Constitutional implications of COVID‑19

We recommend that all future risk assessments prepared by the Government, the Ministry of Justice and HMCTS consider the impact of major threats to the operation of courts and tribunals. The results of those risk assessments should be made publicly available on at least an annual basis, and include a statement of the steps that have been taken to manage the identified risks. It is essential that the operation of courts and tribunals be adequately protected as part of all future Government risk planning.

We recommend that the Government publish all papers and minutes relating to Exercise Cygnus including a statement of the actions that were taken in response to its recommendations before March 2020. Operation of courts and tribunals during the pandemic

We recommend that the Government sets out a timetable within three months for implementing the HMCTS reform programme, including a clear commitment to the funding that will be provided to ensure its prompt implementation.

We recommend that the Government ensures training and guidance is available to all judges and court staff operating virtual hearings urgently and, at the latest, by the end of 2021. It is vital that those working in courts are comfortable with the technology used for remote hearings, and that they adopt a consistent approach to its implementation and use. Missed opportunities

We recommend that the Ministry of Justice, the Home Office and police forces across England and Wales make concerted efforts to increase the use of video remand hearings as a matter of urgent priority. The Government must report to Parliament on the progress made within six months.

We recommend that the Government prepares and publishes a statement setting out : (a) the lessons it has learned from the uneven adoption of new technologies during the pandemic; (b) how these lessons will inform the future development and implementation of the HMCTS reform programme; and (c) how the Government plans to support the courts and other public services to make full and effective use of new technologies introduced in future. Access to justice

We recommend that the Government provides simple and accessible guidance for ordinary court users, available in advance of remote hearings, providing information on the technological practicalities of attending different kinds of hearing .

We recommend that the Government ensures sufficient guidance is available to all judges and court staff on how to facilitate the needs of court users and ensure procedural justice. It is vital that those working in the justice system are sufficiently equipped to cater for common challenges and to secure a fair process for all court users.

We recommend that the Government further increases the funds available for legal aid to match the reality of need. Open justice

