Covid-19 and the Courts (Constitution Committee Report)

Lord Wolfson of Tredegar Excerpts

Wednesday 23rd March 2022 Grand Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

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.