, Lord Hope—were all attempts to mitigate the backlog but there was no alteration to the fundamental right to trial by jury, a jury of 12 members. The infrastructure and cost of jury trials is considerable. The complications involved in having them in a pandemic cannot be overestimated. We welcomed the greater use of hearings online, which was happening pre the pandemic anyway. We also recommended piloting remote jury trials as having the potential to reduce the backlog.
We considered the question of altering the norm of having juries of 12. There was the possibility that they might be reduced to six or seven, or that defendants with legal representation should be allowed to choose a trial by judge or a panel of judges without a jury. A suggestion was made by the noble and learned Baroness, Lady Hale, of two lay people and a judge instead of a jury, while the noble and learned Lord, Lord Phillips, advocated judge-only trials in response to the pandemic, but only when chosen by the defendant in question. There was also the possibility, ventilated by the Lord Chief Justice, of a judge and two magistrates, which would be much easier to manage than any jury. Labour’s shadow Lord Chancellor suggested having perhaps juries of seven.
There has been precedent for using other than traditional jury trials: in the famous Diplock courts, of course, and during the Second World War. We cover all this at paragraphs 221 to 225 of our report. However, I must point out that, notwithstanding canvassing these options, the committee came to the conclusion that any change to the jury system should take place only after careful consideration by Parliament, with full parliamentary debate preceded by evidence.
Personally—I do not speak for the committee—I think the time has come to think carefully about the future of jury trials. Other countries with mature legal systems do not find them necessary. More than 90% of our criminal cases are, in fact, heard by district judges or trained magistrates assisted by a legally qualified clerk, but for the most serious offences we leave the matter to 12 randomly selected members of the public.
There has inevitably been very little research on what juries think about in how they approach cases, the exception being that of Professor Cheryl Thomas QC. I am happy to assume that the vast majority of jurors approach their task conscientiously and will often come to the right result, or at least a fair result, but we do not know why they convict or acquit. If a judge were to decide the matter, perhaps assisted by magistrates, lay persons or assessors, they would have to give reasons for their decision, which would be capable of analysis on appeal. Appeals in jury cases have to rely on a misdirection by the judge, the admission of some new evidence not available at the trial or a perverse verdict. Incidentally, reasons for a decision are much more compatible with the European Court of Human Rights’ approach, in particular to Article 6.
Let us not forget that all personal injury cases were heard by jurors until relatively recently. That is the biggest volume of civil cases. Until 2013, defamation cases were all tried by juries too. I have not heard it much suggested that justice in these cases has been compromised by the fact that they are decided by judges alone.
Abolishing or reducing the right to trial by jury should certainly not be done without careful consideration by Parliament. Perhaps it could be done incrementally. I suggest that fraud cases would be a good place to start. In 1986, Lord Roskill, a former Lord of Appeal in Ordinary, and his committee made a recommendation along these lines following a number of failed prosecutions in fraud cases. His suggestions were not adopted by the Government, although various other recommendations he made for improvements in criminal procedure were.
We are unfortunately living in a very fraudulent age. The estimated scale of fraud relating to the various financial consequences of Covid grants is quite extraordinary. In the last two weeks the Government introduced the long-awaited economic crime Bill, which recently went through your Lordships’ House. Apparently, economic crime Bill 2 is shortly to be brought to Parliament, with a number of other provisions contained in it. Unfortunately, there is fraud in almost every aspect of society. The Government have set up a kleptocracy unit, while the fallout from sanctions is likely to give rise to a great deal of fraud prosecutions.
It is a feature of fraud cases that the prosecution has to simplify a case to make it digestible for a jury, but it is in the defence’s interest to obfuscate. The question then comes for a jury at the conclusion of a case: “Can you really be sure, in view of this immense complication, of the guilt of the defendant, having regard to all this uncertainty and this huge accumulation of documents?”
Juries, however conscientious they are, are often simply not well equipped to decide these cases. Nor is it—I emphasise this—consistent with the rule of law to wait five or 10 years for a case to come to trial.
I hope that Covid will have the effect of encouraging better investment in our courts system, in the future of the legal profession in the criminal sphere and in the imaginative and creative use of courts, but can it also be a catalyst for thinking seriously about the future of jury trial? The National Crime Agency, the Serious Fraud Office and other agencies are very short of funds and resources, hampering their ability to prosecute cases effectively. The need for a timely and fair prosecution in many of these cases is clear. Covid has exposed the general vulnerability of the criminal justice system. I can only hope that, following the experience of Covid, there will be a general reassessment of what is in the interests of justice and of a better-functioning criminal justice system.
My Lords, the Constitution Committee applauded the “monumental effort” of those working in the courts to maintain a functioning system during the pandemic, but equally recognised that those efforts could not obscure the scale of the challenge faced. As others have said, the courts system was already struggling with major pre-existing weaknesses so, when Covid hit, rendering courts reliant on remote technologies, those vulnerabilities were exposed. The urgent need for major investment was laid bare.
The 21% decline in court funding over the preceding decade and the failure to deliver a modernisation programme exposed the weakened resilience of the system. Remote proceedings have the potential to enhance access to justice by increasing the number of hearings that can take place, but the delay in the modernisation programme meant that new case-management systems had not been rolled out, common IT systems had not been implemented, the digitisation of court forms was delayed and court data was stored on a range of legacy systems. The courts were ill prepared for the scale of the shift to remote hearings.
That sudden shift was also uneven in its impact. Senior courts and those dealing with commercial cases adapted relatively well. The lower courts, particularly those dealing with criminal and family cases, had a much more difficult time. The evidence revealed the practical challenges facing ordinary people in virtual hearings, including—among other things—limited broadband access, phones or iPads shared between users in a household, no private space, dependency on pay-as-you-go phones and expensive data packages, sensory impairments and limited digital literacy.
