The Lord Chief Justice talked about the impact of the COVID-19 pandemic on the courts, modernisation of the courts service, legal aid funding, judicial diversity and recruitment when he gave evidence at Parliament’s Constitution Committee on Wednesday morning.
Here are some highlights of the topics covered by him:
He said: “For all of us, it’s quite difficult to think back to the time before the end of March 2020 when, in so many respects, life was turned on its head for all of us. Even before lockdown, I had indicated in all jurisdictions who should be moving towards using technology much more frequently because there were problems with social distancing and the expansion of COVID. Once we had lockdown at the end of March 2020, there were some urgent decisions to be made to enable the administration of justice to continue. The first was a review of all of our estate, with the courts service and the MoJ to divide the estate up into three groups: those courts that would remain open for all purposes, including public attendance; courts that would remain open for the use of staff and judges; and those that would temporarily be closed.
“Critically, the decisions that were made – inevitably by me – were to ensure things kept going. We were very concerned that, if we were to stop altogether, as it happened in countries around the world, there would be grave difficulties in restarting.
“What we did in the early stages was to pivot to the use of technology where it was appropriate and in interests of justice. It’s right that I should pay tribute to the staff and judges in the courts and also to the users in the courts for enabling that to happen in very difficult circumstances.
“Looking back to the position 14 months ago, we are now using a product called Cloud Video Platform (CVP) which isn’t perfect but provides a relatively stable and good online platform.”
He added: “Our greatest problem was in the criminal jurisdiction, both in the magistrates’ and the crown courts, where large numbers of people need to be involved in cases so there were not only difficulties in the courtrooms themselves, ensuring the environment was safe, but in the buildings with large volumes of footfall, and in the cells in criminal courts.
“In the Magistrates’ Courtss, things carried on – not as normal. Trials were paused for just for a very short time but pretty well carried on as best they could, with volumes increasing over the course of the year.
“In the crown courts, we had to pause jury trials for six or seven weeks while quite elaborate preparations were made to enable jury trials to restart, which they did in the second week of May last year, and have gently increased over the ensuing months and nearly a year.
“Both in the magistrates’ and crown courts, volumes of work being disposed of now are back to pre-COVID levels. Outstanding caseloads are gently falling. In the crown courts, we are doing more work, in the sense of more sitting days, than we have done since May 2015. The position been really quite remarkable in all jurisdictions.
“And the family court has sat more days in the last year than it has done in many years, than I think it has ever done.”
Asked what the judiciary has learned from the pandemic period, he added: “An important thing which became apparent from the outset was that top-down direction was not what was needed. Success in many of our jurisdictions has resulted in local initiatives – local judges and court staff knowing how best to use their courts. Local initiatives with all the local players, in crime and family in particular. We’ve been very keen to allow local judges and local participants in processes to get on and come up with good ideas to increase volumes in their own jurisdictions.”
He said of the courts’ priorities and challenges going forward: “We have to stick to full capacity in all jurisdictions. That means not only using our buildings to full capacity, but also our judges, including fee-paid judges, and bringing along all the other vital players in each jurisdiction.
“So in crime, buildings and judges are the beginning of it. We need staff and the numbers of staff have been expanding over the past year. We need the CPS and probation to be able to keep up with us. In family, we need local authorities and public and private law work to keep up with us, which is the over-arching message. We must be enabled to sit at full capacity, and I’m happy to say that the arrangements put into place between me, the Lord Chancellor and Senior President of Tribunals for this coming financial year – April to April – enables us to do just that.”
Lord Burnett added: “During the last 14 months, the Lord Chancellor has secured significant extra funding from the Treasury to enable steps to be taken to increase capacity. A lot of money was needed to provide the technology into the courts, to adapt courts in COVID-compliant ways, for additional staff and for the Nightingale Courts. For this year, funding is not a problem, in the sense that the Lord Chancellor and I have agreed that, in the criminal courts, we will continue to sit at full capacity. There will be no restriction on sitting days. In recent years, there have been artificial restrictions on the number of days the crown courts can sit, which resulted in courts sitting empty with cases ready to be heard. It’s been very unsatisfactory. That is not happening this year. Neither will this be happening in family and civil, where the allocations really reflect the maximum possible judicial capacity.
