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January 11, 2019

Opening Pandora’s Box? Consulting judges on court reform

The public are used to consultations which seem to be tick box exercises. Every consultation on court closures has inspired numerous responses opposed to closure. But in nearly every case, the court has still been closed. The public was recently asked about the potential closure of Northallerton Magistrates’ Court. 168 responses were received. “Of the total 1 was neutral, 5 were in support of the proposal and 162 were opposed”. It is still being closed.

There has been no public consultation on most of the changes involved in the digital court reform programme. But there has been an recent, unprecedented effort to formally consult judges. It looks as if Lord Justice Burnett had his ear bent by concerned judges as soon as he took up the post of Lord Chief Justice. With the help of the management consultancy Accenture, the judiciary launched a consultation on the main aspects of the digital court reform programme in Spring 2018. It was made clear that though the main tenets of the programme were not negotiable, aspects of implementation were. But inevitably the lines between implementation and principle are not hard and fast and judges used the consultation as an opportunity to express their concerns about both.

The oddest element of the “JWOW” consultation is that the responses have never been shared with those consulted – with “rank and file” judges. Headlines of the results have been communicated to judges and leaked to selected newspapers in three stages, most recently just before Christmas. It’s clear from the latest communications from the senior judiciary (one for each of criminal, family, civil and tribunals) that the consultation responses have been coded and written up but no summary has been disseminated to consultees. The only senior judge who has offered is Lord McFarlane who in his communication says family judges can email to obtain the summary of family consultation responses.

If I was a magistrate or tribunal judge who had responded to the consultation, I’d be a bit fed up not to know what my colleagues had said. The only public quotes from the responses are from Kent Magistrates (obtained by Transform Justice), and the Association of District Judges (civil) response which was leaked to Emily Dugan. Both reflect huge unhappiness about some of the fundamental ideas behind the reform as well as about the detail of implementation. Ironically the Kent Magistrates also complained “little or no feedback is being given on submissions resulting in reluctance by many magistrates to engage with the reform process…The decision-making process is opaque…In our view, little is being done to interact directly with other categories of court users and relevant agencies”. Who knows, maybe more actual “JWOW” responses will get into the public domain?

The four “communications” outline what each jurisdiction will do in response to the consultation responses. They are written by the most senior judges in each jurisdiction and have a slightly different style and tone, though there are common themes.

My reading is that responses, particularly in civil and family, have put a significant break on some reform plans. But in responding to concerns, the senior judiciary have clearly had little room for manoevre on some “big ticket” items. For instance, I don’t understand how they are going to properly meet concerns about staffing levels. The Lord Chief Justice writes “The staffing of courts and tribunals is a top priority being discussed in jurisdiction-specific meetings. We want to assure you that the JEGs and the senior judiciary are aware of your concerns and are advising HMCTS as they strive to get this right”. But staffing in courts has already reduced and is set to reduce by a further third. An HR consultancy has been contracted by the Courts service at the cost of £5.6 million to “deliver an enhanced Career Transition Support package to help our people make the emotional transition, as well giving practical support to gain a role within the reformed HMCTS; find a job elsewhere; or to pursue alternative paths such as retraining, self-employment or active retirement”. Of the remaining court staff, 40% are going to work in new customer service centres, not in the courts. I calculate this will leave courts with less than half the staff they have now. So I’m not sure how the judicial reassurances about staff can realistically be fulfilled.

One innovation which has prompted considerable resistance across jurisdictions is to the use of video links and, particularly, to all-video (virtual) hearings. Resistance is not surprising given the very mixed success of video links in criminal hearings. As well as being beset by technical problems, advocates say links hinder the client-lawyer relationship and there’s also evidence that putting defendants on video negatively affects outcomes. This Ministry of Justice research is never quoted by HMCTS, MoJ or the Judiciary. But a recent evaluation of a pilot video tax tribunal (in which all litigants were on video) is quoted in all the recent judicial communications: “the Tribunal judges…were cautiously positive about the experiment. The litigants themselves were positive about the video hearings”. Unfortunately the researchers could only interview two litigants about their experience, so not a lot can be read into their positivity.

Rank and file judicial concern has however led to a commitment to restricting the use of video hearings. Lord McFarlane writes: “You have expressed a range of legitimate concerns about the increase of using Fully Video Hearings … You are understandably apprehensive of the potential for parties (and their lawyers) to be denied the valuable opportunity for pre-hearing (and mid-hearing) face-to-face meetings at Court when crucial and time-saving negotiations and discussions take place and agreements are often reached; you are worried about compromising the gravitas of the proceedings; of the reduced ability to assess non-verbal cues and body language of the parties; and have concerns relating to security and confidentiality of the Court processes (particularly concerning children) including the ease at which they could be recorded and posted publicly on social media”.

Given that there has never been a published detailed plan and timetable of the digital court reform programme, its hard to know whether the new commitments by senior judges amount to significant changes or not, ie whether the consultation responses have just slightly or significantly altered things. It’s also not clear whether some of huge sums spent on consultants, user testing and software have gone down the drain because of these changes?

Good policy is created through open processes and proper consultation. Its a real pity that this process has been so messy. A small group decided way back in 2014 that the solution to the financial squeeze on the courts was to close courts, reduce staff and move court hearings online and on video. There was no open policy making process and the public, rank and file judges, and practitioners were either not consulted or consulted very late in the day once huge sums had been committed. It is good that the judges were eventually given an opportunity to feed in their views, but it would be better still if their views were published, and proper research done before any more plans are set in stone.