The evidence we heard indicated that remote hearings can make it difficult for lawyers and their clients to communicate, frustrate users if they cannot see or understand what is going on and undermine the ability of litigants to engage. On the other hand, there was evidence that court users can benefit from remote proceedings and the speedier conclusion of cases. As has been mentioned, some women who would be frightened of giving evidence in a court where their abuser was also present may prefer the security of a remote hearing. I learned recently of a case of a young mother whose baby was facing end of life. She wanted to be in court when she gave evidence as she wanted people to know that she had done everything she could to protect her child, but wanted to participate remotely on other days so that she did not have to spend time travelling away from the hospital.
It is important to ensure that courts function in an innovative way to meet the demand on the system and deliver speedy and effective justice. However, as a solicitor specialising in children’s law who gave evidence to the Committee commented:
“We need to ensure that there is consultation on good practice for remote hearings to allow the courts that remain open, to hear those cases which for a number of very good reasons may need to be heard in person.”
I look to the Minister on the point that people are looking for assurances that such essential consultation will take place, and that efficiency will not by default trump access to justice.
The Lord Chief Justice described the rapid adoption of new technology during the pandemic as
“the biggest pilot project that the justice system has ever seen”
and an opportunity to
“take the best of this new way of working”.
However, the information to support that opportunity was
“just not available”.
As the Government have acknowledged, the long-standing absence of quality data in the court systems meant that important questions about access and the efficiency of the courts remained partially unanswered. They include questions about the effects of digital technology on non-professional court users and where access to justice is most at risk when remote hearings are deployed. In 2019, the Legal Education Foundation published its report by Dr Byrom, Digital Justice: HMCTS Data Strategy and Delivering Access to Justice. The majority of its recommendations were accepted by the Government. What recent action has been taken to build excellent data systems and what is the timetable for achieving that objective?
During the pandemic, pre-existing backlogs of cases increased to record levels. This month, in his message, “A View from the President’s Chambers”, the President of the Family Division of the High Court, Sir Andrew McFarlane, commented that
“work in the Family Court is at an all-time high”;
that agencies and law firms had to ration their use of resources as demand in some areas has exceeded the capacity to deliver; and that
“there is unacceptable delay in listing cases.”
That resonated with recent evidence taken in a study by the APPG on Kinship Care that some local authorities are now having to prioritise the cases for which they bring childcare proceedings because they know that the courts do not have the capacity to handle all their potential cases, and that those that do are taking longer to complete. Given such rationing in terms of unmet need, the “family court backlog” must be an understatement.
Sir Andrew’s message had the ring of a cri de cœur. The family courts deal with vulnerable children. As the public advisory group of the Family Justice Board observed:
“For children who remain stuck in the middle of the court system, the detriment to them is immeasurable.”
The life of the child goes on while they are stuck, and they may have further negative experiences. Sir Andrew observed on their impacts:
“Backlog and delay in the Family Court are not … static … they have the potential to feed on themselves and grow the longer cases are left without a final resolution.”
The number of children in care is rising. A key driver is children staying in care for longer and not leaving. Children’s social care is inadequately funded and in need of radical reform. Domestic abuse is increasing. A report by the Competition and Markets Authority published just two weeks ago found that some large private providers of fostering services and children’s homes were generating excessive profits. It added:
“The UK has sleepwalked into a dysfunctional children’s social care market … some children are not getting the right care from their placement. Some children are also being placed too far away from where they previously lived or in placements that require them to be separated from their siblings.”
That overstrained care system is now having to operate alongside a family justice system that is far from robust.
I have another example: kinship carers are grandparents, aunts, uncles, siblings and family friends who voluntarily take on the care of nearly 200,000 vulnerable children who might otherwise be taken into looked-after care. They often take on the children at very short notice following a proverbial knock on the door by a police officer or social worker. Largely unsupported financially or legally, they produce better outcomes for children and save the state millions in costs. I have heard so many of their stories, and many are heroic. But aspects of the justice system reveal a bias against them. During public law care proceedings, kinship carers are often not joined as parties to proceedings, so they can struggle to follow what is happening and understand their options. Many kinship care cases are private law cases, and legal advice and support is even more limited. Carers struggle to get legal aid. They struggle to get access to guidance and advice so that they can make the right court application for the protection of the children, and there appears now to be even less time in the court diary for private law cases.
The backlog of cases is exacerbating that bias to the detriment of children’s interests. Sir Andrew observed that there was
“no single, let alone simple”
answer to the question,
“what is to be done?”,
which is evidently true. But it is sometimes said that we judge the quality of a society by how it treats its old people and its vulnerable children. We have a way to go before our vulnerable children get the access to justice and the care that they deserve.
There are many on the committee and who are following this debate who will want to know what the Government’s commitment is to increasing resources, pushing ahead with the modernisation programme and building in innovation to the court system so that we do not face the problems that were reported in this report in future. Finally, I acknowledge my noble friend Lady Taylor’s excellent chairing of the Constitution Committee in bringing this informed report to the House.
My Lords, I congratulate and thank my noble friend Lady Taylor for her fine chairmanship of the committee and for the way she introduced our report. The committee notes that Covid hit a justice system that was already in trouble. We also noted that the courts rallied impressively to meet the huge challenge of Covid by adapting at speed as best they could to provide remote hearings, operate in improvised premises and keep court users safe.
Access to justice was gravely compromised before the Covid crisis made it worse. The Treasury had been gunning for legal aid since the 1990s, and criminal legal aid fees for solicitors, I understand, had not been increased since 1998. An egregious example of the injustices resulting from Treasury niggardliness was what became known as the “innocence tax”, whereby a defendant refused legal aid after means testing was not reimbursed their legal costs if acquitted. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 was, however, the biggest assault on access to justice, hitting especially those least able to assert their rights. LASPO largely removed from the scope of legal aid family, employment, welfare benefits, housing, debt, clinical negligence and immigration law.