We recommend that HMCTS sets out how it will improve the availability of information in the courts for the press and the public. This should include timely, complete, and consistent court listings (for physical and remote hearings alike), documents relating to cases (such as written arguments in appropriate cases), and free access to all court judgments. This work should be integrated with efforts to improve the collection, management, and publication of data on the courts (see Chapter 4). 8 HMCTS, ‘HMCTS annual reports and plans’, (8 October 2020): https://www.gov .uk/government/collections/hmcts-annual-reports-and-plans [accessed 2 March 2021] 9 House of Commons Library, Court Closures and Access to Justice , Debate Pack, Number CDP-0156 , 18 June 2019 10 Between 2013 and 2019, the number of staff employed by HMCTS fell by 17 per cent. See ‘Tribunals struggle as backlog of cases reaches highest level since fee abolition’, GQ Littler (26 February 2019): https://www.gqlittler.com /resources/news-and-views/tribunals-struggle-as-backlog-of-cases -reaches-highest-level-since-fee-abolition.htm [accessed 3 March 2021] 11 Ministry of Justice, ‘Legal aid statistics: July to September 2020’, (17 December 2020): https://www.gov.uk /government/statistics/legal-aid-statistics-july-to-september-2020 [accessed 1 March 2021] 12 Legal Aid, Sentencing and Punishment of Offenders Act 2012 13 Private law family cases are commonly divorce cases or disputes between parents who have split-up about who their child should live with or have contact with. Private law family cases may be contrasted with public law family cases where a local authority, or the NSPCC, steps in to protect a child on child welfare grounds. Private law family cases remain in scope in certain cases where there is documentary evidence of domestic abuse. 14 With the exception of employment-related discrimination. 15 Legal aid remains for welfare benefits appeals on a point of law to the upper tribunal and subsequent appeals, and for judicial review. 16 The proportion of cases where both parties had legal representation in private law family cases almost halved between 2013 and 2020: Ministry of Justice, Family Court Statistics Quarterly: July to September 2020 (18 December 2020): https://www.gov.uk /government/statistics/family-court-statistics-quarterly-july-to-september-2020 /family-court-statistics-quarterly-july-to-september-2020 [accessed 2 March 2021]. The number of unrepresented defendants has also increased in the Crown Court since 2013: Ministry of Justice, Unrepresented Defendants: Perceived effects on the Crown Court in England and Wales - practitioners’ perspectives (2019): https://assets.publishing.service.gov. uk/government/uploads/system/uploads/attachment_data/file/810051/unrepresented- defendants.pdf [accessed 2 March 2021] 17 Judicial College, Equal Treatment Bench Book (February 2021): https://www.judiciary.uk/wp- content/uploads/2021/02/Equal-Treatment-Bench-Book-February-2021-1.pdf [accessed 2 March 2021] 18 See, for example, Q 116 (Simon Davis, Caroline Goodwin QC ) and written evidence from Professor Gráinne McKeever ( CIC0009 ) and Dr Kate Leader ( CIC0011 ). 19 Q 116 (Derek Sweeting QC) 20 Ministry of Justice, ‘Joint letter from Lord Chief Justice of England and Wales, Senior President of Tribunals and Lord Chancellor and Secretary of State for Justice ’, (28 March 2014): https://www.judiciary.uk/wp-content /uploads/2014/03/joint-letter-to-judges-and-staff-hmcts-reform .pdf [accessed 2 March 2021] 21 HMCTS, ‘The HMCTS reform programme’, (6 February 2019): https://www.gov.uk/guidance/the -hmcts-reform-programme [accessed 2 March 2021] 22 Ministry of Justice, Transforming Our Justice System (September 2016): https://assets.publishing .service.gov.uk/government/uploads/system/uploads/attachment_data/file /553261/joint-vision-statement.pdf [accessed 1 February 2021] 23 National Audit Office, Early progress in transforming courts and tribunals (Session 2017–19, HC 1001): https://www.nao.org.uk/ wp-content/uploads/2018/05/Early-progess-in-transforming-courts-and- tribunals.pdf [accessed 1 February 2021]; Public Accounts Committee, Transforming courts and tribunals (Fifty Sixth Report, Session 2017–19, HC 976) 24 HMCTS and Ministry of Justice, Response to Public Accounts Committee: Transforming courts and tribunals (5 February 2019): https://www. gov.uk/government/news/response-to-public-accounts-committee-transforming- courts-and-tribunals [accessed January 2021] 25 Public Accounts Committee, Transforming courts and tribunals: progress review (Second Report, Session 2019, HC 27); National Audit Office, Transforming courts and tribunals: a progress update (Session 2017–19, HC 2638): https://www.nao.org .uk/wp-content/uploads/2019/09/Transforming-Courts-and-Tribunals.pdf [accessed 1 February 2021]; ‘National Audit Office challenges basis of court reforms’, Legal Futures (18 January 2021): https://www.legalfutures .co.uk/latest-news/nao-challenges-basis-of-court-reforms [accessed 1 February 2021] 26 Public Accounts Committee, Transforming courts and tribunals (Fifty-Sixth Report, Session 2017–19, HC 976); HMCTS, HMCTS online event, 15 Oct 2020: Introducing the Common Platform (14 January 2021): https:// www.gov.uk/guidance/hmcts-online-event-15-oct-2020- introducing-the-common-platform [accessed 2 March 2021] 27 National Audit Office, Transforming courts and tribunals: a progress update (Session 2017–19, HC 2638), Figure 4: https://www.nao.org.uk /wp-content/uploads/2019/09/Transforming-Courts-and-Tribunals.pdf [accessed 1 February 2021] 28 Oral evidence taken before the Public Accounts Committee on 6 June 2018 (Session 2017-19) Q 54 (Susan Acland-Hood) 29 Q 143 (Susan Acland-Hood) 30 Public Health England, Exercise Cygnus Report (2017): https://assets.publishing .service.gov.uk/government/uploads/system/uploads/attachment_data/file /927770/exercise-cygnus-report.pdf [accessed 1 February 2021] 31 HMCTS, ‘HMCTS annual reports and plans’, (8 October 2020): https ://www.gov.uk/government/collections/hmcts-annual-reports-and-plans [accessed 1 February 2021] 32 Courts and Tribunals Judiciary, Coronavirus (COVID-19) update from the Lord Chief Justice (17 March 2020) https://www.judiciary.uk/announcements/coronavirus-update-from-the -lord-chief-justice/ [accessed 1 February 2021] and HM Government, Courts during coronavirus pandemic: Robert Buckland statement , (18 March 2020): https://www.gov.uk/government/news/courts-during-coronavirus- pandemic-robert-buckland-statement [accessed 1 February 2021] 33 HMCTS, Covid-19: Overview of HMCTS response (July 2020) https://assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/896779/HMCTS368_recovery_-_COVID-19-_Overview_of_HMCTS_response_ A4L_v3.pdf [accessed 1 February 2021] 34 Written Answer HL13308 , Session 2019-21 35 Ibid. 36 Courts and Tribunals Judiciary, Coronavirus (COVID-19): Jury trials, message from the Lord Chief Justice (17 March 2020): https://www.judiciary.uk/announcements /coronavirus-jury-trials-message-from-the-lord-chief-justice/ [accessed 1 February 2021] 37 Courts and Tribunals Judiciary, Review of court arrangements due to COVID-19, message from the Lord Chief Justice (23 March 2020): https://www.judiciary.uk/ announcements/review-of-court-arrangements-due-to-covid-19-message- from-the-lord-chief-justice/ [accessed 1 February 2021] 38 Coronavirus Act 2020 39 Coronavirus Act 2020, sections 53–57 40 HM Government, HMCTS daily operational summary on courts and tribunals during coronavirus (COVID-19) outbreak (27 March 2020): https://www .gov.uk/guidance/hmcts-daily-operational-summary-on-courts-and -tribunals-during-coronavirus-covid-19-outbreak#hmcts-operational-summary-27 -march-2020 [accessed 1 February 2021] 41 Nuffield Family Justice Observatory, Remote hearings in the family justice system: a rapid consultation (May 2020): https://www.nuffieldfjo.org.uk/app/nuffield /files-module/local/documents/nfjo_remote_hearings_20200507-2-.pdf [accessed 1 February 2021] 42 The Criminal Procedure (Amendment No. 2) (Coronavirus) Rules 2020 ( SI 2020/417 (L. 12) ) 43 The Civil Justice Council and the Legal Education Foundation, The impact of Covid-19 measures on the civil justice system: Report and recommendations (May 2020): https://research.thelegaleducationfoundation.org/research-learning/ funded-research/the-impact-of-covid-19-measures-on-the- civil-justice-system-report-and-recommendations [accessed 1 February 2021] 44 Courts and Tribunals Judiciary, Jury trials to resume this month (11 May 2020): https://www.judiciary.uk/announcements/jury- trials-to-resume-this-month/ [accessed 1 February 2021] 45 The Civil Procedure (Amendment No. 2) (Coronavirus) Rules 2020 ( SI 2020/582 (L. 13) ) 46 HM Government, PM: A New Deal for Britain (30 June 2020): https://www.gov.uk/ government/news/pm-a-new-deal-for-britain [accessed 4 March 2021] 47 HMCTS, ‘Court and tribunal recovery update in response to coronavirus’, (1 July 2020): https://www.gov.uk/ government/publications/court-and-tribunal-recovery-update-in-response-to- coronavirus [accessed 1 February 2021] 48 Ministry of Justice, £50 million for legal aid sector (21 August 2020): https:// www.gov.uk/government/news/50-million-for-legal-aid- sector [accessed 1 February 2021] 49 The Right Honourable Sir Terence Etherton and The Right Honourable Robert Buckland QC MP, 124th Update: Practice Direction Amendments (21 August 2020): https://www. justice.gov.uk/courts/procedure-rules/civil/cpr-124-pd- update.pdf [accessed 1 February 2021] 50 HMCTS, COVID-19: Update on the HMCTS response for criminal courts in England & Wales (September 2020): https://assets.publishing.service.gov.uk/government/ uploads/system/uploads/attachment_data/file/915493/HMCTS401_recovery_overview_ for_crime_WEB.pdf [accessed 1 February 2021] 51 The Prosecution of Offences (Custody Time Limits) (Coronavirus) (Amendment) Regulations 2020 ( SI 2020/953 ). These regulations came into force on 28 September 2020 and have effect until 28 June 2021. 52 Courts and Tribunals Judiciary, Message from the Lord Chief Justice: latest COVID-19 restrictions (5 January 2021): https://www.judiciary.uk/ announcements/message-from-the-lord-chief-justice-latest-covid-19- restrictions/ [accessed 5 February 2021] 53 HMCTS, Crown Courts that have resumed jury trials (29 January 2021): https://www.gov .uk/government/publications/crown-courts-that-have-resumed-jury-trials [accessed 1 February 2021] 54 HMCTS, Courts and tribunals additional capacity during coronavirus outbreak: Nightingale courts , (11 March 2021): https ://www.gov.uk/guidance/courts-and-tribunals-additional-capacity-during -coronavirus-outbreak-nightingale-courts [accessed 15 March 2021] 55 Q 1 (Rt Hon Lord Burnett of Maldon) 56 Q 19 (Professor Dame Hazel Genn) 57 Courts and tribunals reported that the numbers of cases heard each day in England and Wales with the use of audio and video technology increased from under 1,000 in the last week of March 2020 to approximately 3,000 by mid-April. HMCTS, ‘Courts and tribunals data on audio and video technology use during coronavirus outbreak’, (30 April 2020): https://www.gov.uk/guidance/courts-and -tribunals-data-on-audio-and-video-technology-use-during-coronavirus-outbreak [accessed 1 February 2021] 58 Q 132 (Rt Hon Robert Buckland QC MP) 59 A cloud-based video platform is an internet-based video meeting service that works like Skype or Zoom. 60 Criminal Justice Chief Inspectors, Impact of the pandemic on the Criminal Justice System (13 January 2021): https://www.justiceinspectorates.gov.uk/ cjji/wp-content/uploads/sites/2/2021/01/2021-01-13-State-of-nation.pdf [accessed 1 February 2021] 61 Q 19 (Professor Dame Hazel Genn), Q 40 (Dr Natalie Byrom), Q 92 (Carol Storer OBE), Q 105 (Simon Davis), and Q 105 (Caroline Goodwin QC). See, also, Criminal Justice Chief Inspectors, Impact of the pandemic on the Criminal Justice System (13 January 2021): https:// www.justiceinspectorates.gov.uk/cjji/wp-content/uploads/sites/2/2021/01/2021-01-13- State-of-nation.pdf [accessed 1 February 2021] 62 Q 1 (Rt Hon Lord Burnett of Maldon) 63 Q 1 (Rt Hon Lord Burnett of Maldon). See, also, Q 19 (Professor Richard Susskind OBE). 64 Q 132 (Rt Hon Robert Buckland QC MP) 65 Written evidence from the Transparency Project ( CIC0019 ) and the Public Law Project ( CIC0038 ) 66 The Civil Justice Council and the Legal Education Foundation, The impact of Covid-19 measures on the civil justice system: Report and recommendations (May 2020): https://research.thelegaleducationfoundation.org/research-learning/funded- research/the-impact-of-covid-19-measures-on-the-civil- justice-system-report-and-recommendations [accessed 1 February 2021] 67 Q40 (Dr Natalie Byrom) 68 Q 7 (Rt Hon Lord Burnett of Maldon) 69 Written evidence from the Supreme Court of the United Kingdom ( CIC0024 ). See, also, ‘The Future of Courts’, The Practice , vol 6(5), July/August 2020: https://thepractice. law.harvard.edu/article/the-future-of-courts/ [accessed 1 February 2021] 70 Q 40 (Dr Natalie Byrom) 71 Nuffield Family Justice Observatory, Remote hearings in the family justice system : reflections and experiences: follow-up consultation (September 2020): https://www .nuffieldfjo.org.uk/app/nuffield/files-module/local/documents/remote _hearings_sept_2020.pdf [accessed 4 March 2021] 72 Written evidence from the Public Law Project ( CIC0038 ) and the Council of Her Majesty’s Circuit Judges ( CIC0039 ) 73 Nuffield Family Justice Observatory, Remote hearings in the family justice system: a rapid consultation (May 2020): https://www.nuffieldfjo.org.uk/app /nuffield/files-module/local/documents/nfjo_remote_hearings_20200507-2-.pdf [accessed 1 February 2021] 74 Written evidence from the Council of Her Majesty’s Circuit Judges ( CIC0039 ) and Q 105 (Derek Sweeting QC) 75 Written evidence from the Crown Prosecution Service ( CIC0036 ) 76 Written evidence from the Council of Her Majesty’s Circuit Judges ( CIC0039 ) 77 Ibid. 78 The Civil Justice Council and the Legal Education Foundation, The impact of Covid-19 measures on the civil justice system: Report and recommendations (May 2020): The impact of Covid- 19 measures on the civil justice system: Report and recommendations [accessed 24 August 2020] 79 Written evidence from the Public Law Project ( CIC0038 ), the Association of Chief Trading Standards Officers and National Trading Standards ( CIC0005 ) and Transport for London ( CIC0016 ) 80 Q 94 (Cris McCurley) 81 Written evidence from the Council of Her Majesty’s Circuit Judges ( CIC0039 ) 82 Q 43 (Dr Natalie Byrom) 83 Written evidence from the Council of Her Majesty’s Circuit Judges ( CIC0039 ) 84 Q 40 (Dr Natalie Byrom) 85 Written evidence from Citizens Advice Stevenage ( CIC0021 ) 86 Written evidence from the Association of Chief Trading Standards Officers and National Trading Standards ( CIC0005 ), and the Public Law Project ( CIC0038 ) 87 Written evidence from the Public Law Project ( CIC0038 ) 88 Written evidence from the Chartered Institute of Legal Executives ( CIC0025 ) 89 HMCTS, ‘Using remote hearings to maintain justice during the coronavirus pandemic’, (30 April 2020): https://insidehmcts. blog.gov.uk/2020/04/30/using-remote-hearings-to-maintain-justice- during-the-coronavirus-pandemic/ [accessed 4 March 2021] 90 HMCTS, Video Remand Hearings (31 October 2019): https://assets.publishing.service .gov.uk/government/uploads/system/uploads/attachment_data/file/844906 /Video_Remand_Hearings_handout.pptx [accessed 16 February 2021] 91 ‘HMCTS research highlights challenges of virtual justice’, Law Society Gazette (11 September 2018): https://www.lawgazette.co.uk/practice/hmcts -research-highlights-challenges-of-virtual-justice/5067497.article [accessed 4 March 2021] 92 Oral evidence taken before the Justice Committee on 1 December 2020 (Session 2019-21) Q 103 (Rt Hon Robert Buckland QC MP) 93 ‘Police forces pull support for virtual remand hearings’, Law Society Gazette (19 October 2020): https ://www.lawgazette.co.uk/news/police-forces-pull-support-for -virtual-remand-hearings/5106062.article [accessed 1 February 2021] 94 Oral evidence taken before the Justice Committee on 1 December 2020 (Session 2019-21) Q 103 (Rt Hon Robert Buckland QC MP) 95 Oral evidence taken before the Justice Committee on 12 January 2021 (Session 2019-21) Q 49 (Richard Miller) 96 Criminal Justice Chief Inspectors, Impact of the pandemic on the Criminal Justice System (13 January 2021): https://www.justiceinspectorates.gov .uk/cjji/wp-content/uploads/sites/2/2021/01/2021-01-13-State-of-nation .pdf [accessed 1 February 2021] 97 See, for example, Q 22 (Professor Richard Susskind OBE). 98 Q 109 (Derek Sweeting QC) and written evidence from Transform Justice ( CIC0001 ) and the Crown Prosecution Service ( CIC0036 ) 99 Written evidence from the Association of Chief Trading Standards Officers and National Trading Standards ( CIC0005 ), and Professor Gráinne McKeever ( CIC0009 ) 100 Q 109 (Caroline Goodwin QC), Q 109 (Derek Sweeting QC), Q 109 (Simon Davis) and written evidence from the Crown Prosecution Service ( CIC0036 ), Transform Justice ( CIC0001 ), the Association of Chief Trading Standards Officers and National Trading Standards ( CIC0005 ) and the Council of Her Majesty’s Circuit Judges ( CIC0039 ) 101 Written evidence from the Crown Prosecution Service ( CIC0036 ) 102 Written evidence from Transform Justice ( CIC0001 ) 103 Written evidence from the Sheffield ME and Fibromyalgia Group ( CIC0013 ) 104 Q 134 (Susan Acland-Hood) 105 Written evidence from the Association of Chief Trading Standards Officers and National Trading Standards ( CIC0005 ) and Q 109 (Simon Davis) 106 Written evidence from the Public Law Project ( CIC0038 ) 107 Nuffield Family Justice Observatory, Remote hearings in the family justice system: a rapid consultation (May 2020): https:// www.nuffieldfjo.org.uk/app/nuffield/files-module/local/documents/ nfjo_remote_hearings_20200507-2-.pdf [accessed 1 February 2021] 108 Written evidence from Dr Kate Leader ( CIC0011 ) 109 Q 44 (Dr Natalie Byrom) 110 Q 109 (Derek Sweeting QC) 111 Q 4 (Rt Hon Lord Burnett of Maldon), Q 110 (Derek Sweeting QC), Q 19 (Professor Dame Hazel Genn), Q 94 (Carol Storer OBE), Q 96 (Cris McCurley) and written evidence from Professor Gráinne McKeever ( CIC0009 ) and the Association of Chief Trading Standards Officers and National Trading Standards ( CIC0005 ), Q 23 (Professor Dame Hazel Genn) 112 Written evidence from the Equality and Human Rights Commission ( CIC0037 ). See, also, Q 109 (Caroline Goodwin QC) and written evidence from the Association of Chief Trading Standards Officers and National Trading Standards ( CIC0005 ). 113 Written evidence from the Council of Her Majesty’s Circuit Judges ( CIC0039 ) 114 Q 44 (Dr Natalie Byrom), Q 96 (Carol Storer OBE) and Q 106 (Derek Sweeting QC) 115 Q 94 (Cris McCurley) 116 Written evidence from Council of Her Majesty’s Circuit Judges ( CIC0039 ) 117 Written evidence from Transform Justice ( CIC0001 ) 118 Written evidence from Professor Gráinne McKeever ( CIC0009 ), a Benefits Advisor ( CIC0044 ) and Citizens Advice Stevenage ( CIC0021 ) 119 Q 134 (Rt Hon Robert Buckland QC MP) 120 Ministry of Justice, More support for those representing themselves in court (19 August 2020): https://www.gov.uk/government/news/more-support-for- those-representing-themselves-in-court [accessed 1 February 2021] 121 Written evidence from Sheffield ME and Fibromyalgia Group ( CIC0013 ) and the Crown Prosecution Service ( CIC0036 ) 122 Written evidence from Mischon de Reya LLP ( CIC0023 ) 123 Written evidence from Transform Justice ( CIC0001 ), Sheffield ME and Fibromyalgia Group ( CIC0013 ) and the Public Law Project ( CIC0038 ) 124 Q 20 (Professor Richard Susskind OBE), written evidence from the Public Law Project ( CIC0038 ), Dr Kate Leader ( CIC0011 ) and Transform Justice ( CIC0001 ) 125 Q 24 and Q 25 (Professor Dame Hazel Genn) 126 Written evidence from a Benefits Advisor ( CIC0044 ) 127 Q 42 (Dr Natalie Byrom) 128 Nuffield Family Justice Observatory, Remote hearings in the family justice system: a rapid consultation (May 2020): https://www.nuffieldfjo. org.uk/app/nuffield/files-module/local/documents/nfjo_remote_ hearings_20200507-2-.pdf [accessed 1 February 2021] 129 Q 99 (James Sandbach) 130 Q 19 (Professor Dame Hazel Genn) 131 Q 21 (Professor Dame Hazel Genn), Q99 and Q100 (Carol Storer, Cris McCurley), Q100 (James Sandbach) 132 Q 99 (Carol Storer OBE) 133 Q 100 (James Sandbach) 134 Written evidence from the Law Society of England and Wales ( CIC0028 ) 135 Q 107 (Simon Davis) 136 Q 107 (Caroline Goodwin QC) 137 The Bar Council, Whole Bar Survey July 2020: Summary of findings (27 July 2020): https://www.barcouncil.org.uk/ uploads/assets/4fb6e80c-5e2c-4cb3-859547bf9f82d946/Bar-Survey-Summary-Findings-July-2020.pdf [accessed 1 February 2021] 138 Q 107 (Derek Sweeting QC) 139 Q16 (Rt Hon Lord Burnett of Maldon) 140 Q 138 (Rt Hon Robert Buckland QC MP) 141 Ministry of Justice, More support for those representing themselves in court (19 August 2020): https://www. gov.uk/government/news/more-support-for-those-representing-themselves- in-court [accessed 1 February 2021] 142 Ministry of Justice, £50 million for legal aid sector (21 August 2020): https ://www.gov.uk/government/news/50-million-for-legal-aid -sector [accessed 1 February 2021] 143 Written evidence from Tristan Kirk ( CIC0042 ) 144 Written evidence from the Public Law Project ( CIC0038 ) and Transform Justice ( CIC0001 ), and Q 40 (Dr Natalie Byrom) 145 Written evidence from Tristan Kirk ( CIC0042 ) 146 Written evidence from Transform Justice ( CIC0001 ) 147 The Civil Justice Council and the Legal Education Foundation, The impact of Covid-19 measures on the civil justice system: Report and recommendations (May 2020): https://research.thelegaleducationfoundation.org/research-learning/funded-research/the -impact-of-covid-19-measures-on-the-civil-justice-system -report-and-recommendations [accessed 1 February 2021] 148 Q 40 and Q 45 (Dr Natalie Byrom) 149 Written evidence from the Transparency Project ( CIC0019 ) 150 Written evidence from the Public Law Project ( CIC0038 ) 151 Written evidence from Tristan Kirk ( CIC0042 ) 152 Ibid. < Back Next > © Parliamentary copyright 2021 A-Z index Glossary Contact us Freedom of Information Jobs Using this website Copyright Privacy notice Cookie policy Cookie Manager House of Lords - COVID-19 and the Courts - Select Committee on the Constitution Accessibility Email alerts RSS feeds Contact us Home Parliamentary business MPs, Lords & offices About Parliament Get involved Visiting Education House of Commons House of Lords What's on Bills & legislation Committees Publications & records Parliament TV News Topics You are here: Parliament home page > Parliamentary business > Publications and Records > Committee Publications > All Select Committee Publications > Lords Select Committees > Constitution > Constitution COVID-19 and the Courts Contents Chapter 3: Managing the backlog