“My plea is that what is happening this year is not a temporary sticking plaster. It’s absolutely vital that, as we move forward, we will have to continue to sit at full capacity in all our jurisdictions to enable us to retrieve the outstanding caseloads. I’m confident that the Lord Chancellor believes that is necessary as well, and I had a discussion with the Prime Minister, and he agreed too. I hope they can persuade the Treasury to provide the funds when it comes to the negotiations for the next financial year.”
Retaining and recruiting court staff
Lord Burnett was asked about the problems with retention and recruitment of staff, with regards to pay scales within the Ministry of Justice.
He said: “Last summer, the plan agreed between me and the Lord Chancellor, was that 1,600 additional staff should be recruited into HMCTS and there was an urgent need for extra staff, particularly to support the remote working that was going on.
“The retention problem is a really serious one for the courts service. The courts service recruits into its ranks. The pay in the courts service, at an equivalent grade, is rather less than in many other central government or public sector departments and organisations, including HMRC and the MoD. What we find happens all the time is that someone joins the courts service, is trained to do a particular job, then transfers over to another department because the pay is better. So we lose talent and experience, and this has to be filled in with temporary staff from agencies, who are more expensive.
“This has been a problem for a long time, and it has been a real disappointment the Government has not been able yet to solve it. I understand that a proposal is being developed by the MoJ to try to resolve this issue and it will require Treasury approval. It’s absolutely idiotic that HMCTS recruits good people and trains them, then quickly loses them. It shouldn’t be allowed to happen.”
Addressing the backlog of court cases pre-COVID, Lord Burnett said: “It concerns me. The whole question of delays in the criminal justice system is something that needs careful attention. The reality is the biggest delays occur between reporting of an offence and the papers going to the Crown Prosecution Service to decide whether to charge. Once cases come into the courts, even now, they are dealt with – mostly – pretty quickly. Anyone who is in custody has the benefit of custody time limits set by Parliament, so those cases have to be prioritised. All resident judges, the senior judges in each crown court, and their listing officers review their caseloads all the time to ensure certain types of cases, even if not custody cases, come forward, for example if there is a youth being tried in the crown court or if there are vulnerable witnesses, efforts are made to get the case on very quickly. Even now, if you look at news stories, many of the cases are coming on remarkably quickly. But the reality is that everything has been moving more slowly and the accumulated caseload, by whatever measure you apply, has grown by roughly 50% since March last year. If we are able to run our courts at full capacity, with the cooperation of the CPS, police and probation, we will begin to bear down on that caseload quite quickly.”
The committee said Legal Aid (LA) budgets had fallen by nearly 40%, and asked Lord Burnett about the impact on people’s access to justice.
He replied: “So far as crime is concerned, it is well known that LA rates paid to solicitors and barristers have remained static for very many years. For quite some time, there has been some growing concern that the availability of criminal defence solicitors has been diminishing. The Law Society did a lot of work a couple of years ago which gave the evidence of the demographics of criminal solicitors, and it showed that there were far too few youngsters coming into it and far too many people at the other end of their careers: in other words, it was withering. There were also problems with availability in some parts of the country.
“It’s absolutely vital that there is a vibrant and capable criminal defence community. It’s vital for the rule of law and the administration of justice. That extends to the Bar and to advocates. The MoJ and Lord Chancellor has commissioned a review of LA, not only looking at the rates of remuneration are such that someone could make a reasonable living at it, but also looking at its structure because there is a real concern that the way in which criminal LA is structured does not incentivise the lawyers to get on top of the case at the very early stage, which might result in it being squeezed out of the system, but encourages cases to trickle on. That is very bad for the administration of justice and does nothing to resolve the outstanding caseload. I’m optimistic the review will offer some deep insights into the future of LA, in crime in particular.”
As for non-criminal cases, he added: “LA in the civil system is very rarely available. It’s available in public law cases and some civil cases, but not very many.