The Government claimed that austerity necessitated a reduction of legal aid spending by £350 million—an indiscernible fraction of public expenditure but a significant proportion of the legal aid budget. In the event, the cut to legal aid spending between 2010-11 and 2018-19 was worse than that: £1 billion, or 36%. Political hostility to legal aid was part of a wider narrative about scroungers, shirkers and the undeserving poor. The Ministry of Justice said that its aim was to target legal aid on those who needed it most. What actually happened was that those left without essential advice and representation included disabled people, people with impaired mental capacity, carers, victims of sexual exploitation, trafficking and slavery, victims of domestic abuse, people who were homeless or living in substandard accommodation, people in detention and people fleeing persecution.
With this drastic reduction in legal aid, by 2019, more than half of law centres and not-for-profit legal advice services had closed. I declare with pride an interest as a patron of Norfolk Community Law Service. It has defiantly kept going, raising enough funding to provide advice and support to many people—though only a fraction of those who need it.
The MoJ said that another of its intentions in LASPO was to deliver better value for money for the taxpayer, yet it removed funding for early legal advice, which is crucial to prevent problems escalating. In housing law, legal aid for advice on disrepair issues became unavailable until the situation had become serious enough for people’s health to suffer. In family law, legal aid became unavailable until a dispute about a child had escalated to a complex legal battle with even more damaging effects on all concerned. The long-term cost in mental health can only be great. The health—or otherwise—of the justice system is reflected in the health of society. Cuts to the MoJ budget of 27% in 10 years were a false economy, with MoJ costs exported and multiplied in the health service, social security, education, the police and local government.
Between 2010 and 2019, 295 court facilities—a third of the courts estate—were closed, including more than half of magistrates’ courts. A huge backlog of maintenance also developed. When Covid came, posters in courts instructed people to wash their hands but barristers reported that there were no soap or towels. Decent, well-maintained court buildings were once a mark of respect for the law and society. In 2018-19, the Government cut 15,100 court sitting days; they then reinstated just 4,700. At the end of 2019, before the pandemic hit, the backlog in the Crown Court was 37,500 cases.
Plenty of money was found for digitisation, however. In 2016, the Government proclaimed that they would spend £1 billion
“to modernise and upgrade our justice system so that it works even better for everyone.”
Not a lot then happened. There was no public consultation on the principles that should apply in regard to the rule of law and access to justice in the digital realm, although there was the obvious risk that significant numbers of people who were not computer literate would be seriously disadvantaged. This was found to be so in the pandemic. Progress was dilatory in equipping the courts with new technology and training court users. In 2020, when, with Covid, the courts suddenly needed to hold virtual hearings, they were unprepared to do so.
There has developed an unhappy lack of comity between senior Conservatives and the judiciary. As Lord Chancellor, Liz Truss appeared unwilling to defend judges when the Daily Mail attacked them as “enemies of the people”. In January 2020, Suella Braverman launched a remarkable attack in Conservative Home:
“The political has been captured by the legal. Decisions of an executive, legislative and democratic nature have been assumed by our courts … if a small number of unelected, unaccountable judges continue to determine wider public policy, putting them at odds with elected decision-makers, our democracy cannot be said to be representative.”
Shortly afterwards, the Prime Minister appointed her Attorney-General.
Smarting at the decisions of the Supreme Court in the two Miller cases and on the legality of the Prorogation of Parliament, the Government have been meditating on how to clip the wings of the judiciary. Access to justice will not be improved by further limitations on the right of citizens to seek redress by way of judicial review for the improper use of powers by government and its agencies.
What is the Government’s vision for the justice system? The backlog in the Crown Courts is now around 60,000 cases and it is taking up to five years for cases to come to court. In his letter to Peers of 15 March, Dominic Raab expressed some appropriate aspirations, but not since Michael Gove was Lord Chancellor have we heard a fully considered statement of principle or strategy. From time to time, in the face of disaster, small mitigations of LASPO and small additional doses of money have been forthcoming. I recognise that there was a more substantial development last week in the Government’s response to the Bellamy review of criminal legal aid. In the view of the Criminal Bar Association, the additional funding will not be enough to prevent a continuing haemorrhage of criminal advocates. I hope it is wrong.
The MoJ’s post-implementation review of LASPO in 2019 was belated and timid, failing to address the issues of the scope of civil legal aid, means tests, bureaucracy and the supply of services. Its so-called action plan amounted to little more than promises of further research and consultation, and some narrow pilot schemes. The recently approved order for a two-year pilot scheme in Manchester and Middlesbrough to examine whether early advice can produce savings for the public purse is unnecessary: the evidence that it does was set out compellingly in the Pragmatix report. It smacks of Treasury-driven foot-dragging.
We need to look systemically at the whole ecology of justice. The Government need to ensure that proper data are available to enable informed understanding of what is happening. Everything interacts. All parts of the system need to be resourced properly or else deficiency in one area produces damaging pressures elsewhere. The Government can reduce the burden on tribunals and courts by making better administrative decisions in social security and immigration cases—and, of course, by addressing the roots of poverty and crime.
The chronic underfunding of the justice system disrupts society, wreaks misery across the country and violates the principle that, where citizens have a reasonable case but cannot afford justice from their own resources, they should be supported by the state to have their case heard. That was once common ground across the political parties; for decades, we moved towards its fulfilment. It should still be seen as a bedrock principle of the welfare state, our constitution and a liberal society. The Justice Secretary, who is also Lord Chancellor, bound by his oath of office to respect and defend the rule of law, should not tolerate continuing dereliction of this principle. I look forward to the Minister telling us how the Government plan to restore and renew the justice system.
My Lords, I congratulate the noble Baroness, Lady Taylor of Bolton, and her committee on producing an excellent report in this field.
First, I pay tribute to the prison and court staff who kept the court system going through the pandemic to the extent that they could. It was particularly stressful for them because, with the lack of any contingency planning, they had to cope with new ways of working and new technologies. There was no central direction in the days leading up to 23 March 2020. One by one, Crown Court judges had to take individual decisions on whether to allow jury trials to continue based on inconsistent information and advice. There was no governmental risk planning; if there was, it was confined to Exercise Cygnus, which of course dealt with influenza.