We recommend that the Government provides the assistance and funding necessary to ensure that: (a) all cases in the Crown Court are tried within one year of the plea and trial preparation hearing; and (b) the average time from charge to disposal in the magistrates’ courts falls to 8 weeks or fewer. The Government should also report to Parliament annually on the progress made in respect of both matters.

We recommend that the Government reports to Parliament by the end of 2021 on the steps it will take to reduce the proportion of children on remand in custody. Depriving a child of liberty should always be a last resort and for the shortest possible time. Alternatives to custody, such as enhanced monitoring arrangements, should be utilised wherever possible.

We recommend that any further extension to custody time limits be scrutinised and debated by Parliament before taking legal effect. The extension of custody time limits is a significant policy decision with serious implications for the right to liberty and the rule of law. Adequate Parliamentary scrutiny and debate is essential for a change of such fundamental constitutional importance to take effect. Civil courts and tribunals

We recommend that the Government explores additional ways to reduce the backlog in the family courts as a matter of urgent priority. Additional funding for temporary courtrooms in suitable buildings, greater use of retired and part-time judges, and greater use of alternative dispute resolution would help to reduce the backlog in the family courts (see further paragraphs 208 – 214 and 234 – 239 ). The Employment Tribunal

We recommend that the Government sets out detailed plans for reducing the backlog of criminal, family, and employment cases, including a timeline for implementation. Ineffective use of new real estate

We recommend that the Government be required to explain precisely how they are using the Nightingale courtrooms, how many cases are being heard in each of these new venues, and the factors it takes into account when identifying new venues for additional Nightingale courtrooms. Health and safety

We recommend that further funding be made available to HMCTS to significantly increase the number of Nightingale courtrooms open by the end of 2021. An increase in sitting days

We recommend that HMCTS facilitates and encourages greater use of alternative dispute resolution in appropriate civil cases, subject always to the condition that access to justice is secured through its use. Data-driven solutions

