Transforming the Justice system – views from the National Audit Office
In this blog, I have tried to keep readers abreast of developments with the major Transformation of the Justice system programme. I have observed that this is not always easy and depends on keeping an eye out for press releases, blogs and now the new monthly e-bulletin issued by HM Courts and Tribunals Service.
In May 2018, the National Audit Office (NAO) published its first appraisal of how the programme is going.
Obviously the NAO is supportive of the aims of the programme, which it summarises as follows:
In 2016, HMCTS set up a portfolio of change programmes that will introduce
new technology and working practices to modernise and upgrade the justice system.
By March 2023, HMCTS expects to employ 5,000 fewer staff, reduce the number ofcases held in physical courtrooms by 2.4 million cases per year and reduce annualspending by £265 million. Savings will come from lower administrative and judicial staff costs, fewer physical hearings and running a smaller estate. As well as making savings HMCTS expects the reformed system to work better for all those involved, use court time more proportionately, and make processes more accessible to users.
The NAO report helpfully reminds readers of the scale and scope of the overall programme:
The HMCTS change portfolio consists of several related programmes, which in turnare made up of many individual projects. The major programmes are:• The HMCTS Reform Programme which is modernising processes and systemsto reduce demand on courts by moving activity out of courtrooms. For example,it will introduce online services and digital case files and expand the use of videotechnology in hearings.• The Common Platform Programme which is developing shared processesand a digital criminal justice case management system to share informationbetween HMCTS, the Crown Prosecution Service and the police. It is jointlymanaged by these organisations.• The Transforming Compliance and Enforcement Programme (TCEP) whichis upgrading systems in HMCTS’s National Compliance and Enforcement Service,used to enforce court orders such as penalties and compensation.
As part of these programmes, HMCTS is also reducing and modernising thecourt and tribunal estate and creating cross-jurisdictional hearing centres and national ‘customer service centres’. These will centralise case management and administration and provide support to the public, judges and lawyers on civil and criminal matters.
1 The scope of the programme is challenging
2 The timetable has been expanded
3 The scope of some projects has been reduced
4 Progress has been slower than expected
5 Costs have risen and likely benefits decreased
6 There remain funding gaps for the later stages.
The NAO notes that many of these points have been taken on board within HMCTS. Nonetheless, the NAO argues that more should be done to demonstrate in detail how the reformed system will work. It states that it is important to sustain the committment of all those involved in the design and delivery of the new service. It implicitly criticises the Ministry of Justice for its failure to reintroduce the legislation that will be needed to ensure that aspects of the reform programme can be implemented. The NAO warns that the scale and spped of change may result in changes having unexpected consequences. And as much of the anticipated savings arise from reductions in staff, this could actually lead to an inability to deliver the service.
The public response of HMCTS has been upbeat – as indeed it has to be. A Press Release acknowledges that the programme is challenging; it summarises a number of specific changes that have been delivered; and remains confident that the programme will be successfully delivered.
My own view is that it is very important that the transformation programme is delivered. But the managerial challenge of delivering a large scale change should not be underestimated. To date, key judicial figures have been working with HMCTS to promote the need for and advantages of change. Continued judicial leadership will be essential. But I think it would be wise to develop a wider group of ‘change champions’, particularly within the judiciary more broadly and from the legal professions. Many practitioners will accept that the current system does not serve the public well. Many will have good ideas for how things could be done more efficiently and to greater public benefit. Giving them the encouragement to voice their support for change would be highly desirable.
The NAO report is at https://www.nao.org.uk/wp-content/uploads/2018/05/Early-progess-in-transforming-courts-and-tribunals.pdf.
The HMTCS Press release is at https://www.gov.uk/government/news/hmcts-response-to-national-audit-office-report-on-court-reform-programme?utm_medium=email&utm_source=
Search warrants – reform proposals
As a keen follower of the work of the Law Commission (I was once a Commissioner), I confess I had not spotted the fact that the Commission was undertaking work relating to the law on search warrants. It did not get a mention in either its 12th or 13th programmes.
The reason for this is that in December 2016, they were give a specific commission by the Home Office to undertake work in this area. The first fruits of this project have now been published in the form of a Consultation Paper setting out the Commission’s initial ideas as to how the law might be reformed.
A search warrant is a written authorisation that allows an investigator to enter premises to search for material or individuals. Search warrants are usually issued by a court following an application by a police officer or other investigator. Most search warrants authorise the investigator to seize and retain relevant material found during the search.