In the weeks that followed, piecemeal solutions were put together jurisdiction by jurisdiction and court centre by court centre. It took months before there were any proper co-ordinated approaches. The High Court and the Court of Appeal coped but Crown Courts, where the bulk of the backlog of cases lies, did not. The digital case system in the Crown Court, which could be a brilliant resource to allow cases to be managed and prepared properly, was held back by the problem of getting jury trials up and running at all.
Some high-profile cases were able to go ahead. The trial for the murder of PC Andrew Harper at the Central Criminal Court led the way, but that case required huge resources involving a remote link to defendants in custody elsewhere. Only a tiny number of cases could be handled in that way.
Nightingale courts in a variety of strange locations—cinemas, theatres, hotels and even a football stadium—were a modest success but were limited because they could not deal with custody cases. You could not bring a defendant to court in a custody case. Custody time limits were extended by statutory instrument from six months to eight months to allow for the pandemic but courts routinely extended custody time limits further, beyond that time period, finding that the pandemic was “good and sufficient cause” for an extension. Eventually, the Divisional Court ruled that this should be followed nationwide in a case of judicial review.
The effect of this was that the defendants remained in custody way beyond the statutory time limit because the Crown Courts could not cope and could not put on trials for them. Now, as the courts begin to recover and tackle the backlog, priority must be given to these custody time limit cases. Other cases, often including serious sexual offences, which have such an effect on the victim, are being vacated from the lists as courts try to catch up on cases where an unconvicted defendant is languishing in prison on remand.
Fundamentally, the pandemic has exposed the chronic underfunding of the criminal justice system, as the noble Baroness, Lady Taylor, pointed out, supported by the noble and learned Lord, Lord Hope. There are not enough judges, nor enough courtrooms, nor enough court staff. Facilities have been shown up as old, defective, inefficient and unkempt; indeed, some were exposed as inadequately clean. Public Health England, which was brought in as part of Exercise Cygnus, was not impressed.
Since the courts resumed, there has been a problem with barristers becoming unwell, just as we in the Lords now find our colleagues falling by the wayside. There is a cohort of experienced criminal juniors who are struggling to cover the work. Some of them are voting with their feet. It is too stressful; the hours are too long and the courts are often not a pleasant working environment.
Paragraph 30 of the report recommends an increase in legal aid to match need. That is a very important finding. The report before us should be read with Sir Christopher Bellamy’s more recent review of criminal legal aid, published last November, which exposed the chronic underfunding that is undermining the profession. The Government have offered to implement at an unspecified point in future the minimum recommendation of the Bellamy review, which is an immediate £135 million investment in criminal legal aid. However, to date, there is no indication of how the money will be spent and the headline figure masks the reality. It is for all parts of the criminal justice system, not just the Crown Courts.
I was impressed by the speech of the noble Lord, Lord Howarth of Newport, a moment ago. He referred to the statutory instrument about legal advice that we debated in this Room not so long ago. Legal advice used to be provided on a green form: legal aid for legal advice was a way in which people could be pointed in the right direction for their problems to be solved. What we had last week or the week before was a statutory instrument to bring about a pilot scheme that will last two years and so cannot come into effect until 2024. That is wholly inadequate. We need to research whether this is required. I remember from my early days that more than 1 million people had legal advice on legal aid without it causing any huge problem.
The criminal Bar has decided that it is too little, too late. On 11 April next, the Criminal Bar Association is going back to a policy of “no returns”; that is, not to provide cover for a barrister who finds himself, by reason of the current deficiencies, listed in two courts at once and has to return his brief to someone else. It is not a strike but a work to rule, and it is planned for next month.
I know that the criminal Bar does not want to damage the system but to improve it. Unhappily, the criminal justice system has not been given sufficient priority in the nation’s recovery from the pandemic—if indeed there is such a recovery as yet.
I heard the noble and learned Lord, Lord Hope, talk about remote juries in cinemas and the noble Lord, Lord Faulks, talk about whether jury trials should exist at all. I have some experience of juries and of jury trials as an advocate. I do not believe that it is right to put a barrier between a jury and what goes on in court. It is a strange thing, but in the whole of my career, I have had only one case in a jury trial where I thought the jury got it completely wrong. I think juries do get it right and they do understand.
When it comes to special juries, we have heard a lot about that in the past, particularly in relation to financial fraud. I have always thought that I would not have confidence, never mind the broader public, in a jury composed of bankers trying a banker for fraud; it is like a jury of policemen trying a policeman for an assault on a member of the public. The whole thing about the jury system is that people come into the jury box with their various life experiences and sit there and listen. They may not follow every point of law that is put to them, but they are part of it. It is particularly important that juries have the confidence of the people of this country. I can well imagine that, if we were to remove jury trials in serious cases, that confidence would not last very long.
There is some research from a very long time ago on the jury system. The same case—obviously, it was not a real case—was put before various juries, one of 12, another of seven and another of, I think, 15. The research showed that, with a jury of 12, the issues in a case are more distinctly and completely covered than with different numbers. I have every confidence in juries, but it is a topic that I think we shall debate long and hard at some future time.
My Lords, I thank my noble friend Lady Taylor of Bolton for this extremely interesting report. As she said in her introduction, it may be a year old, but it deals with issues which we are still dealing with today, and it addresses the context, if I can put it like that, of the way in which the criminal justice system went into the pandemic. She very fairly gave the historical context of the underinvestment in our criminal justice system.
The speech which I had prepared was to go into the statistics of it all—the backlogs, the appalling statistics particularly for sexual-related offences taking a long time to court—but a number of noble Lords have rehearsed those statistics, so I shall not go through them again now.
