Judges have given a scorching assessment of the government’s proposals for court reforms and closures, a document seen by BuzzFeed News reveals.
The government published a consultation in January on a major programme of reform to courts in England and Wales, which resulted in courts being closed and attempts to replace some hearings with virtual ones. The reforms have been criticised as a way of rebranding large budget cuts.
A submission from the Association of Her Majesty’s District Judges (ADJ) to the Ministry of Justice reveals the deep frustration felt by nearly 400 district judges in England and Wales who handle most civil and family law cases in county courts.
It says:
Court systems are already “even more broken” thanks to drastic budget cuts.
Further court closures should be halted until more is known about their impact.
That the government did not appear to have done an impact assessment on vulnerable people and that “indirect discrimination results from these proposals and cannot be airbrushed away”.
Relying on technology to replace courts is risky: A recent virtual hearing to promote the idea “had to be abandoned due to excessive buffering and crashing”.
That the government’s consultation “reads as if cutting costs is being prioritised over access to justice”.
The government’s analysis behind increasing travel time for court users is likely to be “cursory and inadequate”.
The document paints a grim picture of the current state of the courts following repeated budget cuts: “The reality is that there has been a steady reduction in the [Courts and Tribunals Service] budget since the launch of [the Reform Programme] and this has resulted in haemorrhaging of experienced staff, a serious decline in staff and judicial morale, delays in all aspects of process and court systems that are even more broken.”
The Reform Programme, which the government claims represents a £1 billion investment in modernising courts, comes after more than £3 billion has been stripped out of the MoJ’s budget since 2010. The consultation closed in March but its conclusions have yet to be published.
The district judges’ response was submitted by the association in March and uploaded to the Judicial Intranet, shared by all judges. It shows the depth of concern among the judiciary at the government’s proposals.
District judges are responsible for hearing a huge range of civil and family law cases. These include housing repossession, divorces, domestic violence injunctions — and many cases involving children. While the senior judiciary who hear cases in higher courts have been more actively involved in the consultation, it is arguably district judges who are at the frontline of many of the reforms.
District judges say the benefits of reform have been overstated. “The tangible benefits to date of the promised £1 billion Reform budget are patchy at best but do not disguise a decline in the overall levels of service provided notwithstanding significant operating profits reported in the Civil Section of HMCTS.”
The association makes an explicit call for court closures to be stopped until more is known of their impact, though this appears to have been ignored. “We would call for a pause in the court closure programme until a proper stock take of the present position has been carried out and all assumptions underlying the policies in relation to court utilisation have been scrutinised,” they said. “In particular fully functioning IT systems must be demonstrated to be up and running successfully.”
They accused the government of doing no assessment of the proposals’ impact on vulnerable people, saying: “It is unusual to have a consultation as important as this one without an impact assessment and the fact that one could not be done demonstrates that the finer points and practicalities have not been thought through properly or at all.”
The association was categorical that the government’s proposals will have a negative impact on vulnerable people, saying: “The fact remains that indirect discrimination results from these proposals and cannot be airbrushed away.”
The MoJ now says it has employed “a number of staff” to look at the impact of the proposals but it is not clear if this is since the ministry was criticised by judges for a lack of action in March.
The judges said the consultation paper read as if cost-cutting was being given precedence over other concerns: “This consultation paper and Part 5 in particular reads as if cutting costs is being prioritised over access to justice. In Part 5 alone there are 6 references to value for money to the taxpayer and only 2 to access to justice.”
One of the major arguments for reform is that technology could make courts run more efficiently, but district judges were sceptical about this in practice.
They said: “Judges were encouraged by the Senior Judiciary, who had been involved in early discussions, to take as a given that the revolutionary IT would be delivered and would work well. Regrettably the visible objective evidence points to the contrary. The most recent example is the much vaunted first virtual hearing in the Tax Tribunal last week that had to be abandoned due to excessive buffering and crashing.”