Surprisingly, perhaps, detailed analysis of the law reveals that there over 175 different powers to issue search warrants. Some, like the general power under section 8 of the Police and Criminal Evidence Act 1984, are used to look for evidence of a criminal offence. More specific powers allow the searcher to remove stolen goods, drugs, firearms or other dangerous materials or to rescue people or animals in danger or distress. Other powers relate to complex financial or other types of specialised investigation.
The Commission identified a number of problems with the current law:
- the sheer number of provisions, coupled with their complexity, leads to a confusing legislative landscape;
- there is inconsistency across search warrant provisions and in the procedure for obtaining a search warrant. Importantly, there is inconsistency in the applicability of statutory safeguards and the protection afforded to particular categories of material;
- a large proportion of the legislation, in particular the Police and Criminal Evidence Act 1984, predates the advent of electronic material and risks failing to deal with emerging digital technology and the forms in which criminal activity now takes place; and
- the number of appeals generated by search warrants legislation, and the legal fees incurred, creates excessive cost for all parties.
In the light of their analysis, the Commission has made proposals to:
- simplify the law and procedure governing search warrants by rendering it more rational and accessible at all stages of the search warrant process;
- make the law fairer by extending protections, improving judicial scrutiny and making the law more transparent;
- modernise the law to ensure that it reflects the changing nature of investigations and is equipped to deal with current technology; and
- make the law more cost-effective by introducing a streamlined way to obtain a search warrant and a new procedure to challenge and correct procedural deficiencies.
The consultation runs until 5 September 2018.
For further details and links to the consultation go to https://www.lawcom.gov.uk/project/search-warrants/
Keeping up to date with the Transformation of our Justice System project
I have commented before that it is quite hard for those outside Government and the Judiciary to keep abreast of developments with the Transformation project. Occasional blog items from HM Courts and Tribunals service are useful but don’t necessarily pick up all that is going on.
I therefore welcome the announcement that from June there is to be a monthly e-bulletin devoted to the programme. Those interested are able to subscribe to the service, thereby receiving regular updates.
The first edition is available at https://content.govdelivery.com/accounts/UKHMCTS/bulletins/1f03e7b
The Courts and Tribunals (Judiciary and Functions of Staff) Bill 2018
The great Transformation of the Justice System programme, being advanced by the Ministry of Justice and HM Courts and Tribunals Service was initially supported, legislatively, by a substantial Prisons and Courts Bill 2017. This fell when the General Election was called in June 2017. (See this Blog, March 2017 and July 2017). Since then, legal system watchers have been awaiting the return of the Bill, either in its original form or in a new guise.
Our patience is now at least partially rewarded with the publication of the Courts and Tribunals (Judiciary and Functions of Staff) Bill 2018, which was introduced into the House of Lords at the end of May 2018. As its title suggests, this is not the full legislative package originally envisaged. Rather it is a short, 4 clause Bill Iwith Schedue) which proposes measures to facilitate the more flexible deployment of judicial and other staff.
Once enacted, the judiciary will be flexibly deployed across jurisdictions, allowing judges to gain experience of different types of cases, helping with their career progression. It will also enable judges to be used in specific courts or tribunals where there are serious backlogs of cases.
As regards the taking over of tasks currently undertaken by judges, authorised staff could carry out some of the more straightforward judicial functions, including tasks like issuing a summons; taking a plea; extending time for service of applications; or considering applications for variations of directions made in private or public law children cases. One noteworthy measure is that the role of the Justices’ Clerk, currently a statutory one, will become non-statutory. This will enable them to give advice on law in the Family Court as well as in the Magistrates’ Court.
Details of the Bill are at https://publications.parliament.uk/pa/bills/lbill/2017-2019/0108/lbill_2017-20190108_en_2.htm#sch1
Transforming the Justice system – maintaining the estate; answering the phones; better listing
I have noted many of the developments that are currently taking place within courts and tribunals, arising from the Transformation programme that has been on-going for the past couple of years. Much of the emphasis has been on the design and development of new practices and procedures – e.g. pilot schemes relating to the use of on-line courts, or the digitization of procedures
A recent blog from the Head of HM Courts and Tribunals Service, Susan Acland-Hood, notes that the transformation programme is not just the use of high-tech innovations. It also includes more bread and butter issues, which nonetheless affect the public and those who work in the courts.
In her recent post, she notes three specific examples of investment, designed to improve the day-to-day operation of the courts and the court service.
1 Maintenance and repair. Many court buildings suffer from heating systems that do not work, lifts that do not work, and a generally drab physical environment. The modernisation programme includes improvements to the overall environment of courts and tribunals.