I thought I would go through the speeches we have heard and draw out the points that were of particular interest, and offer my experience on those matters. I just remind the Committee that I sit as a magistrate in London and deal with adult, youth and family law matters.
My noble friend talked about the digital challenge, as we went into the pandemic, and the uneven picture between the higher and the lower courts, which did not respond as immediately. I sat as a family magistrate throughout the pandemic. We did not stop. Within a week, I was personally operating from my dining room table, originally doing cases by telephone and then eventually by MS Teams. We found a way of working around the cases.
Just to give a bit more background, I am currently chairman of the Greater London Family Panel of 300 family magistrates in London. The panel responded to the Nuffield Family Justice Observatory report, to which my noble friend referred. I am aware of the shortcomings that that report highlighted. Sir Andrew McFarlane encouraged us to respond and we did so. It is difficult not being defensive, given the shortcomings that were identified, but I will just say that there was no alternative but to hear the cases that we did, because children’s safety was at stake. I literally took children away from their parents by telephone in the early days of the pandemic. I think we did the right thing, although there were shortcomings in the system.
My noble friend went on to say that some aspects of working remotely are beneficial. She cited domestic abuse cases, which is fair. I also deal with domestic abuse cases, in different formats and in different jurisdictions, and it is now part of the working process to think about what is best for each particular case.
I also know about the National Police Chiefs’ Council saying it would stop using remote remand hearings. My understanding is that it is a resourcing issue for the police in police stations, and it is a matter of regret to the court system that we were not able to do remote remand hearings and that prisoners actually had to be brought to court. Literally only a couple of years ago, we were able to deal with remote remand court cases when people were still in police stations.
The noble and learned Lord, Lord Hope, also gave some statistics, the experience of Scotland and some historical context, if I can put it like that. The different approaches taken in Scotland were interesting. In my experience of the differences between England, Wales and Scotland, people are very open to looking at alternative ways of working. I occasionally talk to colleagues in Scotland about the way they are addressing similar issues to us.
The noble Lord, Lord Faulks, spoke very effectively about how Covid in courts is a constitutional issue. I agree. He also said that, for some people in various parts of the criminal justice system, justice seems an unobtainable goal. I agree with that as well. He asked the Minister, and I would be interested in his response, about preparations for a future outbreak, if that were to happen.
The noble Lord then went into a greater exposition, if I can put it that way, about the various alternatives to jury trials that had been considered. I thought it might be worth telling an anecdote, speaking as a magistrate and a Labour Party member, about speaking to the then shadow Justice Secretary, David Lammy, about why the Labour Party was supporting jury trials over the alternatives. His response was simple: he said that people trust jury trials more than any alternative. The second point he made was that disproportionality—the make-up of the people taking the decision—is more likely to be accommodated with 12 people than it would be if there was some alternative arrangement. Those were the two points that David Lammy made to me about why the Labour Party supported jury trials continuing through the pandemic.
I thought an interesting point was made about fraud cases. I realise that is a much bigger debate, which is not really for today.
I was pleased that my noble friend Lady Drake spent some time going into the situation in family courts. She quoted Sir Andrew McFarlane and spoke about her experience on the All-Party Group on Kinship Care, citing the concern that there is effectively a rationing of family courts. The piece of jargon which we sometimes use in the family court system is that the local authorities are encouraged to “hold the risk” within themselves, rather than passing the cases on into the court system. The consequence is that cases which do turn up in the family court system are more serious, more advanced and more difficult to deal with. That is a policy decision and partly resource driven. Nevertheless, it has a very real effect: although the numbers of cases are going up, their actual complexity and seriousness are going up as well.
My noble friend Lady Drake also talked about kinship carers not joined to public law cases. She must be a mind reader. I was in a family court earlier today in Holborn and we were dealing with exactly that issue: whether to join some grandparents in private law proceedings to look after their grandchildren while, in parallel, there was a public law case for the children to be potentially taken away into care. It was a little example of the difficulties that the court faces because, although I was physically sitting in court, we were doing it remotely and the connection was extremely poor. The grandparents were not prepared for the case we were hearing. In fact, it had been wrongly listed in the first place, so it was an administrative problem. It did not work very well; I hope it works better next time.
My noble friend Lord Howarth of Newport gave an awful lot of background. I will not repeat the points that he made, because it was a tour of the horizon. Similarly, I endorse the tribute of the noble Lord, Lord Thomas, to court staff and prison staff. They behaved absolutely heroically, in my experience, and kept things working. I will not go into the other points that the noble Lord made because he made them from a source of greater authority than I would be able to match. However, I will be very interested to hear the Minister’s response to the various questions which have been put to him.
My Lords, I thank noble Lords for their contributions. This has been an extremely useful debate. I also thank the committee, including its former and new chairs, for its thorough and wide-ranging report, which underpinned today’s discussion. If I noted it down correctly, the noble and learned Lord, Lord Hope of Craighead, said that it was an excellent report, and I respectfully agree. As a relative newcomer to the House, when I read the report—shortly after it was published some months ago—it was clear that it was a very good example of the detailed and careful work done by committees of the House.
I should say right at the outset that a number of points have been made. Some of them would justify a debate on their own. I hope that the Committee will not find this out of order, but I will seek to respond to the themes, including giving some statistics and data; I will then ask my team to go through the Official Report with me, and I may send a follow-up letter as well. I hope that that will be acceptable.
The noble Lord, Lord Faulks, said that this was a constitutional issue. He referred to both civil and criminal issues. He is absolutely right, of course. The rule of law underpins everything else in society. I led a trade mission to the Gulf last November. The example I gave was that, when you build those wonderful skyscrapers, you do not see the cement once the building is built; however, without that cement, there would be no skyscraper. The rule of law is the cement that holds everything else in our society together.
The justice system is at the heart of everything we do and believe in as a society. There is no doubt that the pandemic had a very significant impact on it. On behalf of the Government, I repeat our thanks to all our partners across the justice system, including solicitors, barristers and the judiciary, but especially—I say this respectfully—court staff, who kept the system running and the wheels of justice turning.