We recommend that the Government sets out clear plans, both short-term and long-term, for addressing the backlog in all jurisdictions, along with timelines and targets for implementation. Clarity is necessary to facilitate scrutiny of the adequacy of the Government’s response and to restore faith in the justice system. 153 Criminal Justice Chief Inspectors, Impact of the pandemic on the Criminal Justice System (13 January 2021): https ://www.justiceinspectorates.gov.uk/cjji/wp-content/uploads/sites/2/2021/01/2021-01-13 -State-of-nation.pdf [accessed 1 February 2021] and Crest Advisory, ‘Impact and legacy of Covid-19 on the CJS: Modelling overview’, (30 October 2020): https://www.crestadvisory.com/post /a-perfect-storm-why-the-criminal-justice-system-is-facing -an-existential-crisis [accessed 17 February 2021] 154 HMCTS, ‘HMCTS weekly management information during coronavirus: March 2020 to February 2021’, (11 March 2021): https://www.gov.uk/government/statistical-data -sets/hmcts-weekly-management-information-during-coronavirus-march-2020-to -february-2021 [accessed 15 March 2021] 155 This is the number of outstanding cases across magistrates’ courts and the Crown Court awaiting disposal. As at 21 February 2021 the Crown Court backlog was 56,875 and the magistrates’ courts backlog was 476,932: HMCTS, ‘HMCTS weekly management information during coronavirus: March 2020 to February 2021’, (11 March 2021): https://www.gov.uk /government/statistical-data-sets/hmcts-weekly-management-information-during-coronavirus -march-2020-to-february-2021 [accessed 15 March 2021] 156 Total number of outstanding cases across both the Crown and magistrates’ court as at 21 February 2021 was reported to be 533,807. That figure was 435,856 on 8 March 2020: HMCTS, ‘HMCTS weekly management information during coronavirus: March 2020 to February 2021’, (11 March 2021): https://www.gov.uk/government /statistical-data-sets/hmcts-weekly-management-information-during-coronavirus-march -2020-to-february-2021 [accessed 15 March 2021] 157 The Crown Court backlog had previously peaked at 55,116 in 2014. The current Crown Court backlog is the highest on recent record: HMCTS, ‘Criminal court statistics quarterly: January to March’, 2020 (25 June 2020), Table C1: https://assets.publishing.service.gov .uk/government/uploads/system/uploads/attachment_data/file/897716/ccsq _tables_jan_mar_2020.ods [accessed 4 February 2021]; HMCTS, ‘HMCTS weekly management information during coronavirus: March 2020 to February 2021’, (11 March 2021): https://www.gov.uk/government/statistical -data-sets/hmcts-weekly-management-information-during-coronavirus-march-2020-to-february-2021 [accessed 15 March 2021] 158 All new jury trials were suspended on 23 March 2020 and a limited number resumed on 18 May 2020. 159 In October 2020 the Criminal Bar Association estimated that there were around 120 trials with seven or more defendants—including violent crime and organised criminal activity—that were too large to be accommodated in existing court real estate: ‘Courts backlog ‘tipping point’ for justice system’, BBC News (30 October 2020): https://www.bbc.co.uk/news/uk-54737289 [accessed 17 February 2021] 160 HMCTS, ‘HMCTS weekly management information during coronavirus: March 2020 to February 2021’, (11 March 2021): https:// www.gov.uk/government/statistical-data-sets/hmcts-weekly-management- information-during-coronavirus-march-2020-to-february-2021 [accessed 15 March 2021] 161 Q 7 (Rt Hon Lord Burnett of Maldon) 162 That figure is not intended to represent the actual number of outstanding cases, but instead to facilitate a like-for-like comparison of outstanding jury trials before and after the pandemic. The Chartered Institute of Public Finance and Accountancy and the Institute for Government, Performance Tracker 2020: how public services have coped with coronavirus (2 November 2020): https:// www.instituteforgovernment.org.uk/sites/default/files/publications/performance-tracker- 2020.pdf [accessed 4 February 2021] and oral evidence taken before the Justice Committee on 12 January 2021 (Session 2019-21), Q 9 (Thomas Pope) 163 Oral evidence taken before the Justice Committee on 12 January 2021 (Session 2019-21), Q 106 (Rt Hon Robert Buckland QC MP) and ‘Law in Action’, BBC Sounds (2 March 2021): https://www.bbc.co.uk/sounds/ play/m000sqlf [accessed 4 March 2021] 164 Examples from the London Criminal Courts Solicitors’ Association of delayed cases, such as an alleged offences committed in 2018 being listed for trial in 2022, can be found in: ‘Covid leading to four-year waits for England and Wales court trials’, The Guardian (10 January 2021): https://www.theguardian.com/law/2021/jan/ 10/covid-leading-to-four-year-waits-for-england-and- wales-court-trials [accessed 17 February 2021] 165 This model assumed court capacity dropping by 90% in March 2020 and recovering to 2019 levels over 12 months after September 2020. Further information about the assumptions made is set out in Crest Advisory, Assumptions : A perfect storm: why the criminal justice system is facing an existential crisis (30 October 2020): https ://www.crestadvisory.com/post/assumptions-a-perfect-storm-why-the -criminal-justice-system-is-facing-an-existential-crisis [accessed 17 February 2021] 166 Crest Advisory, Impact and legacy of Covid -19 on the CJS: Modelling overview (30 October 2020): https ://www.crestadvisory.com/post/a-perfect-storm-why-the-criminal -justice-system-is-facing-an-existential-crisis [accessed 1 February 2021] 167 ‘‘Armageddon scenario’: Government warned justice could be derailed by 200,000 court backlog in four years’, London Evening Standard , 30 October 2020: https://www.standard.co.uk/news/uk /crown-court-backlog-ministry-justice-cases-armageddon-criminal-b28872.html [accessed 17 February 2021] 168 Crest Advisory, Assumptions: A perfect storm: why the criminal justice system is facing an existential crisis (30 October 2020): https://www.crestadvisory.com/post/assumptions -a-perfect-storm-why-the-criminal-justice-system-is-facing -an-existential-crisis [accessed 17 February 2021] 169 ‘The Times view on the backlog of criminal trials: Speed of Justice’, The Times , 20 August 2020: https://www.thetimes.co.uk /article/the-times-view-on-the-backlog-of-criminal-trials -speed-of-justice-qw3bkqfgm [accessed 17 February 2020] 170 HMCTS, COVID-19: Update on the HMCTS response for criminal courts in England & Wales (7 September 2020): https://assets.publishing.service .gov.uk/government/uploads/system/uploads/attachment_data/file/915493 /HMCTS401_recovery_overview_for_crime_WEB.pdf [accessed 16 February 2021] 171 HM Government, ‘HMCTS weekly management information during coronavirus: March 2020 to February 2021’, (11 March 2021): https://www .gov.uk/government/statistical-data-sets/hmcts-weekly-management-information -during-coronavirus-march-2020-to-february-2021 [accessed 15 March 2021] 172 The average time from charge to disposal increased from 7.4 weeks in March 2020 to 14.0 weeks in November 2020: HMCTS, ‘HMCTS management information: December 2019-December 2020’, (11 February 2021): https://www.gov.uk/government/statistical-data -sets/hmcts-management-information-december-2020 [accessed 16 February 2021] 173 HMCTS, Covid-19: Update on the HMCTS response for criminal courts in England and Wales (1 September 2020), para 5.12 https://assets.publishing.service.gov.uk/government/uploads/system /uploads/attachment_data/file/915493/HMCTS401_recovery_overview_for_crime _WEB.pdf 174 The Chartered Institute of Public Finance and Accountancy and the Institute for Government, Performance Tracker 2020: how public services have coped with coronavirus (2 November 2020): https ://www.instituteforgovernment.org.uk/sites/default/files/publications/performance-tracker -2020.pdf [accessed 4 February 2021] 175 Ministry of Justice, Criminal Statistics quarterly, England and Wales, October 2019 to September 2020 (18 February 2021): https://assets.publishing.service.gov.uk /government/uploads/system/uploads/attachment_data/file/962357/criminal-justice -statistics-quarterly-sept-2020.pdf [accessed 5 March 2021] 176 The figure for men and women refers to those aged 18 and above. National Statistics, Offender management statistics quarterly: July to September 2020 (28 January 2021): https://www.gov.uk /government/statistics/offender-management-statistics-quarterly-july-to-september-2020 [accessed 17 February 2021] 177 The statistics refer to children aged between 15 and 17 held in prisons, police cells, Secure Children’s Homes or Secure Training Centres: Statistics, Offender management statistics quarterly: July to September 2020 (28 January 2021): https://www.gov.uk/government/statistics/offender-management-statistics-quarterly-july-to-september-2020 [accessed 17 February 2021] 178 Howard League for Penal Reform, Ending the detention of unsentenced children during the Covid-19 pandemic: A guide for practitioners (May 2020): https://howardleague.org/wp-content/uploads/2020/11/ Ending-the-detention-of-unsentenced-children-during-the-Covid-19- pandemic.pdf [accessed 12 March 2021] 179 Ministry of Justice and the Youth Justice Board, Youth Justice Statistics 2019/20 (England and Wales) (28 January 2021): https://assets.publishing.service.gov .uk/government/uploads/system/uploads/attachment_data/file/956621/youth -justice-statistics-2019-2020.pdf [accessed 12 March 2021] 180 Those aged 18 and under. 181 Her Majesty’s Prison and Probation Service, Youth Custody Data (12 March 2021): https://www .gov.uk/government/statistics/youth-custody-data [accessed 12 March 2021] 182 Written evidence from the Howard League for Penal Reform ( CIC0485 ) 183 Ibid. 184 The Prosecution of Offences (Custody Time Limits) (Coronavirus) (Amendment) Regulations 2020 ( SI 2020/953 ). These regulations were subject to the negative procedure and came into force on 28 September 2020. They have effect until 28 June 2021. The regulations temporarily extend the custody time limit: (a) from 182 days to 238 days for all triable either-way and indictable only criminal offences awaiting trial on indictment at the Crown Court; and (b) from 56 days to 168 days where a voluntary bill of indictment is preferred or a fresh trial has been ordered by the Court of Appeal. The extension of the maximum custody period initially applied to all defendants, but was amended in February 2021 to exclude defendants under the age of 18. 185 Explanatory Memorandum to The Prosecution of Offences (Custody Time Limits) (Coronavirus ) (Amendment) Regulations 2020 186 The regulations extending custody time limits were laid under the negative procedure (under s.29 of the Prosecution of Offences Act 1985 ). The negative procedure is a type of parliamentary procedure whereby secondary legislation becomes law on a day designated by a Minister and automatically remains law unless a motion to reject it is agreed by either House within 40 sitting days. The regulations extending custody time limits became law before they were laid before Parliament and came into force 21 days later. 187 Written evidence from the Howard League for Penal Reform ( CIC0485 ) 188 Q 27 (Professor Richard Susskind OBE) 189 Q 7 (Rt Hon Lord Burnett of Maldon) 190 HMCTS, Covid-19: Overview of HMCTS Recovery for Civil and Family Courts and Tribunals (November 2020): https://assets.publishing.service.gov.uk/government/uploads/system /uploads/attachment_data/file/932496/HMCTS_CFT_Recovery_Plan_v2b .pdf [accessed 3 March 2021] 191 ‘Remote hearing success means no backlog in some family courts’, Legal Futures (15 October 2020): https://www.legalfutures.co.uk/latest-news/remote-hearing -success-means-no-backlog-in-some-family-courts [accessed 25 March 2021] 192 HMCTS, ‘HMCTS weekly management information during coronavirus : March 2020 to February 2021’, (11 March 2021): https://www .gov.uk/government/statistical-data-sets/hmcts-weekly-management-information -during-coronavirus-march-2020-to-february-2021 [accessed 15 March 2021] 193 Private law family cases are commonly divorce cases or disputes between parents who have split-up about who their child should live with or have contact with. Public law family cases are typically child protection cases where a local authority, or the NSPCC, steps in on child welfare grounds. 