Transforming Courts and Tribunals inquiry

We have little confidence that HMCTS can successfully deliver this hugely ambitious programme to bring the court system into the modern age. While other countries have attempted elements of what HMCTS is doing, no other country has attempted to change its whole system at this scale or pace. Such sweeping changes will be extremely challenging to deliver and the performance of HMCTS to date shows that it has much to learn if it intends to do everything it plans. Despite extending its timetable from four to six years, HMCTS has already fallen behind, delivering only two-thirds of what it expected. The Common Platform Programme, a key part of the reforms, is at significant risk of not delivering. The reforms have suffered from poor progress measures and weak governance, which HMCTS has taken steps to improve. The Infrastructure Projects Authority has also cast doubt on the ability of HMCTS to deliver the programme successfully. There are a number of external factors which could derail progress, such as the delay in primary legislation and uncertainty over long-term funding. Recommendation: HMCTS should write to the Committee, by January 2019, to provide assurance about its updated timetable for delivery. It should update the Committee every six months thereafter in the same format so we can monitor progress.

HMCTS has failed to articulate clearly what the transformed justice system would look like, which limits stakeholders’ ability to plan for, and influence the changes. HMCTS was unable to explain what the transformed justice system would look like and how it would measure whether the changes had been delivered successfully. Organisations representing users of the justice system told us that although the reforms presented many opportunities, they had a poor understanding of what HMCTS is aiming for and how the new system will work in practice. Resolution, the Magistrates Association and the Bar Council told us that they were frustrated with the quality of HMCTS’s engagement with them so far and said they felt informed rather than always consulted or meaningfully engaged. This lack of transparency means that interested parties feel that changes are being imposed rather than co- created. Recommendation: By January 2019, HMCTS should provide the Committee with a clear and detailed articulation of what the changes will mean in practice for all the users of the justice system, and when users can expect these changes to be in place.

Despite the revised timescale, HMCTS’s imperative to deliver at such a fast pace risks not allowing time for meaningful consultation or evaluation and could lead to unintended consequences. With so much to deliver in the remaining four years of the programme, HMCTS is operating at a rapid pace. This limits the time available to stand back and consider the wider impacts of the changes on the justice system as a whole and on those that use it. Representatives of the legal profession told us that they are concerned that HMCTS is ploughing ahead without evaluating the impact of changes on user access to justice or consulting properly with stakeholders. They told us that HMCTS was paying “lip service” to engagement, rather than listening to and acting on concerns. Resolution told us that the lack of transparency over the 6 Transforming courts and tribunals closure of the court in Chichester led to a protracted debate about the court’s use and the impact on users. We share the concerns raised with us that rushing through court closures and fundamental changes to how cases are processed could impede access to fair justice and increase costs elsewhere in the system. Recommendation: By November 2018, HMCTS should publish plans on how and when it will engage with stakeholders and be clear about how it will act on the feedback received and adjust plans if necessary.

HMCTS has not adequately considered how the reforms will impact access to, and the fairness of, the justice system for the people using it, many of whom are vulnerable. We are concerned that the reforms are being pursued at the possible expense of people’s access to fair justice. HMCTS has already closed 258 courts between 2010–11 and December 2017. These courts have been closed before moving services online, meaning that many people are having to travel further to access justice. This can cause many people severe difficulties, particularly for those who rely on public transport or have caring responsibilities. More closures are underway, yet HMCTS has undertaken limited work to review the impact of the closures on users or how demand for court time has been affected. HMCTS has not properly tested the use of new technology in accessing justice. Although HMCTS assured us that it is testing digital services, like online forms, with users, this does not amount to a proper evaluation of the wider impacts of the changes in the real world. We are concerned that HMCTS told us a great deal about processes and products and not enough about how the changes might affect people. Moving services online without assessing the impact could have serious implications for users of the justice system. We share concerns raised by legal professionals and in written submissions that, without sufficient access to legal advice, people could make uninformed and inappropriate decisions about how to plead, and that the roll-out of virtual hearings could introduce bias and lead to unfair outcomes. Recommendation: HMCTS should write to the Committee by January 2019, setting out how it will identify and evaluate the impact of changes on people’s access to, and the fairness of, the justice system, particularly in relation to those who are vulnerable.