In response to the impact of the pandemic, HMCTS set up national response structures that worked with the wider structures in the Ministry of Justice, other government departments and various external stakeholders. Practical measures were put in place. The estate was made safe by installing Plexiglas screens in more than 450 courtrooms, and 70 courtrooms were reconfigured to hear larger trials. There were a number of discussions with the judiciary to ensure that the most urgent cases could be dealt with if absences went beyond what might reasonably be expected. As we heard from the noble Lord, Lord Ponsonby of Shulbrede, cases were sometimes dealt with in what might be called suboptimal circumstances—but it was better to do that than to do nothing. Sometimes justice just has to be done the best way you can.
That was the situation in the pandemic. The NAO has been referred to, but it is fair to remind the Committee that the NAO praised HMCTS’s response to the pandemic, saying:
“HMCTS responded quickly in the early stages of the pandemic … HMCTS’s evolving governance structures helped it respond quickly and effectively to the operational risks in criminal courts.”
That had a number of effects: domestic abuse victims, who were mentioned earlier, were still able to obtain protection orders; the remand of dangerous suspects could be extended; and, as we have heard, the commercial and family courts continued. We were one of the first countries in the world to resume jury trials; that is an achievement we should be proud of. In turn, that helped us to address the delays caused by the pandemic more quickly than some other jurisdictions.
One of my briefs in the department is the international brief. When I talk to jurisdictions around the world, they see our response to and recovery from the pandemic as extremely good. No doubt there are things we could do better—I will come to the point made by the noble Lord, Lord Faulks, about how we would face a future pandemic later—but the response was very good. We are recovering pretty well, I think, from what has been a fairly torrid two years.
A lot was said about the funding background. The statistics are set out in the report. Those points were made by the noble Baroness, Lady Taylor, the noble and learned Lord, Lord Hope, and others. The Government have made significant investment in the justice system to help it recover from the pandemic. The MoJ’s spending review settlement is the largest increase in justice spending in more than a decade. It was a little disappointing that that point was not recognised. It is one thing to focus on cuts in the past, but we should also look at what is happening now.
More than £1 billion has been allocated to boost capacity and accelerate recovery from the pandemic in our courts and tribunals. That includes £477 million to improve waiting times for victims, and to reduce Crown Court backlogs caused by the pandemic from about 60,000 to our aim of 53,000. The figure for the Crown Court going into the pandemic was not out of line with the historical figure if one looks at how many cases are actually waiting to be heard. The key thing, of course, is not actually the backlog; it is throughput and how long it takes a case to get through the system. You could have a lot of people waiting to have a knee replacement, but the real question is not how many people are waiting but how long they are waiting. We are focused on throughput.
Funding secured for the Crown Court will enable it to sit at its maximum capacity. I will come to Nightingale courts, but we do not have an issue with rooms. The main issue is the number of judges; we now have enough rooms. We have set aside £324 million for civil and family courts, and tribunals, and an additional £200 million to complete the flagship £1.3 billion court reform programme.
I think everybody recognised that technology was a necessary response to the pandemic. I suggest that what we saw in the justice system during the pandemic was what we saw in society in a range of areas: the pandemic accelerated change that probably would have happened anyway. Everything in our lives has been disrupted and I am afraid the justice system has not been any different. As the noble and learned Lord, Lord Hope, said, it was the impetus for new approaches and some of these have stuck.
The remote hearing provisions in the Coronavirus Act allowed literally thousands of hearings to take place. We now have about 11,000 hearings taking place remotely each week. We rolled out the cloud video platform at pace to keep justice going. We developed guidance to support court users when joining remote hearings. Video remand hearings were vital in our efforts to reduce the risk of Covid transmission, removing the need for prisoners to be transported to court sites.
On that point, I understand that it is effectively a resourcing issue in the police. The police withdrew support for video remand hearings in October 2020. Since then, use has diminished significantly: only three forces continue to operate them. We therefore continue to work with other government departments to find a strategic funding solution to address this issue, because we recognise that video remand hearings had some significant upsides.
As I said, the move to online justice was effective and there were lots of upsides to it. That is why we are in the process of replacing some of these provisions with permanent provisions in the Police, Crime, Sentencing and Courts Bill, which is still going through Parliament. I of course recognise that remote hearings might not be suitable for everyone or in all types of case. Therefore, I underline that the mode of hearing will remain a judicial decision and a remote hearing will not take place unless the judge is satisfied that it is in the interest of justice for all parties involved. We have also recently commissioned an evaluation of the implementation and use of the new video hearing services across civil, family and tribunals jurisdictions to ensure we get this right.
I will say a word or two about data. I am afraid that I am a bit of a data freak; I subscribe to the proposition that if you cannot measure it, you do not really know what the problem is, let alone how you are going to respond to it, so please take that point as read. I have had several meetings with Dr Byrom, and she worked closely with the department. We now put out a lot of data. When I write, I will set out some of the datasets that we put out.
I acknowledge that data collection across the court system has historically been challenging and that there is room for improvement. One of the issues—it is a constitutionally proper issue—is that it is not the MoJ which is in charge of every court and every courtroom, in the sense that judges ultimately decide listing, for example. When it comes to collecting data, we have to work with the judiciary to make sure that the data is appropriately captured. Judges, understandably, are very busy, and we have to make sure that we do not divert them and their staff from their main task, but I absolutely acknowledge that we need to do better on data.
One of the benefits of the reform programme is improving data collection: reform will deliver improved data on the way we schedule hearings and use court time, including the use of audio-visual technology. We published the HMCTS Data Strategy in December 2021, which is intended to build on the expanded data available to help transform our services.