194 HMCTS, Covid-19: Overview of HMCTS Recovery for Civil and Family Courts and Tribunals (November 2020): https://assets .publishing.service.gov.uk/government/uploads/system/uploads/attachment_data /file/932496/HMCTS_CFT_Recovery_Plan_v2b.pdf [accessed 3 March 2021] 195 Family Justice Board (Private Law Advisory Group), Final Report (9 December 2020), p.8: https://www.judiciary .uk/wp-c ontent/uploads/2020/12/Private-Law-Advisory-Group-Report -Dec-2020.pdf [accessed 4 February 2021] 196 Written evidence from Council of Her Majesty’s Circuit Judges ( CIC0039 ) 197 Family Justice Board (Public Law Advisory Group), Final Report (9 December 2020), p.8: https://www.judiciary.uk/wp-content /uploads/2020/12/Public-Law-Advisory-Group-Report-Dec-2020.pdf [accessed 4 February 2021] 198 Ibid. 199 Written Answer HL13308 , Session 2019-21 200 Combining single and multiple claims: HMCTS, ‘HMCTS weekly management information during coronavirus: March 2020 to February 2021’, (11 March 2021): https:// www.gov.uk/government/statistical-data-sets/hmcts-weekly-management- information-during-coronavirus-march-2020-to-february-2021 [accessed 15 March 2021] 201 HMCTS, ‘HMCTS management information: December 2019-December 2020’, (11 February 2021): https://www.gov.uk/government/statistical- data-sets/hmcts-management-information-december-2020 [accessed 16 February 2021] 202 A typical claim brought by an individual against his/her employer claiming breach of employment rights is called a ‘single’ claim. Other claims to employment tribunals come from individuals involved in collective workplace disputes – two or more workers bringing claims against a common employer or, occasionally, employers. 203 Written answer 123733 Session 2019–21 204 Citizens Advice, Tribunal trouble: how a backlogged tribunal system is stopping people enforcing their rights (22 October 2020): https://www. citizensadvice.org.uk/Global/CitizensAdvice/Work%20Publications/FINAL%20Tribunal%20trouble_% 20How%20a%20backlogged%20tribunal%20system%20is%20stopping%20people%20enforcing%20their% 20rights.pdf [accessed 4 February 2021] 205 On 5 June 2020, the stay was extended until 23 August 2020. On 21 August 2020, the ban was extended again to 20 September 2020: Ministry of Housing, Communities & Local Government, Government support available for landlords and renters reflecting the current coronavirus (Covid- 19) outbreak (28 March 2020): https://www.gov.uk/government/ publications/covid-19-and-renting-guidance-for-landlords-tenants-and- local-authorities [accessed 1 February 2021]; Ministry of Housing, Communities & Local Government, Ban on evictions extended by 2 months to further protect renters (5 June 2020): https://www.gov.uk/ government/news/ban-on-evictions-extended-by-2-months-to- further-protect-renters [accessed 1 February 2021]; The Right Honourable Sir Terence Etherton and The Right Honourable Robert Buckland QC MP, 124th Update: Practice Direction Amendments (21 August 2020): https:// www.justice.gov.uk/courts/procedure-rules/civil/cpr-124- pd-update.pdf [accessed 1 February 2021] 206 House of Commons Library, Coronavirus: Support for landlords and tenants, Briefing Paper, Number 08868, 10 January 2021 207 Written Answer HL11552 , Session 2019-2021 208 Q 103 (James Sandbach) 209 Ministry of Justice, Mortgage and landlord possession statistics: October to December 2020 (11 February 2021): https://www.gov.uk/government/statistics/mortgage-and -landlord-possession-statistics-october-to-december-2020/mortgage-and-landlord -possession-statistics-october-to-december-2020 [accessed 4 March 2021] 210 HMCTS, Two more Nightingale courts open (28 January 2021): https://www.gov.uk/government/news/two-more-nightingale-courts -open [accessed 1 February 2021] 211 Letter from Robert Buckland QC MP to Baroness Taylor of Bolton, 16 February 2021: https://committees.parliament.uk/publications/5263/documents/52655/default/ 212 HMCTS, Two more Nightingale courts open (28 January 2021): https ://www.gov.uk/government/news/two-more-nightingale-courts-open [accessed 1 February 2021] 213 Letter from the Rt Hon Robert Buckland QC MP to Sir Robert Neill MP, 20 January 2021: https://committees.parliament.uk/publications/4488/documents/45136 /default/ 214 HMCTS, Two more Nightingale courts open (28 January 2021): https://www.gov.uk/government/news/two-more-nightingale -courts-open [accessed 1 February 2021] 215 Letter from Robert Buckland QC MP to Baroness Taylor of Bolton, 16 February 2021: https://committees.parliament.uk/publications/5263/documents/52655/default / 216 HMCTS, More courts to speed up justice (17 February 2021): https://www.gov.uk/government/news/more-courts-to -speed-up-justice [accessed 18 February 2021] 217 HMCTS, Two more Nightingale courts open (28 January 2021): https://www.gov .uk/government/news/two-more-nightingale-courts-open [accessed 1 February 2021] 218 HMCTS, HMCTS weekly operational summary on courts and tribunals during coronavirus (COVID-19) outbreak (15 February 2021): https://www. gov.uk/guidance/hmcts-weekly-operational-summary-on-courts-and- tribunals-during-coronavirus-covid-19-outbreak [accessed 17 February 2021] 219 Q 139 (Rt Hon Robert Buckland QC MP) 220 The High Court of Justice, Lucima v CCC and DPP v Woolwich [2020] EWHC 3243 , [21] 221 Letter from the Rt Hon Robert Buckland QC MP to Sir Robert Neill MP, 20 January 2021: https://committees.parliament.uk/publications/4488 /documents/45136/default/ 222 HMCTS, COVID-19: Update on the HMCTS response for criminal courts in England & Wales (7 September 2020), Figure 4, page 7: https://assets.publishing.service.gov .uk/government/uploads/system/uploads/attachment_data/file/915493/HMCTS401 _recovery_overview_for_crime_WEB.pdf [accessed 16 February 2021] 223 Letter from the Rt Hon Robert Buckland QC MP to Sir Robert Neill MP, 20 January 2021: https://committees .parliament.uk/publications/4488/documents/45136/default/ 224 ‘Justice minister accused over Nightingale courts’, The Times , 20 August 2020: https ://www.thetimes.co.uk/article/justice-minister-accused-over-nightingale -courts-8c2pxm52v [accessed 1 February 2021] 225 Ibid. 226 Written Answer HL11500 , Session 2019-21 227 Written Answer HL11501 , Session 2019-21 228 HMCTS, More courts to speed up justice (17 February 2021): https://www.gov.uk/government/news/more-courts-to -speed-up-justice [accessed 18 February 2021] 229 HM Government Guidance, ‘Courts and tribunals additional capacity during coronavirus outbreak: Nightingale courts’, (3 March 2021): https://www.gov.uk/guidance/courts -and-tribunals-additional-capacity-during-coronavirus-outbreak-nightingale-courts#history [accessed 5 March 2021] 230 Courts and Tribunals Judiciary of England and Wales, Message from the Lord Chief Justice: latest COVID-19 restrictions , 5 January 2021: https://www.judiciary.uk /announcements/message-from-the-lord-chief-justice-latest-covid-19 -restrictions/ [accessed 5 February 2021] 231 Written answer, 135923 Session 2019–21 232 The Law Society of England and Wales, Urgent action call for courts as COVID safety fears grow (15 January 2021): https://www.lawsociety. org.uk/contact-or-visit-us/press-office/press-releases/ urgent-action-call-for-courts-as-covid-safety-fears-grow [accessed 1 February 2021] 233 London Criminal Courts Solicitors’ Association, LCCSA call for action during major incident in London (12 January 2021): https://www.lccsa.org.uk/wp-content/uploads/ 2021/01/LCCSA-call-for-action-during-state-of-emergency-210112. pdf [accessed 1 February 2021] 234 Oral evidence taken before the Justice Committee on 19 January 2021 (Session 2019-21), Q 266 (Kevin McGinty) 235 HC Deb, 20 January 2021, col 974 236 Q 115 (Simon Davis) 237 Written evidence from the Law Society of England and Wales ( CIC0028 ) 238 Ibid. 239 Q 115 (Caroline Goodwin QC) 240 Q 142 (Rt Hon Robert Buckland QC MP) 241 Q 142 (Susan Acland-Hood) 242 ‘Plans for extended court opening hours are put on hold’, The Times (11 February 2021): https:// www.thetimes.co.uk/article/plans-for-extended-court-opening- hours-are-put-on-hold-g2crtx0mj [accessed 4 March 2021] 243 This model assumes court capacity dropping by 90% in March 2020 and recovering to 2019 levels over 12 months after September 2020. Further information about the assumptions made see: Crest Advisory, Assumptions: A perfect storm: why the criminal justice system is facing an existential crisis (30 October 2020): https:// www.crestadvisory.com/post/assumptions-a-perfect-storm-why-the- criminal-justice-system-is-facing-an-existential-crisis [accessed 17 February 2021] 244 Q 8 (Rt Hon Lord Burnett of Maldon) 245 Ministry of Justice, Judicial Mandatory Retirement Age: Response to Consultation (8 March 2021): https://assets.publishing.service.gov. uk/government/uploads/system/uploads/attachment_data/file/967234/judicial- mandatory-retirement-age-consultation-response.pdf [accessed 11 March 2021] 246 ‘Lord Carloway backs plans for use of remote juries in High Court cases’, Holyrood (14 August 2020): https://www. holyrood.com/news/view,lord-carloway-backs-plans-for-use- of-remote-juries-in-high-court-cases [accessed 4 March 2021] 247 JUSTICE, ‘JUSTICE COVID-19 response’,: https://justice.org. uk/our-work/justice-covid-19-response/ [accessed 4 March 2021] 248 JUSTICE, JUSTICE pilots first ever worldwide virtual mock jury trial (April 2020): https://justice.org.uk/wp-content /uploads/2020/04/JUSTICE-mock-virtual-trial-press-release.pdf [accessed 4 March 2021] 249 ‘Law in Action’, BBC Sounds (2 March 2021): https://www.bbc.co.uk/sounds/play/m000sqlf [accessed 4 March 2021] 250 Q 48 (Dr Natalie Byrom), Q 24 (Professor Richard Susskind OBE) and written evidence from the Sheffield ME and Fibromyalgia Group ( CIC0013 ) and the Employment Lawyers Association ( CIC0027 ) 251 Written evidence from the Law Society of Scotland ( CIC0033 ), the Lord Chief Justice of England and Wales ( CIC0045 ) and the Criminal Cases Review Commission ( CIC0051 ) 252 ‘Call for trials without juries amid fear that crisis will put criminals on streets’, The Times (20 August 2020): https ://www.thetimes.co.uk/article/call-for-trials-without-juries -amid-fear-that-crisis-will-put-criminals-on-streets-qk93vdttf [accessed 17 February 2021] 253 ‘Lady Hale: Rethinking The Courts’, BBC Sounds (22 June 2020): https://www.bbc.co.uk /programmes/p08hg5q1 [accessed 17 February 2021] 254 ‘Call for trials without juries amid fear that crisis will put criminals on streets’, The Times (20 August 2020): https://www.thetimes.co .uk/article/call-for-trials-without-juries-amid-fear-that -crisis-will-put-criminals-on-streets-qk93vdttf [accessed 17 February 2021] 255 Q 9 (Rt Hon Lord Burnett of Maldon) 256 Q 9 (Rt Hon Lord Burnett of Maldon) 257 ‘Coronavirus: Cut jury size to clear courts backlog: Labour’, BBC News (27 January 2021): https://www.bbc.co.uk/news/uk-politics-55813636 [accessed 1 February 2021] 258 This argument is put forward, but not endorsed, in: ‘The Times view on the backlog of criminal trials: Speed of Justice’, The Times (20 August 2020): https://www.thetimes. co.uk/article/the-times-view-on-the-backlog-of- criminal-trials-speed-of-justice-qw3bkqfgm [accessed 18 February 2021] 259 Q 102 (Cris McCurley) 260 Written evidence from Council of Her Majesty’s Circuit Judges ( CIC0039 ) 261 Q 102 (James Sandbach) 262 Written evidence from the Law Society of England and Wales ( CIC0028 ) 263 Q 115 (Derek Sweeting QC) 264 Q 102 (Carol Storer OBE) 265 Q 141 and Q 184 (Rt Hon Robert Buckland QC MP) 266 HL Deb, 26 January 2021, col 1517 267 Written evidence from the Employment Lawyers Association ( CIC0027 ) 268 Ibid. 269 Q 24 (Professor Richard Susskind OBE) 270 Q 40 (Dr Natalie Byrom) and written evidence from the Employment Lawyers Association ( CIC0027 ) < Back Next > © Parliamentary copyright 2021 A-Z index Glossary Contact us Freedom of Information Jobs Using this website Copyright Privacy notice Cookie policy Cookie Manager House of Lords - COVID-19 and the Courts - Select Committee on the Constitution Accessibility Email alerts RSS feeds Contact us Home Parliamentary business MPs, Lords & offices About Parliament Get involved Visiting Education House of Commons House of Lords What's on Bills & legislation Committees Publications & records Parliament TV News Topics You are here: Parliament home page > Parliamentary business > Publications and Records > Committee Publications > All Select Committee Publications > Lords Select Committees > Constitution > Constitution COVID-19 and the Courts Contents Chapter 4: Data in the courts system