One third of the way through the programme, the Ministry of Justice still does not understand the financial implications of its planned changes on the wider justice system. HMCTS expects to save £265 million a year through its planned changes to the courts and tribunal system. These changes will have financial implications across the justice system. Some changes, such as the increased use of video hearings, will create additional costs for other organisations such as the prison service and the police because they will have to buy the new technology needed and make staff available to supervise defendants. However, there may also be indirect costs. These could include costs related to increases in witnesses not attending trials due to the need to travel greater distances to courts or delays processing divorce applications due to staff shortages meaning some people may have to access benefits as they wait for their financial situation to be resolved. Such cost- shunting across the justice system needs to be well understood given the stress that all parts of the system are already under. HMCTS told us that it has established a cross-system group that is Transforming courts and tribunals 7 modelling the costs and benefits of the changes to the justice system. Although we recognise work is underway to better understand and address this, we are surprised and disappointed it is not more advanced. Recommendation: The Ministry should work with HM Treasury to quantify the likely financial implications of the reforms on the wider justice system. They should involve affected parties to address the implications of any cost-shunting and ensure future funding settlements reflect the cost of delivering services in the transformed system.

We remain concerned that the Ministry of Justice is taking on significant amount of change, without a clear sense of its priorities, at a time when it is facing severe financial and demand pressures. The Ministry faces competing demands for limited resources and increasing demand for its services. The changes to the courts and tribunal system is only one of a number of significant change programmes within the Ministry’s portfolio and the prison, probation and legal aid systems are all under significant strain. Brexit also creates uncertainty about the future demand on the courts and tribunals system. The Ministry is under severe financial pressure, which is only likely to increase, and it faces some hard decisions about what it can continue to fund. It is not clear to us how the Ministry aims to flex its priorities and balance its budget whilst maintaining critical public services. Recommendation: The Ministry should write to the Committee in advance of the next Spending Review to explain how it plans to ensure its portfolio of change is well-balanced and appropriately prioritised to enable it respond to financial pressures. This should include setting out those elements of reform that are essential and those which could be put on hold. 8 Transforming courts and tribunals 1 Delivering the reforms

HMCTS accepted that some critical elements of the reforms were still running behind schedule, the most important of which was the Common Platform Programme, which was originally due to be complete in July 2018 but it now not expected until July 2020. HMCTS co-runs this programme with the Police and Crown Prosecution Service (CPS). HMCTS explained that it had brought the programme within the reform portfolio’s governance, re-visited the design and reduced the scope. It also said that it had improved and strengthened governance arrangements and changed the way the technology is developed. It admitted, however, that without further work to increase the pace of delivery, the Common Platform Programme would not deliver everything needed and was at significant risk of not delivering. Witnesses assured us that the police and CPS were closely involved and the programme was being run in a joined-up way.13

The Infrastructure and Projects Authority’s most recent review of the reforms concluded that successful delivery of the reforms was in doubt. The Ministry accepted that this was an accurate assessment, acknowledging that the risk around changes of this scale and ambition is that it can never be totally confident that everything will work all the time.14 This risk is increased by HMCTS’s poor progress measures. The NAO report 8 Qq 2, 5, 8 9 Magistrates Association (TCT0007); Professor Pablo Cortes (TCT0003); Professor Roger Smith (TCT0002); Bail Observation Project (TCT0017) 10 Qq 66, 211 11 Q 46, 50–52, C&AG’s Report, para 2.7 12 Q 53–54 13 Qq 52–58, C&AG’s Report, para 2.12 14 Q 78, C&AG’s Report, para 3.2 10 Transforming courts and tribunals highlighted that HMCTS did not have an effective way to monitor performance and we asked HMCTS what it was doing to give it a better oversight of what had and had not been delivered. HMCTS told us that it was confident it had developed more sophisticated measures and it now had the right information and indicators to enable it to intervene early enough to get things back on track.15

New primary legislation is needed in order to support the changes to the justice system. A Prisons and Courts Bill was introduced to Parliament in February 2017 but stalled in April following the announcement of the June general election. A Courts Bill was included in the legislative programme outlined in the Queen’s speech in June 2017.16 In May 2018, the Courts and Tribunals (Judiciary and Functions of Staff) Bill was introduced to Parliament covering delegation of functions within the courts. The Ministry told us that it expects another three areas to be included in future bills, specifically criminal procedures, online procedures and provisions on employment tribunals. Collectively, these make up the equivalent of the previous Bill.17 The Ministry asserted that this legislation is required to deliver the “optimum version” of the reforms. However, HMCTS has limited control over the timing and content of these bills and is reliant on parliamentary timetabling. HMCTS explained that the uncertainty around primary legislation is not currently delaying progress but that it would need to be introduced to deliver all the expected savings.18