We are doing some other things in the data space which I should mention briefly. One of these is making judgments available on the National Archives for the first time. At the moment, if you want to find a judgment you have to pay a private provider for a lot of them. We think that putting them on the National Archives will increase transparency and ensure free access for all. From April this year, that service will also host judicial review rulings, European case law, commercial judgments and many cases of significance from the High Court, the upper tier tribunal and the Court of Appeal. The Supreme Court publishes its judgments on its own website.
So far as protected characteristics are concerned, last week HMCTS published the first report summarising responses to the collection of protected characteristics. They were collected for the period between April and September 2021. It is the first time this information has been published, and we hope that that will be a valuable contribution to the dataset. I underline, however, that the survey is voluntary, so the statistics have to be read with that caveat.
Nightingale courts provided much-needed extra capacity. Of course, the problem was that we could not use a lot of our existing courts because they were too small, so we had to have Nightingale courts. Sometimes they heard criminal trials; sometimes they heard other work which freed up other jury trial rooms to hear jury trials. We have now opened two super-courtrooms, in Manchester and Loughborough, which are three times the size of a usual courtroom and allow for trials of up to 12 defendants. I underline that room is not actually the issue at the moment—we have enough rooms. As I said, the issue is the number of judges.
Another thing we have done to help reduce the backlog is increase magistrates’ sentencing powers. I will not say too much about this, because it was not mentioned by anybody else, but I underline that extending magistrates’ court sentencing powers from the current maximum of six months to 12 months’ imprisonment will enable us to bring criminals to justice more quickly by moving sentencing hearings from the Crown Court into the magistrates’ courts. We estimate that this frees up over 1,700 Crown Court sitting days a year. If you translate that into jury trials, that is another 500 jury trials per year. We are also investing more than £1 million in a recruitment campaign. We want a broader range of people to become magistrates and to boost their ranks by 4,000.
That is part of a broader judicial recruitment campaign. We aim to recruit 2,000 new judges over the next two years, which will enable us to have enough capacity to sit at the required levels over the coming years. So we are encouraging fee-paid judges, with a particular focus on recorders, to sit where they can and are needed, and we are raising the maximum number of days that they can sit each year without having to establish a separate business case. So, for the second year in a row, we have increased the maximum number of sitting days for all recorders from 30 to 80 days.
Over and above that, we have increased the statutory mandatory retirement age from 70 to 75 for judicial officeholders, which will enable us to retain an extra 400 judges and tribunal members, and 2,000 magistrates, every year. There has also been a reform to judicial pensions, but, given the time, I will not say more about that now.
I will say a word about online hearings. I underline that there are benefits in addition to getting cases through the courts. We heard about one: domestic violence. You do not have to go in the same room as your abuser. But there are collateral benefits in terms of diversity for lawyers. For example, if you live in Derby, it is much easier to take your children and drop them off at school and then attend a hearing remotely in Exeter. You can do that if it is remote, and there are many advocates who find that extremely helpful.
The noble Baroness, Lady Taylor, mentioned family courts. The Special Educational Needs and Disability Tribunal has been running as a completely remote hearing since the start of the pandemic. This means that families in crisis, often with children with complex needs, can seek justice more quickly and easily. So, although I absolutely accept that, as we move to online justice, we have to be cognisant of those with poor broadband and poor computer skills, and others who need help—I have made this point in the Chamber on a number of Bills and amendments—there are many advantages of online justice and we cannot tell the 98% that they have to wait for the 2%. We need to help the 2% and make sure that everybody has access to justice—I am passionate about that—but, equally, we need to see where justice is going, and justice is going online.
I turn to the backlogs with the caveat, as I said earlier, that the real issue is throughput and not backlog. We have already made significant strides towards recovery. In the magistrates’ courts—I apologise for throwing figures at the Committee—the caseload is close to recovering to pre-Covid levels. At the end of January of this year, the outstanding criminal caseload was 373,000. That was down from 445,000 in July 2020, a reduction of 16%. In the Crown Court, the outstanding caseload is down to 59,000. That is a reduction of about 2,000 cases since June last year. I absolutely accept that there is much further to go, but it shows that measures to tackle the backlog are starting to have an effect.
In the family courts, we have stabilised the outstanding caseload. In public law, the outstanding caseload by child stands at 21,000. We expect to see this start to fall over the course of this year. In private law, we have started to make inroads and the outstanding caseload by child has fallen to 83,000—down from 85,000 in August last year. The President of the Family Division was mentioned. I have very frequent and constructive meetings with him, and he and I are clear that we need a step change in family law, especially in private family law. Far too many private family law cases are going to court when frankly they should not be anywhere near a court. Back in 2015-16, the number of disposals per day was much higher than it is now; there has been a steady decline. That is nothing to do with the pandemic; there are other factors in family law that are going on and, whether it is the fact-finding hearings or other things, we need a real focus, and there will be a real focus, on private family law in particular.
In the civil courts, timeliness has improved. The average time it takes a small claim to reach its first full hearing has come down by three weeks. In the Immigration and Asylum Tribunal, the case load has fallen by 10%. That is down by 3,400 cases, and its timeliness has also improved.
I am conscious of the time but, if the Committee will indulge me, there was quite a lot said about juries so I hope I may respond fairly briefly. We heard from the noble and learned Lord, Lord Hope of Craighead, that remote juries worked in Scotland. I repeat what I said in the Chamber: we have no plans to introduce remote juries as a matter of course. The provision we put in the Bill is there on an “in case needed, break glass” basis. However, I respectfully suggest to the Committee that, if something is done in Scotland and they regard it as a proper way of doing justice, we perhaps should not find it as radical as some Members of the Committee seemed to see it.
The noble Lord, Lord Faulks, went further on juries. As he knows, we are consulting in the Human Rights Act consultation on the position of jury trials. It is right to say that when one looks at the Strasbourg jurisprudence and talks to lawyers from other jurisdictions, they find it odd that we have cases decided by people with no legal training who do not have to give reasons. Again, I respectfully ask the Committee to consider whether all the countries around the world which manage to decide their fraud cases without a jury are not operating a justice system. There is a real risk in a justice system that what is familiar becomes the only way of doing justice. I suggest that, ultimately, there are two reasons for why we should think very carefully before we move away from the jury system. However, neither has anything to do with its inherent superiority over other systems.