2 Answering the phone. Investment is being made in a number of call centres whose task will be to answer questions directed to a number of courts – county courts and magistrates courts. This is designed to ensure that calls don’t go unanswered, especially in smaller courts where there may be insufficient staff to handle all the incoming calls.
3 Tacking delay. The blog notes that the number of outstanding cases in the Crown Court is at the lowest level since 2004; the time taken from first listing in the Magistrates’ Court to completion at the Crown Court has been decreasing since the peak of 196 days in 2015 to 175 days in 2017. (It is not clear whether this is due to greater efficiency or because few cases are coming into the criminal justice system.) It also note the positive impact of the use of single-justices hearings to reduce delay.
Forther information is available at https://insidehmcts.blog.gov.uk/2018/05/17/reform-means-getting-the-basics-right-too/
Exceptional case funding for legal aid
For an interesting research report go to this note published by the UK Administrative Justice Institute:
Extending access to Exceptional Case Funding (ECF) through the work of university law clinics
Transforming the Justice system – case studies
It is quite hard for those outside the justice system to know exactly what is going on with the overall transformation programme. But a source of really interesting material is Tribunals Journal published 3 times a year by the Judicial College. (I declare an interest – I have just been appointed to its editorial Board.)
The latest edition, published in December 2017, contains a number of interesting case studies on developments which are relevant to the transformation programme. The following items are particularly worth noting.
Lorna Findlay, who is an Employment Judge, was an early volunteer to receive training to entitle her to sit as a judge in the county court. ) One of the transformation programme’s central goals is the creation of ‘one judiciary’ whereby judges can be deployed to different areas of work.. The author describes the basic training she received and the shadowing she undertook before she started sitting as a District Judge on civil matters. Her overall impression was that the essential features of the judicial role were the same whether in the ET or in the county court.
She felt that her experience in the ET gave her more confidence in handling litigants in person, who appear more often in the tribunal, than some of her civil judicial colleagues. At the same time, she thought that procedural rules in the county court, which enable judges to give only brief summaries of key facts and grounds for decision, should be brought into the Employment Tribunal rules – ET decisions are currently notoriously and unnecessarily long in her view.
Sian Davies, another ET judge based in Wales, described a pioneering initiative to assist litigants in person. The aim was to find a way for the ET itself to be able to signpost litigants in person to sources of assistance that might help them frame and argue their cases. The obvious challenge is that the ET must not appear to be taking sides. But with the reduction in the availability of legal aid, the tribunal argued that new ways of trying to assist should be developed. One outcome has been the creation of an ET Litigants in Person Scheme, in which volunteers – acting pro bono – offer advice and assistance to parties before the tribunal. These are based in the London Central ET and Cardiff.
Meleri Tudur writes about the use of registrars and now tribunal case workers to undertake some of the more routine paperwork that historically had been undertaken by the judiciary. In some cases this had led to a significant reduction in the amount of time taken by judges on what is known as ‘box work’.
To me, these are all examples of initiatives designed to make the existing courts and tribunals service more responsive to the needs of users. Tribunals Journal should be essential reading, not just for the tribunal judiciary, but for those involved in the reform of the justice system.
The Winter 2017 number of Tribunals Journal can be found at https://www.judiciary.gov.uk/wp-content/uploads/2013/07/tribunals-journal-winter-2017.pdf
Money claims on line
For many years it has been possible to start a small money claim by completing forms on-line and submitting them to the court.
In April 2018, following a pilot launched in July 2017, a new on-line process for making a money claim with a value of up to £10,000 (the current small claims limit) has been launched, designed to be easier to use by potential claimants. Rather than having to fill in and post a paper form, or use the original on-line system which dated from 2002, the new pilot allows people to issue their County Court claim more easily, settle the dispute online and also recommends mediation services (which can save time, stress, and money).
According to the Press Release announcing this decision “Early evidence [from the original pilot] suggests that the online system has improved access to justice as engagement from defendants has improved.”
At present, it seems that the only way that one can see how the new process works in practice is to go on-line and submit the details of a potential claim – this includes setting up a special account. What I think is urgently required is one of those ‘how to’ videos that are available on You Tube. (There are videos with this or similar titles but they don’t specifically refer to the new MoJ scheme.)
The press release announcing the development is at https://www.gov.uk/government/news/quicker-way-to-resolve-claim-disputes-launched-online.
If you would like to explore the money claim website more fully, it can be found at https://www.gov.uk/make-money-claim
Reform of the Parole Board
The Warboys affair, in which the Parole Board recommended the release from jail of a London taxi driver who had been convicted of a number of rapes and who was suspected of involvement in other offences, caused public outcry in January 2018. It lead to the resignation of the Chair of the Parole Board, Prof Nick Hardwick. And the Secretary of State for Justice, David Gauke, was clearly anxious that there should be changes to the ways in which the Parole Board worked (somewhat disingenuously, as the Parole Board itself had for sometime been arguing for change).