We recommend that HMCTS sets out what steps it will take to catalogue available courts data, including clear timelines for making appropriate data available to the general public. Experiences of non-professional users

We recommend that HMCTS prioritises the collation of data that will enable it to identify, and the public to scrutinise, the effects of the increased use of digital technology on non-professional court users.

We recommend that HMCTS sets out its strategy by the end of 2021 for analysing: (a) how different categories of individuals use courts and tribunals and (b) what barriers to access there are for non-professional users.

We recommend that the Government prepares and publishes a statement setting out: (a) the lessons it has learned from the uneven adoption of new technologies during the pandemic; (b) how these lessons will inform the future development and implementation of the HMCTS reform programme; and (c) how the Government plans to support the courts and other public services to make full and effective use of new technologies introduced in future.

We recommend that the Government sets out how it is responding to the fact that court delays appear to have resulted in a reduction in prosecutions and convictions.

We recommend that the Government considers how alternatives to litigation might be implemented to alleviate the volume of housing repossession cases awaiting disposal in the courts.

We recommend that measures to address the backlog be demonstrably effective, well-funded and implemented urgently. Actions taken to reduce the backlog must also be manageable for those working in the justice system, including judges, court staff and legal professionals.

We recommend that the Government takes additional steps to encourage and facilitate remote hearings, especially when the risk of infection is at its highest. The decline in the use of the Cloud Video Platform suggests a missed opportunity to keep court users safe by holding more hearings remotely.

We recommend that the Government further increases the number of sitting days, particularly in the Crown, magistrates’ and family courts and in employment tribunals.

We recommend that the Government takes additional steps to further enhance judicial capacity. Shortages in the number of available judges could be alleviated through greater use of recorders in the Crown Court and further investment in the recruitment and training of new judges.

We recommend that HMCTS sets out plans for implementing each of the Byrom recommendations that it has accepted, the steps that will be taken, and the timeline for doing so.

We recommend that the Ministry of Justice sets out in greater detail its plans for data reform across the courts service, specifying the short- and longer-term projects that will be implemented to enhance the collection, analysis and publication of courts data.