The two reasons are: first, the system in fact has the overwhelming confidence of the people of this country, and that is critical for a justice system; secondly, when you look at a jury—in particular, a jury of 12 because there are more people—you are more likely to see people like you. This is really tied to the first point, I suppose, but juries can be more representative of the community. This is well above my pay grade, so I will touch on this very briefly. I think it is slightly odd that we still ban research into juries. It is difficult to have any real debate—as in the one we are sort of having now—when, at the same time, the legislation effectively prohibits us finding out what actually goes on. If I say anymore, I might be out of a job, so I will stop there.
The noble Lord, Lord Faulks, also asked about our preparation for a future outbreak. Of course, we have learned from the Covid-19 pandemic. We now have a well-established pandemic-focused contingency plan, and we will also build more robust and tested plans to deal with other national events. We are already improving our readiness and planning for other strategic risks to our justice system.
If I can be indulged for another two minutes, I will turn to legal aid. The noble Lord, Lord Howarth, put a gauntlet down about how I will restore and renew the justice system. I am not sure that I can do that on a Wednesday evening. However, I point the Committee to our response to Sir Christopher Bellamy’s report. Also, the means-test review for both criminal and civil legal aid was published at the same time—please do not overlook that. There are a lot of very good ideas and proposals in that means-test review. We think that it brings 3.5 million more people within the scope of criminal legal aid, and 2 million more within the scope of civil legal aid.
Although the Criminal Bar Association is not particularly happy with the Government at the moment, what we said in response to Sir Christopher Bellamy’s report was welcomed broadly by the Bar Council, the Law Society and the Chartered Institute of Legal Executives. I say to the leadership of the CBA that the proposed action is ill-judged and unmerited, and I very much hope that they will reconsider. So far as the innocence tax is concerned, when the noble Lord, Lord Howarth, looks at the means-test review, he will see that it is one thing that we are proposing to do away with. It was a matter of a little regret that he did not mention that in his speech.
We also want people to be able to resolve issues without lawyers. For example, with the new online whiplash claims service and the online money claims service, they can do all that without a lawyer. We are running the system hot; there is no limit on sitting days; we are going to hear as many cases as we possibly can.
I underline that it is no part of my approach to clip the wings of the judiciary, but there is a proper constitutional debate to be had about judicial review and the Human Rights Act, and we will have that in due course.
I am conscious that I am trespassing on the Committee’s patience. I say in summary that we acknowledge that there is a lot more to be done. I hope that the Committee sees that we are doing a lot. We are very focused on justice for all. I think that the benefits from the pandemic are that we will emerge from it with a stronger justice system that is really suited to the 21st century.
My Lords, I must thank everyone who has contributed to this debate, particularly those members of the Constitution Committee who did so much to aid the production of this report. I think that Members will have realised the breadth of experience on that committee. It is indeed significant. We have the noble and learned Lord, Lord Hope, with his vast wealth of experience at the centre of the judicial system. We have the noble Lord, Lord Faulks, who likes to be provocative from time to time, as he proved this evening—I think we could have spent the next few hours talking about the jury system, but it is probably as well not to go there. We have the noble Baroness, Lady Drake, who proves her expertise and experience on family matters and the work that she has done in this House and elsewhere on kinship care. And we have the noble Lord, Lord Howarth, who joined us again today, giving his clear analysis and overview as I have seen him do on many other committees. I want to thank them and the staff of the committee, who were very important to us in writing that report. I now realise why I miss my Wednesday mornings, because they were stimulating and genuinely informative, and it was well worth going to all those meetings.
I thank the noble Lord, Lord Thomas, for his comments about the report. I got the feeling when the noble Lord, Lord Ponsonby, was speaking that perhaps he should have been one of our prime witnesses, because he gave clear examples from his own experience of exactly what we were talking about. It was important that we heard that. We had not discussed it earlier, but I am glad that he took that approach.
I accept that the Minister takes this report seriously and has read it in detail. He covered a wide range of points, and we all share his appreciation of the work done by the courts staff in keeping the show on the road. He mentioned lots of problems, such as what needs to be done on the availability of more judges for more days. What has happened on pensions and on the age change is important. The committee has looked at these issues in the past and will no doubt come back to him, because there are concerns about diversity as well as just numbers and availability.
I am glad that the Minister is a data nerd, if I can put it that way, because that is extremely important. The evidence that we were given showed a great lack of availability of information. He mentioned that the Ministry of Justice is not responsible for every bit of information. That might be why the National Audit Office thought that there was not enough joined-up thinking between the department and the Courts & Tribunals Service.
I agree with him that, as my noble friend said, suboptimal hearings are better than nothing, but I think there is a problem with the backlog. The Minister mentioned throughput, but there is clear evidence of very long delays to very critical cases. That has to be worrying to the victims, their families and a whole range of people. It is another point that we must make.
Overall, we all want to see a court and tribunal system that has more resilience. The Minister mentioned that it has recently had its largest investment in a decade, but I point out that that is the same decade in which the Government made the cuts, so they are just catching up with themselves. But let us put the politics aside. We need resilience and I hope that the Minister will acknowledge that, when we change systems—remote hearings are here to stay—we have to make it work. He said that 98% of people can probably make it work and we should not wait for the 2%. I agree that we should not wait, but I am afraid we are not talking about 2%. We are talking about a much larger group of people who have vulnerabilities, but neither the resources nor the expertise to make best use of that system. We have to take them into account as a priority when we are looking at this.
We are all agreed that the rule of law underpins everything. We need a well-functioning legal system, and a well-functioning court and tribunal system. The recommendations from the committee are intended to be positive and constructive, and I hope the department will take them in that spirit.
Committee adjourned at 8.21 pm.