A review of the Parole Board was announced in January 2018 (see this blog for 24 January 2018). The review was asked to look at the following issues:
- the law, policy, guidance and practice relating to challenges to Parole Board decision-making
- the transparency of Parole Board decision-making
- victim involvement in Parole Board hearings
- arrangements for communicating with victims
The result of this review was published on April 28 2018. It can be found at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/703534/review-of-the-law_policy-and-procedure-relating-to-parole-board-decisions.pdf
The Government has made a number of important announcements which will affect the ways in which the Parole Board undertakes its work going forward.
In particular, Rule 25 of the Parole Board Rules – which currently prohibits publication of details of parole board decisions – will be amended in favour of much greater transparency.
In addition, the Government has announced that it will make immediate changes to how it communicates with victims, as well as looking at how more victims can be offered the Victim Contact Scheme (VCS).
A more fundamental change proposed is that there should be created, within the Parole Board itself, a mechanism for the reconsideration of decisions taken by the Board, that would remove the necessity of parties having to launch expensive proceedings in the Courts for judicial review. The precise ways in which the reconsideration process should work have not yet been finalised, but a Consultation Paper setting out various options and suggestions has been published with views sought by the end of July 2018. It is anticipated that reconsiderations would in general be chaired by judges who are members of the Parole Board.
See https://consult.justice.gov.uk/digital-communications/reconsideration-of-parole-board-decisions/
There has also been published the terms of reference for a full review of the Parole Board Rules, with the specific object of trying to improve the transparency of the work of the Board.
See https://www.gov.uk/government/publications/review-of-the-parole-board-rules
The speed with which these first decisions have been taken is an indication of the political pressure to respond to the outcry created by the Warboys case. Further details, in particular on the proposed reconsideration process, will be considered here in due course. It is worth observing that the Secretary of State’s strategy can be delivered entirely through changes to regulations, which will not require parliamentary time.
RESOLVING CONSUMER DISPUTES: Alternative Dispute Resolution and the Court System
Lawyers might think that a government research report with the above heading would/should have been published by the Ministry of Justice (MoJ). Would this not be a central theme in the Transforming the Justice System programme that is currently underway?
It may therefore come as a surprise that this is the title of a report commissioned and published by the Department for Business, Energy and Industrial Strategy (BEIS). In it consultants have looked at a number of contexts in which consumers may seek to obtain redress for problems they have with traders or other service providers.
The report seems to have been written with no account taken of the not inconsiderable body of work already done on the use of ADR in England and Wales (e.g. the reports by Professor Dame Hazel Genn). There is no reference to the court transformation programme. There is one reference to the Civil Justice Council (though not to its relatively recent paper on ADR). It is as though BEIS and MoJ are living in separate if not parallel universes, with no communication between them.
This may of course be deliberate. It is possible to imagine that BEIS – who have responsibility for promoting business and protecting consumers – have become fed up with the slow place of change in the use of ADR in the court system and want to charge ahead with their own initiatives.
What is interesting, however, is to see just how pervasive the use of ADR mechanisms are in the UK. The report sets out a list of 95 bodies who offer differing forms of ADR for the resolution of complaints and disputes. And there is an intriguing footnote citing more recent research, undertaken by Citizen’s Advice, which reveals that the total number of such schemes is approaching 150.
From the data they collected, the researchers suggest that ADR is quicker and cheaper than the courts; that those who use either the courts or ADR are in general, older, better off and better educated than consumers taken as a whole; and that these groups are in general better informed about the existence of different forms of ADR.
It is not the function of this report to argue that either use of ADR or use of the courts is to be the preferred method for resolving consumer disputes. But the researchers do, at the end, list a number of ‘indicators’ that could be used for ongoing monitoring of the use of ADR. This suggests to me that BEIS might hope to find over the years greater consumer awareness of and use of ADR schemes for the resolution of consumer disputes.
What the policy outcomes of this study will be are hard to discern from the present document. One may guess that, for modest-value disputes, use of different forms of ADR will steadily grow. What is surprising is the apparent lack of contact with others working on the reform of civil justice.
The report can be found at https://www.gov.uk/government/publications/resolving-consumer-disputes-alternative-dispute-resolution-and-the-court-system
(I am grateful to Walter Merricks, CBE, for drawing the existence of this report to my attention.)
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 