We recommend that HMCTS sets out its plans for collecting the 13 data points identified by Dr Natalie Byrom for assessing the vulnerability of court users. This should include a clear commitment to collecting this data across all court services, both physical and digital, within specified timeframes.

We recommend that HMCTS sets out specific deadlines and targets for the collection, evaluation and publication of data on the protected characteristics of court users.

We recommend that HMCTS collects data on remote hearings and corresponding case outcomes so that the effects of remote hearings can be analysed and published.

We recommend that the Government continues to invest in and develop the technology for remote hearings and the guidance to support it, learning from its use during the pandemic. There should be an ongoing process of engaging with researchers and the legal sector to ensure that access to justice is secured during the development and implementation of technology to facilitate remote hearings.

Despite the restrictions imposed in response to the COVID-19 pandemic, the efforts of staff from across Parliament and the members of the House of Lords Commission and Procedure and Privileges Committee ensured that the House of Lords continued fulfilling its constitutional role so far as circumstances permitted. We commend everyone involved.

We welcome the continued engagement by members of the House of Lords with pupils at a time when many other activities and services have been postponed or cancelled, and young people have had so much disruption to their education. We trust the House will continue to develop its important work in this area, particularly as the restrictions introduced in response to the COVID-19 pandemic are eased.

While it is important for the Government to keep the public informed during the COVID-19 pandemic, the Government must adhere to the Ministerial Code and prioritise Parliament when making significant policy announcements, on the pandemic and more generally. Only then can Parliament’s centrality in holding the Government to account be respected. All concerned, including those responsible in Parliament, must continue to take steps to uphold this important principle.

The high volume of statutory instruments laid in response to the pandemic, and the use of fast-track procedures, have severely limited Parliament’s ability to scrutinise significant powers. The blurring of legislation and guidance undermined public understanding of the rules. We will consider this further in our third report into the constitutional implications of COVID-19, on the use and scrutiny of emergency powers.

We acknowledge the challenges faced by the Government in responding to the increased number of questions for written answer during the pandemic, but this does not justify poor, partial or non-answers, which was a concern before the pandemic. It is incumbent on the Government to ensure that departments are adequately resourced to respond fully to questions, including by providing information beyond that already in the public domain, in a timely manner. Doing so is an important part of ministers’ accountability to Parliament.

The hybrid procedures during a bill’s committee stage would benefit from further review.

The changes to House of Lords procedures as a result of hybrid proceedings, particularly the loss of spontaneity in members’ interactions during a bill’s committee stage and the need for speakers lists on more business, has resulted in the House’s essential scrutiny role, including its capacity to hold the Government to account, which was already in need of strengthening, becoming less effective. We consider that this presents significant problems for both members and ministers.

We note that before the pandemic the number of members wishing to participate in some items of business, particularly questions and debates, meant that it was not always possible for every member who wanted to contribute to do so. There were also instances of regrettably short speaking times in debates. It might be that hybrid proceedings have simply exacerbated underlying issues, including occasions when members who have significant expertise in a matter not having an opportunity to make a meaningful contribution. Speaking times of one or two minutes per backbencher, which has sometimes occurred during COVID-19, do not allow members to make a meaningful contribution.

It may be necessary for alternative approaches to be considered, particularly if some debates continue to be over-subscribed after the House emerges from COVID-19. This could include introducing a limit on the number of speakers and minimum speaking times for certain items of business.

Notwithstanding the limitations of hybrid proceedings, they are a necessary solution to maintaining business continuity while a significant number of members are unable to attend the House of Lords in person. We welcome the benefits remote proceedings have brought for members with disabilities, health concerns or caring responsibilities, or who are geographically distant.

Whatever members’ views on the merits of retaining remote voting in the longer-term, the introduction of this facility in the House of Lords during the pandemic has been successful in allowing all members to continue participating in divisions.

As Parliament emerges from COVID-19, the House of Lords should reflect on its experiences during the pandemic and consider how it can fulfil its role more effectively once things return to ‘normal’, including responding to forthcoming challenges.

The experience of the House of Lords during the COVID-19 pandemic has drawn attention to pre-existing issues regarding its size, self-regulation and the ability of members to participate in proceedings.

As a first step, and following the experience of hybrid proceedings and remote voting, the House must carefully consider what form the proceedings of the House should take after COVID-19.

As a next step, we hope the Procedure and Privileges Committee will publish draft proposals for further debate, before the House is invited to make a final decision.

We recommend that those considerations should take into account any impact on the effectiveness of the House in discharging its constitutional roles of scrutinising legislation and holding the Government to account, public perception, inclusivity and business continuity. It will also be important to consider what the longer -term consequences of any changes to proceedings might be for the overall dynamic of the House of Lords.

House of Lords select committees have operated effectively during the pandemic and the value of their work has been underlined. At a time of profound national reflection prompted by COVID-19, the expertise and longer- term perspective of the House’s committees will further enhance their role in holding the Government to account and engaging with the public as the UK emerges from the pandemic. We recommend that committees should continue to allow virtual participation by members and witnesses, where appropriate, including to receive evidence from a more diverse range of witnesses from across the UK and abroad, and should receive the necessary resources to fulfil their role to full effect.

It is regrettable that the potential impact of social-distancing requirements to tackle a pandemic had not been considered in Parliament’s business continuity planning. We note that such an omission was not unique to Parliament; many other organisations faced the same dilemma of operating in a different manner without any plans for doing so being in place. We recommend the House of Lords Commission conducts a lessons-learned exercise on Parliament’s response to the pandemic as part of revising its business continuity plans. In doing so it should seek input from members and take into account the importance of Parliament continuing to hold the Government to account whatever the circumstances.

We recommend that the House administration consider how its temporary accommodation requirements during decant may change, given that remote working may be more common by the time that both Houses need to decant from the Palace of Westminster.

We recommend that the House administration should continue to develop its capacity to support virtual proceedings, in case this is required to support Parliament’s future business continuity arrangements or the restoration of the Palace of Westminster.

We welcome the House of Lords Commission’s ongoing support for proceeding with the Restoration and Renewal programme on the basis of the resolutions endorsed by both Houses, including the full decant of the Palace of Westminster as the quickest, cheapest and safest option. However, we regret the continued delays in delivering the programme. While some delays have inevitably resulted from the COVID-19 pandemic, the apparent lack of support from the Government for the programme is regrettable. Parliament has demonstrated resilience in the face of the pandemic, yet the continued deterioration of the Palace of Westminster increases the risk of both Houses being forced to resort to virtual methods of working in future.

All governments should recognise that, however great or sudden an emergency may be, exceptional powers are lent, not granted, by the legislature to the executive, and such powers should be returned as swiftly and completely as possible, avoiding any spill over into permanence. When a government decides to fast-track legislation, it should do so for legitimate and urgent reasons only, limiting parliamentary scrutiny to the extent strictly necessary.

The potential use of the Civil Contingencies Act 2004 in response to the pandemic would not have been a panacea. The Act grants extremely broad delegated powers—much broader than those provided for in the Public Health (Control of Disease) Act 1984. Use of the emergency powers under the 2004 Act would have required the re-making of regulations every 30 days, meaning that regulations would, in practice, likely have needed to be scrutinised in rapid succession or in large quantities. Nonetheless, Parliament would have been more involved in the legislative process, including the ability to amend regulations.

If the Government had used the Civil Contingencies Act 2004 at the outset of the pandemic, even if only as a temporary measure while alternative primary legislation was passed, parliamentary oversight could have been improved. The 2004 Act shows that Parliament can have, and expects to have, a central role in legal changes during periods of national crisis.

If use of the Civil Contingencies 2004 was not considered politically or practically desirable, the Government should have voluntarily subjected itself to comparable parliamentary scrutiny safeguards in all pandemic-related legislation.

The uncertainty at the onset of the COVID-19 pandemic, including Parliament’s ability to continue meeting in some form, led the Government to fast-track the passage of the Coronavirus Act 2020. While the use of the fast-tracking procedure may have been justified in those circumstances, it seriously curtailed parliamentary scrutiny of important and wide-ranging legislation.

We recommend that Parliament be consulted on any future draft legislation prepared on a contingency basis to address a potential emergency, ensuring that it provides for sufficient parliamentary scrutiny. The pre-legislative scrutiny of what became the Civil Contingencies Act 2004 provides a clear model for such an approach.

When parliamentary democracy is operating as it should, significant policy decisions should be enacted in primary legislation subject to full scrutiny by Parliament. The Government chose not to include a general lockdown power in the Coronavirus Act 2020. Had it done so, parliamentary oversight of the use of lockdowns in England in response to the COVID-19 pandemic would have been improved. A COVID-specific lockdown power might also have enhanced legal clarity and public awareness of the law.

The Government instead relied upon the Public Health (Control of Disease) 1984 Act, as amended in 2008, to introduce lockdowns in England. This has underlined the importance of affording Parliament adequate opportunities to scrutinise and debate regulations introduced under the 1984 Act.

Relying upon Part 2A of the Public Health (Control of Disease) Act 1984 as the primary basis for England’s response to the COVID-19 pandemic has restricted the Government’s accountability to Parliament for the significant policy decisions and extraordinary restrictions on civil liberties made since March 2020. The use of the urgent procedure has significantly constrained parliamentary scrutiny, and its use has not always been justified. We acknowledge the unprecedented nature of the COVID-19 pandemic. However, in many cases the Government’s need to rely upon the urgency procedure has been exacerbated by poor planning, including drafting delays and a failure to adequately take account of established scrutiny processes and timeframes.