Another area in which HMCTS faces uncertainty is its long-term funding. There is an estimated funding gap of £61 million from 2020–21 which the Ministry explained was the result of its agreed funding only lasting till the end of the current spending period which runs from 2015–16 to 2019–20. The Ministry said that it would enter into negotiations with the Treasury and hoped to secure funding for the remaining parts of the programme but that it remains an uncertainty.19 Consulting with users of the justice system

The Law Society, Resolution and Transform Justice were supportive of the aims of the reforms and the opportunities they presented to modernise the justice system, improve efficiency and provide a better experience for court users and improved access to justice.20 However, they were concerned by a lack of clarity from HMCTS about what stakeholders and users could expect and the limited detail that was available on how the reformed services will work in practice.21 Evidence provided by the Law Society and Resolution and through written submissions from the Magistrates Association and Bar Council called for clearer information on the direction of travel and more meaningful engagement with professional users of the justice system to enable them to properly input and co-create the programme.22 Resolution suggested that current efforts to engage with them felt like lip service, were “fractured and ineffective” and that there were practical barriers for those seeking to engage.23 Examples given by the Bar Council included: difficulties attending 15 Qq 61–62, 64, C&AG’s Report, para 2.5 16 C&AG’s Report, para 1.25 17 Qq 34–35, 39–40 18 Q 42–45; C&AG’s Report, para 1.25 19 Q79; C&AG’s Report, para 2.14 20 Qq 1, 5 21 Q 32; Magistrates Association (TCT0007) 22 Qq 5, 7, 32 23 Q 5; Resolution (TCT0016) Transforming courts and tribunals 11 consultation events where invitations are often sent at short notice and held during working hours; a high volume of meeting and interview requests; and over-crowded agendas with little time for discussion.24

The Law Society and Resolution told us that they were also concerned that HMCTS had given insufficient attention to the concerns that they had raised with it. In particular, around the legal representation of people in the new digitised system and the roll-out of flexible operating hours to courts.25 For example, the Law Society was concerned that if people were not given the opportunity to seek legal advice before submitting a claim online, it could lead to invalid cases clogging up the system. HMCTS told us that it had started to engage with the Law Society on this topic but accepted that these conversations had not progressed as far as it would like in resolving the issue.26 We also heard about the case of Chichester combined court where the decision to close it in 2015 was disputed and had led to a protracted, three-year discussion around the adequacy of local court provision.27

When we asked the Ministry and HMCTS to explain what successfully transformed services would look like, they spoke in broad terms about the need to ensure that the justice system works better for the public. They were not able to be more concrete about how they would measure this or determine whether the programme had been a success. HMCTS cited examples of user satisfaction scores from digital services but not how it would measure how the reforms affected access to justice or the fairness with which it is administered. The published principles for reform cite the need for the courts and tribunals system to be proportionate, accessible and just. Neither HMCTS nor the Ministry could tell us how government intends to measure the extent to which this is the case.28

Transform Justice told us that there has been little engagement with the general public from HMCTS on what is changing, and that publicly available information is limited. Entry to most stakeholder events is by invitation only. Transform Justice told us that there had only been public consultations on the strategy for court closures and some elements of digital court reform. However, as yet there had been no public consultation on the expansion of video hearings, online pleas or the civil and tribunal digital programme.29 After our oral evidence session, HMCTS published a Reform Update for the general public outlining its plans for the reforms.30 24 The Bar Council (TCT0006) 25 Qq 5; 8, Bar Council (TCT0006); Resolution (TCT0013); Melanie Benn (TCT0005) 26 Qq 8, 121 27 Qq 7, 19 28 Qq 67, 114–118, 139; C&AG’s Report, para 1.8 29 Qq 32, 102, Transform Justice (TCT0001) 30 HM Courts & Tribuals Service, Reform Update, 20 June 2018 12 Transforming courts and tribunals 2 The possible consequences of reforms Access to justice

Our non-government witnesses and many of the written submissions we received identified that their main concern was that the reforms would reduce access to justice and the fairness of its outcomes. They told us that they were not satisfied that alternative methods of handling cases would maintain the integrity of the justice system and were concerned that increased efficiency was at the expense of ensuring a fair process for all. The prospective changes that illustrated this most clearly were court closures and the increased use of video or virtual hearings.31

