Covid-19 and the Courts (Constitution Committee Report)

Baroness Taylor of Bolton Excerpts

Wednesday 23rd March 2022 Grand Committee

Moved by

[Baroness Taylor of Bolton]

That the Grand Committee takes note of the Report from the Constitution Committee COVID-19 and the Courts (22nd Report, Session 2019–21, HL Paper 257).

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, the noble Lord, Lord Howarth of Newport, will be contributing to this debate remotely.

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[Baroness Taylor of Bolton (Lab)]

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.

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[Baroness Taylor of Bolton (Lab)]

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.

Motion agreed.