“Over the years, there have been reviews of funding for civil litigation, all sorts of ideas have been developed, but we’ve never ended up with a system of funding that is entirely satisfactory. It’s ripe for general review. With family, the problem is in private family law where family LA has virtually disappeared. The result is that we now have huge numbers of unrepresented family litigants who, with the assistance of lawyers, would resolve their problems. It’s a particular difficulty of the Family Court.”
Diversity in judicial recruitment
One of the committee’s main questions was about judicial recruitment, and whether there were enough ethnic minority or women recruits.
Lord Burnett said: “The progress made in diversity has been slower than any of us would have liked. As far as gender is concerned, broadly speaking there is gender parity in appointments in the tribunals and courts, save at the High Court level. There the success rate in application is not, as I understand it, statistically different between men and women. The issue there is that solicitors and barristers are themselves not representative at the highest levels.
“As far as ethnic diversity is concerned, the progress has been steady but slower than any of us would have liked to have seen. I’ve spoken quite often about diversity in the judiciary, and it’s important that the judiciary should, as far as possible, reflect the society that it serves. That should not only be through gender and ethnicity, but also more broadly, I do worry about the social diversity of the legal profession and thus of the judiciary, which is something that needs considerable attention.
“The reason the judiciary should be diverse is that it is likely to enhance confidence in the judiciary, and in the people that we serve, and also it shouldn’t be overlooked that there’s an enormous pool of barristers, lawyers and legal executives now who are able to apply for many judicial posts – an enormous pool which is very diverse and we want to encourage the best into the judiciary at every level. So getting the best means encouraging people from every walk of life in the profession, every type of lawyer, and every type of person to apply. None of us want anyone to be put off for any reason. There’s a lot we are doing within the judiciary to support and encourage diversity, to widen the pool of applicants for judicial appointments. So too is the JAC, MoJ and the professions.”
Lord Burnett was asked if the views of the judiciary were represented sufficiently with the Government, and how he would strengthen that knowledge and understanding. He replied: “The JO provides information and have done talks for those in Government to ensure the independent role of the judiciary is understood. But it’s not a big problem.”
Lord Burnett was asked about some politically-motivated cases challenging the Government in court. While he couldn’t comment on specific cases, Lord Burnett said: “These are a very small proportion of cases that come before the courts. Those overtly political cases with no legal substance are weeded out at the beginning and don’t get permission to proceed. It’s unwelcome if people seek to use the courts for political purposes. Judicial reviews are not for politics by other means.”
Concern for judges’ safety
The committee highlighted that, in a recent Judicial Attitudes Survey, two thirds of judges in England and Wales feel less respected by society than they were a few years ago, and over a third have concerns about their safety outside of court.
Lord Burnett said: “Many people doing jobs of a public nature might feel they are not as respected as they used to be. Whether that’s right or wrong is difficult to gauge. Over many years, IPSOS MORI (the polling body) has been doing surveys of the public, asking how they view different professions, including the judiciary, and the judiciary nearly almost come very near the top, so it may be the reality is different from the perception.”
Speaking more specifically about the safety of the judiciary, he explained: “It’s of real concern to me. There is happily a big difference between perception and the reality. There are very few incidents involving judges out of court. Any at all are very unwelcome indeed. We have a fairly well-honed and effective system for providing support to any judge at any level who feels under threat of any sort.
“It’s often in the context of family cases, where emotions run very high, and some disappointed litigants have behaved very badly indeed. That has generated some cases of concern. So too has social medial attacks.
“We now have a protocol with the police, which operates in every police area in the country, to ensure if there is any concern at all, of which the police share some concern, then appropriate steps are taken to provide help and assistance. It’s one of the many areas of judicial welfare I am responsible for. We have been working quite hard to try and put in place processes which provide proper protection.”
Finally, Lord Burnett was asked about Wales, which has some distinctive legal systems following devolution, particularly in family and property case law.
Asked about promoting South Wales as a legal centre, Lord Burnett replied: “Cardiff continues to be the administrative centre of Wales, and the Court of Appeal sits there every year. We are also encouraging courts in Wales, for example Business and Property Courts have a base in Cardiff.”
He has appointed Lady Justice Nicola Davies to oversee work of the Court of Appeal in Wales.