HMCTS closed 258 courts between April 2010 and December 2017.32 HMCTS told us that the closures were because court buildings were under-utilised, that work could be accommodated in other courts and that people would not have an unreasonable distance to travel.33 However, Resolution, the Law Society and Transform Justice thought that the criteria for closing courts were not transparent and specifically questioned HMCTS’ justification of low utilisation rates given these could be the result of the lack of judges to lead hearings rather than a lack of cases. Resolution told us that it is essential to ensure that suitable alternative provision was in place before closing a court. In the case of Chichester, ‘pop-up’ courts in local council offices were being considered.34

Resolution told us that it had conducted a survey of its members on the impact of court closures on travel times which found that 88% of those who had seen their local court close reported increased travel times for them and their clients. In the case of Chichester, some cases are being sent to courts over 80 miles away which can mean some people are unable to attend their appointments, particularly those with childcare or caring responsibilities. Its survey also found that members reported slower processing of applications, offers and other court documents and Resolution attributed this to the closures and staff shortages.35

Court closures could also lead to a rise in missed court appointments and may contribute to higher costs for the public purse for example costs associated with rescheduling hearings, wasted court time and having to arrest or detain defendants who fail to attend court. Transform Justice told us that local court closures had led to an increase in the number of people who fail to appear at court. However, HMCTS asserted that there was no statistically significant change in the rate of people who failed to appear at court in the years of the greatest number of court closures.36

As part of its plans to move cases out of the physical courtroom, HMCTS is proposing to introduce “virtual hearings” across the court system as well as in tribunals. It already uses video-links in some parts of the justice system. For example, vulnerable witnesses can give evidence by video, and defendants can appear remotely via video links from prison in hearings that are early in the process.37 HMCTS told us that it wants to widen use of 31 Qq 2, 5, 8; Magistrates Association (TCT0007) 32 House of Commons library debate pack, CDP–0081, Court closures and reform, 26 March 2018, p 30 33 Q 70 34 Qq 20, 24–25 35 Qq 7, 22–23; Resolution (TCT0013) 36 Qq 26, 71; Transform Justice (TCT0014); O Adisa and S Hallsworth, Access to Justice: Assessing the impact of the Magistrate Court Closures in Suffolk, December 2017 37 Q 120 Transforming courts and tribunals 13 video-links and introduce “virtual hearings”, where all participants can log in remotely to an online court including judges, lawyers, witnesses and defendants. It claimed video hearings can reduce unnecessary disruption for prisoners as they do not need to be moved and prevent time being wasted travelling to court for short hearings. It has engaged the London School of Economics to evaluate its work with video-links and virtual hearings, but explained that this was not yet sufficiently advanced to be able to tell us the results.38

Although representatives from the legal profession told us that they welcomed the use of video hearings for administrative issues to progress cases, they were less supportive of the widespread use of the technology for sensitive hearings. They were particularly concerned about how the changes would affect the ability of vulnerable people to participate in hearings, particularly those with mental health problems, learning difficulties, with English as a second language, and those without legal representation. The Law Society asserted that “face to face engagement delivers understanding and communication that is lost when you deal with video-links” and that it was not satisfied that alternative means of dealing with cases would properly protect fairness in the system. Appearing in court online rather than in person could increase the risk of unconscious bias, where pre- existing attitudes or stereotypes can affect the way that people understand others, the way that they act, or the decisions that they make without them being conscious of it.39 Transform Justice told us that some research suggests that appearing via video can make it more difficult for defendants to participate effectively in court and can also impact on the likelihood of a conviction with research indicating that individuals that appear by video link being more likely to receive a prison sentence or be deported than those appearing in person.40

The Law Society and Transform Justice also raised concerns about allowing people to make a plea online, particularly, the ability of people to make an informed choice without access to legal advice and understanding the implications of pleading guilty. The Law Society asserted that while people could make a claim online, it was still crucial that they received legal advice on whether they had a valid case, what evidence they needed to produce, whether a defence was reasonable, and at what level they should settle a claim. HMCTS told us that it stills expects people who enter pleas online to have a conversation with a legal advisor before entering their pleas. The Ministry asserted that online systems can provide better opportunities to give people clear warnings about the implications of their actions. However, it recognised that digital systems will not suit everyone and confirmed that it would retain the option of using paper forms and providing telephone and face-to-face support for those who need it.41