The submission also gave the example of Birmingham Civil and Family Justice Centre, which has had £8.1 million spent on it to make it a flagship of the Court of the Future project. “Despite this vast expense,” the documents says, “the fact remains that the majority of hearing rooms in the building including courtrooms still record proceedings on primitive cassette machines with only a minority having digital recording equipment.”
Shadow justice secretary Richard Burgon said: “Since 2010 the government has cut hundreds of courts and axed thousands of vital court staff. Any modernisation of our courts system must not be a smokescreen for more cuts and closures. But it increasingly looks like that is what is happening and this submission from judges themselves will only further fuel those fears.“
Burgon said there were “widespread concerns” that the reforms “will cause long-term damage to access to justice and that virtual courts will likely disadvantage unrepresented defendants and other vulnerable victims and witnesses.” He added that they were being pushed through with “the scantest of consultation” and should be stopped until they had been subject to full parliamentary and public scrutiny.
The judges expressed scepticism as to the quality of the research justifying the reforms. For example, they said they had “considerable doubts as to the veracity of the results” of the government’s analysis of courtrooms being underused, saying researchers had not taken into account preparation time, given that many district judges have to use the court as their office when doing paperwork.”
The association said it was more judges and not fewer courtrooms that were needed. “If there is an underutilisation of courtrooms how can the delay of many months for cases to be heard be explained? What is required are more judges to fill the courtrooms to hear the cases and clear the often significant backlogs.
“This was well illustrated by the recent ill-fated London project of block listing trials. Lots of cases were adjourned on the day through lack of time on the block listings. Orders adjourning were considered 'successful outcomes' in a blatant attempt to massage the statistics. Drawing in Deputy District Judges to run block lists took resources out of other courts which had to bump lists. This experiment has not been repeated but there has been no admission that it failed!”
Judges were very critical of assumptions made about reasonable travel time to courts for users. Previously the government said that courts should be spread so that most people could get to their local court within an hour. Now it is proposing that the benchmark could be that people are able to travel there and back in a day, which the association said “threatens the third main principle of the policy to provide access to everyone,” given the transport cost and difficulty of many cases needing to be in the middle of the day for travel reasons.
“The ADJ consider this to be a totally unacceptable benchmark,” they said. “It represents a dramatic change from the previous assurances made by HM Government as recently as 2016 that the majority of users should be able to access their local Court within an hour by public transport.”
Commenting on the government’s analysis of the travel time impacts of its court closures, the ADJ said “it is likely the analysis is cursory and inadequate” and that “simple data from Google Maps does not allow for routes to be tested in traffic or rush hour.”
The association said: “It is imperative that local judges and local practitioners should be consulted who will have first-hand experience of actual travel time rather than envisaged travel time. A cost analysis is also necessary as some train journeys may be very expensive for litigants to attend especially if this requires peak travel. If they are to be encouraged to book off peak train times are we then in a position to offer actual time slots that can be adhered to? This is unlikely so we would suggest that each travel analysis is accompanied with corresponding cost information for the different methods of travel being suggested to see if the journeys are actually realistic and feasible.”
Christina Blacklaws, president of the Law Society, said: “A modernised court service and efficient use of technology may provide benefits but must not come at the expense of justice. Nor would it be an acceptable position to close further courts before technology has been tested, evaluated and proven to work.”
She added: “It’s been widely reported in recent months that the justice system is in crisis – we’ve called for more investment particularly in legal aid for early advice which actually helps prevent problems escalating to the point people need to go to court.”
A HMCTS spokesperson said: “The Reform Programme — led and shaped jointly by the judiciary and the government — is focused on ensuring our courts and tribunals are more accessible and efficient for the people who need and use them, and we will be publishing our response to the estates consultation early next year.
“We are committed to developing our understanding of vulnerable users and ensuring all their needs are met, which is why we have employed a number of staff to assess the impact any plans will have on these groups.
“We have increased our spend, investing £1 billion in court modernisation, while overall staff numbers have remained stable and waiting times in criminal courts have decreased.
“The programme is already delivering new routes to justice including a fully accessible online Civil Money Claims service, an online divorce system and a new probate system, all of which are benefitting those who use them.”