We recommend that the Government sets out the rationale for using the urgent procedure under the Public Health (Control of Disease) Act 1984 in the explanatory memorandum accompanying an instrument made using that procedure. This should explain why the particular measures in the instrument need to be made urgently. Poor government planning does not justify use of the urgent procedure under the 1984 Act.

We recommend that there should be a presumption in favour of using sunset provisions in all regulations made under the Public Health (Control of Disease) Act

The Government’s extensive use of delegated legislation in response to the pandemic has undermined parliamentary scrutiny. Although there were circumstances where the urgency of the situation required the use of made affirmative procedures, their use was not always justified.

While we understand that urgent action may be required in response to a public health crisis, parliamentary scrutiny is an important constitutional check on the exercise of arbitrary power by the executive. The increase in the use of made affirmative instruments by the Government in response to the COVID-19 pandemic must not become the norm.

We recommend that there should be a presumption in favour of using sunset provisions in all regulations introduced during a national emergency. They should expire after three months unless renewed by a resolution of both Houses.

We recommend the Government adopt, at a minimum, the following safeguards in respect of all affirmative instruments introduced during a national emergency: a) The Government should commit to holding a debate and vote on regulations before coming into force wherever possible. (b) Where this is not possible: (i) The Government should set out in the explanatory memorandum accompanying an instrument why it considers it necessary for the regulations to come into force before a parliamentary debate; and (ii) The Government should commit to holding a debate and vote on regulations within 21 days of regulations coming into force.

We welcome the collaborative approach adopted by the UK Government and the devolved administrations in the early stages of the pandemic. This period demonstrates that all parts of the UK are capable of working together effectively in a crisis, saving lives and sharing information.

We welcome the close coordination which took place between the UK Government and the devolved administrations in developing and agreeing the Coronavirus Act 2020. While the Civil Contingencies Act 2004 would have allowed the UK Government to adopt a more centralised response to COVID-19, Schedules 18 and 19 to the 2020 Act instead enabled the Scottish Government and the Northern Ireland Executive to determine their own response to the pandemic. This approach respected the devolution arrangements.

A cooperative UK-wide approach is essential to tackle the spread of COVID-19. We are concerned that, since May 2020, intergovernmental communication and cooperation appears to have decreased significantly. Legal divergence between the four parts of the UK has also increased, occasionally accidentally. This has created practical difficulties for members of the public, particularly those living and working close to internal UK borders, as well as those seeking to travel abroad.

Intergovernmental relations are integral to the UK’s system of government. We regret that relations between the UK Government and the devolved administrations have been strained during the response to the shared challenges of the pandemic. We will consider this matter further in our inquiry on the future governance of the UK.

We regret that relations between the UK Government and parts of local government in England have not been stronger in the response to COVID-19. We will consider this matter further in our inquiry on the future governance of the UK.

Legal changes introduced in response to the pandemic were often set out in guidance, or announced in media conferences, before Parliament had an opportunity to scrutinise them. On occasion, the law was misrepresented in these forums.

When people are unable to understand what the rules are, they cannot hope to follow them. Members of the public are entitled to know, and to be correctly advised on, what is legally required of them and what, in the Government’s view, it is socially responsible for them to do.

The Government’s use of guidance and statements to the media have in some instances undermined legal certainty by laying claim to legal requirements that do not exist. The Government does not have, and must not assume, authority to mandate public behaviour other than as required by law.

The consequence has been a lack of clarity on which rules are legally enforceable, posing challenges for the police and local government, leading to wrongful criminal charges, and potentially undermining public compliance and confidence.

Guidance and media statements are not legislation and should not be presented or treated as such. When used appropriately, however, communication through such methods can enhance access to the law by simplifying legal complexity in a format that is easy for people to digest.

We strongly recommend that all Government guidance during a public health emergency conform to the following essential conditions to enable people accurately to understand the law: (a) Guidance should clearly distinguish information about the law from public health advice. It should not suggest that instructions are based on law when they are not. (b) Where guidance provides information about the law, this should be accurate and complete. Where the law is too complex to be set out in full, guidance should make clear that the account is partial. (c) All relevant legal instruments should be identified wherever legal requirements are referred to in guidance, accompanied by up-to-date hyperlinks to the underlying regulations on legislation.gov.uk. d) Guidance should make clear when opinions are being offered about the interpretation of the law, including a clear statement of the source and status of such opinions. (e) A consistent approach to use of the terms “advice”, “guidance”, “ recommendation”, “rules” and “restrictions” should be adopted in all Government publications and public statements, in each case making clear whether the term is referring to obligations required by law, or to public health advice.

We recommend that the Government ensures that every statement of Government guidance (including every amendment and replacement text) is separately published (and later archived) in a publicly accessible format. This will make it possible to identify the guidance that applied at any given time and enable each statement of guidance to be compared to the legislation in force at the relevant time.

A lack of advance notice of legislation has undermined parliamentary scrutiny, transparency and accessibility of the law.

We acknowledge that there have been a number of occasions throughout the COVID-19 pandemic where legislative measures have been urgently required to limit the spread of infection. That does not, however, justify the publication of significant measures hours—and in some case minutes—before taking effect.

There have been a number of occasions where apparently non-urgent measures have been published at the very last minute. On other occasions measures that have introduced significant restrictions on civil liberties, including criminalising everyday activity, have been announced minutes before coming into force. We note, in particular: The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 eased lockdown measures. To the extent that new public health measures were introduced, they were less restrictive than pre-existing restrictions. The regulations were nonetheless published less than 24 hours before taking effect. The Health Protection (Coronavirus, Restrictions) (All Tiers and Obligations of Undertakings) (England) (Amendment) Regulations 2020, which introduced Tier 4 restrictions in London and the south east of England shortly before Christmas 2020, were almost identical to the regulations giving effect to the March and November 2020 lockdowns.

In other cases, the urgency appears to have resulted from a lack of planning and preparedness by the Government. For example, the Government first advised the public to wear face masks on 11 May 2020. Face coverings then became mandatory in different public places under various sets of regulations made on 15 June, 24 July, 8 and 22 August. In each case, the regulations came into force shortly after publication. Poor Government planning does not justify the publication of regulations at the very last minute.

The National Archives have ensured that all coronavirus amendments are shown in the principal regulations on legislation.gov within 24 hours of laying. We welcome these efforts to enhance access to the law.

It is incumbent upon the Government to make the law clear. When enacting new COVID-19 restrictions, the Government should be guided by the principles of certainty, clarity and transparency, and seek to avoid rapid and last-minute changes to the law as far as possible.

We recommend that the Government adopts alternative drafting practices to make the mass of COVID-19 regulations more accessible for members of the public and lawyers alike. For every set of amending regulations made, the Government should set out in the explanatory memorandum: (i) the regulations that are being amended; (ii ) the substance of the amendments being made; and (iii) the reason for those amendments.

We recommend that, whenever amending regulations are made, the Government publishes an accompanying Keeling Schedule setting out the new legislation in full and indicating all the amendments that have been made. This would not have the status of legislation but should be published on legislation.gov.uk alongside the original instrument to facilitate public access and understanding of the changes that have been made to the underlying legislation. This approach would enable members of the public and lawyers to identify present and past law with greater ease.

A lack of notice of new measures, combined with repeated amendment and revocation of secondary legislation, has made it difficult for public authorities to prepare for, and advise their residents about, changes to the law. This has made it all the more important for guidance and ministerial statements to reflect accurately the true legal position, yet this has regrettably not always been so.

The UK Government has failed to make it clear when announcements only extend to England. This has caused unacceptable and unnecessary confusion for members of the public throughout the UK.

We recommend that all future ministerial statements and Government guidance on changes to COVID-19 restrictions clearly state the geographic extent of the new requirements.

We welcome the Prime Minister’s announcement of an independent public inquiry into the Government’s handling of the COVID-19 pandemic. We also welcome the Government’s commitment to consulting the devolved administrations before finalising the terms of reference for this inquiry. It is essential that the UK Government and the devolved administrations work together to learn from this pandemic and prepare for any future emergencies.

The public inquiry is currently due to commence in spring 2022 and may take a number of years to issue its final report. An examination of the use and scrutiny of emergency powers during the pandemic should not await this timescale.

We recommend that a review of the use of emergency powers by the Government, and the scrutiny of those powers by Parliament, should take place in advance of the public inquiry. We believe this review could be completed in time to inform the public inquiry and planning for any future emergencies.

The approach adopted in response to the pandemic must not be used to justify weakened parliamentary scrutiny of Government action in response to any future emergencies.

Section 21(5) of the Civil Contingencies Act 2004 appears to present a legal and practical barrier to use of that Act during an emergency. We recommend that section 21(5) of the Civil Contingencies Act 2004 be reconsidered as part of the review of emergency powers.

We recommend that the review of emergency legislation consider the use of the Coronavirus Act 2020 and Part 2A of the Public Health (Control of Disease) Act 1984, including whether the correct balance was struck between the restrictions on civil liberties and parliamentary scrutiny, and the Government’s ability to respond adequately to the COVID-19 pandemic.

The review should inform the development of any future bespoke emergency powers, including any amendments to the Public Health (Control of Disease) Act 1984 and Civil Contingencies Act 2004 that may be considered necessary. This could include amendments to the urgent procedure in the 1984 Act and requiring the use of sunset clauses in the regulations made under that Act.

The delegation of powers and use of delegated legislation during the COVID-19 pandemic has exacerbated long-standing issues. We will continue to keep this area under review.