We received written evidence from journalists who raised concerns about the impact of the reforms on the concept of open justice, and stressed the importance of public and media access to court proceedings. Visibility and scrutiny of the justice system are important to build public confidence that decisions and outcomes are just. The submissions raised practical issues on how journalists can continue to get access to information, court staff and hearings when activities are conducted online.42 38 Qq 113, 116 39 Q 8, 10–13 40 Qq 13, 15–16; Transform Justice (TCT0014); Ministry of Justice, Virtual Court pilot: Outcome evaluation, December 2010 41 Qq 8, 97, 121, 127, 138 42 Q 12; News Media Association (TCT0015); Transparency Project (TCT0009); Mark Hanna (TCT0010) 14 Transforming courts and tribunals Wider financial implications

We have in the past highlighted the risks of Government not understanding the implications of changing one element of a system on the rest of the system, or across other government departments. Changes in one part of government often lead to costs being shunted to another and this could well happen here, for example in prisons, when prison officers will be diverted from usual duties to supervise attendance at virtual hearings.43 We also heard an example where delays to granting divorces in Bury St Edmunds divorce centre, arising from staff shortages, may have led to individuals having to seek state support for housing and benefits while they wait for their financial situation to be resolved.44

We asked HMCTS how it is managing the risk that changes to the courts system will have wider consequences elsewhere in the justice system. It told us it is making small- scale changes and testing them to try to understand if there are any wider effects before rolling out services more widely, such as using pilots and early adopter areas to test what unintended consequences may arise and understand whether there is a ricochet effect. However, HMCTS admitted that it is extremely difficult to evaluate something that has yet to be done and that the reforms are not yet far enough advanced to say for certain what the impact will be. It did accept that some changes are not cost-neutral such as the need to invest in a video custody suite but the longer term savings from not having to transport prisoners to and from court would make it worthwhile.45

We asked HMCTS to explain how it was trying to understand the costs of other agencies within the justice system. It explained they had established a Criminal Justice System Integration Board bringing together the police, HM Prison and Probation Service, the CPS and the Legal Aid Agency to work on understanding the costs and benefits of the reforms. It told us that it was not yet in a position to know where the costs will fall, or how to pay for them, but spoke of constructive conversation between the various parties and the ambition to jointly create a cost model together to test what combination of practices might work best. For example, a longer court day could mean more people could be heard in court but may mean more people are in the police station in the day with potentially fewer overnight. However, running hearings later in the day could also mean the added costs of bringing people late to prison.46 Balancing competing pressures

The Ministry is undergoing significant change in every area of its business.47 We have previously commented on elements of these in our reports on offender monitoring tags,48 probation and rehabilitation49 and mental health in prisons.50 The National Audit Office 43 Qq 109; C&AG’s Report, para 3.8 44 Q23 45 Qq 103, 107–109, 113, 118 46 Qq 59, 110–112 47 Q 89 48 Committee of Public Accounts, Offender-monitoring tags, Fifteenth Report of Session 2017–19, HC 458, 24 January 2018 49 Committee of Public Accounts, Transforming rehabilitation, Seventeenth Report of Session 2016–17, HC 484, 23 September 2016 50 Committee of Public Accounts, Mental health in prisons, Eighth Report of Session 2017–19, HC 400, 13 December 2017 Transforming courts and tribunals 15 has observed that every element of the Ministry’s services are under significant pressure and its ability achieve its objectives and live within its spending plans will depend on its ability to manage the risk that its transformation programmes do not deliver to plan.51

The Ministry recognised that its constrained budget was creating pressure to reform and modernise services and that it could not “stand still and run public services with a diminishing budget”. It told us that it was doing its best to reform and improve and to balance priorities and accepted this was very challenging. We asked how the Ministry would prioritise should the need arise, but the Ministry told us that it was not in a position to give its views on this. HMCTS told us that it would be premature to decide without first learning from the services that have been made available. HMCTS said that the reviews by the Major Projects Review Group are the vehicle through which funding and prioritisation decisions will be made. The reviews are expected at the completion of the next stages in the programme with the next one due in January 2019, followed by another in May 2020.52

The NAO reports that HMCTS underspent against its budget by £133.3 million and expects to carry this forward to use in future years. HMCTS told us that is not actively seeking to smooth its spending between years unless the decisions also support value for money. Instead it said it would rather engage with the Treasury on shifting the money to where it is best spent. It spoke of having three lines of defence to manage its funding: within the wider Ministry budget, within HMCTS and the programme itself.53 51 National Audit Office, A Short Guide to the Ministry of Justice, October 2017 52 Q 84–90 53 Q 85–86; C&AG’s Report, para 2.10 16 Transforming courts and tribunals