Transforming courts and tribunals: progress review inquiry

Reforms are continuing to fall behind schedule: we are not convinced that it is possible for HMCTS to deliver everything promised in the current timeframe. When we last reported at the end of its first stage, HMCTS had fully completed around two thirds of what it planned, but this time, at the end of its second stage, it has completed just over half. HMCTS opted to add an extra year to make the reforms more deliverable but this may not be enough. HMCTS and the Ministry expressed confidence that they will meet the new timetable, despite acknowledging that the fast pace of reforms is a key risk. But current and past delays, and the increasing scale and complexity of what is still to be done, make the timetable seem over-optimistic. Enabling legislation continues to be delayed, some users remain unconvinced of the value of the changes and HMCTS needs to balance the tension between taking time to understand the impact of changes and the need to maintain momentum. In this context, HMCTS and the Ministry cannot rule out further extensions to the timetable. Recommendation: HMCTS should write to the Committee once it finalises its next business case to set out the proposed alternative arrangements if plans cannot be achieved within current timeframes, including what projects could be eliminated, reduced or delayed if reforms come under further pressure.

HMTC risks undermining public confidence in the fairness of the justice system by proceeding with its reforms without sufficiently demonstrating it understands the impact on justice outcomes or people. HMCTS is rolling out new systems and processes without first assessing the success, or otherwise, of experiences to date. To date its evaluation has largely been process-based, focussing on how new technology is working rather than the impact on people or justice outcomes. For example, HMCTS has not fully explored the impact that using video-hearings has on outcomes for defendants. Although some digitised services like divorce seem to be working well, representatives from Transform Justice, Law Centres Network and the Law Society are concerned about how online services may disadvantage users with low digital or legal literacy. Such people may be less likely to seek legal representation, putting them at risk of making uninformed decisions or incurring unknown costs. The Ministry’s interim evaluation of the reform programme will not report until 2021, which is too long to wait for a better understanding of impacts. Recommendation: HMCTS and the Ministry should write to the Committee by July 2020 demonstrating how evaluations will influence implementation of future services, including, where possible, an assessment of how reforms are affecting justice outcomes. It should map out the links between planned evaluations and its reform delivery plan to demonstrate how learning will influence future developments and deployments of services.

HMCTS did not adequately consider how previous court closures impacted on access to the justice system, particularly for vulnerable users. HMCTS is planning to close a further 77 courts in the next phase of reform, having already closed 127 since 2015. These courts were closed before services were moved online, meaning that many people are having to travel further to attend court. Organisations representing users of the justice system are concerned that court closures are affecting people’s 6 Transforming Courts and Tribunals: progress review physical access to justice. Those living in rural areas, on low income or people with a disability are especially vulnerable as they may find it more difficult to travel to court. HMCTS admits that the initial closures were guided by the level of court use, rather than ease of access. It has assured us that future closures will only take place once it has evidence that reforms are reducing the need for physical hearings and, crucially, that access to justice will not be compromised. Recommendation: HMCTS should set out what it will do to make sure that the needs of vulnerable users are considered in future closure decisions. Where access issues are apparent, it should put in place measures to compensate for difficulties, such as providing taxi vouchers in advance.

HMCTS has improved how it communicates with stakeholders, but many still do not feel listened to, undermining trust in reform. Since we last reported, HMCTS has restructured the way it engages with stakeholders and is giving them more information on reform. However, representatives from the legal profession do not feel listened to—instead their overriding impression is that HMCTS engages with stakeholders to communicate information rather than to listen and gain insight that will help shape reform. They also feel that HMCTS could be more transparent about the rationale for decisions. This concern was echoed in a recent stakeholder survey undertaken by HMCTS, which found that 42% of respondents did not believe HMCTS is open and transparent. HMCTS accepts that trust is undermined by myths and suspicions around the motivations for the reforms. The Ministry and HMCTS acknowledges that without putting users at the heart of the changes, the reforms will not succeed, and has assured us that it will do more. Recommendation: HMCTS should set out what it will do to shift its engagement with key stakeholders from broadcasting information to genuinely listening and responding to feedback. It should provide examples where this engagement has resulted in change.

HMCTS cannot demonstrate claimed savings are attributable to reforms so taxpayers cannot be confident they are getting what was promised. HMCTS expects to save £244 million a year through its planned changes to the courts and tribunal system. So far it claims to have saved £133 million from administrative, judicial and property efficiencies. However, HMCTS cannot clearly demonstrate the link between where savings come from and the reforms it has introduced. It acknowledges that this is difficult due to its limited understanding of precisely what its staff are doing and is working to improve its data. HMCTS is focused on trying to make sure that making savings, by reducing operational budgets, is not adversely affecting service quality. Although we recognise work is underway to address this, we are surprised it is not more advanced given the need to demonstrate to Parliament and the public that the reforms are delivering what was promised. Recommendation: HMCTS should write to the Committee by the start of its next phase (May 2020) with a plan demonstrating how it intends to measure and monitor benefits arising from reform. This should fully set out the evidence it will use to link reforms and benefits. Transforming Courts and Tribunals: progress review 7

The Ministry of Justice is facing a potentially huge spike in demand from changes to sentencing and increased funding for the Police, which risks placing increased strain on already stretched services. The intention to recruit 20,000 more police officers over the next 3 years will have downstream impacts on the rest of the justice system. The number of people being prosecuted and going to court, those being sentenced to prison terms and under the supervision of probation are all likely to rise. The Ministry is still working through the possible impact and quantifying the potential scale of the change, which will depend on when and where police will be deployed. Given the operational and financial pressure that court, prison and probation services are already under, it is far from certain the Ministry will have the capacity and capability to cope with a significant rise in demand. Sustained cuts to the Ministry’s funding have put services under strain. While the Ministry received a 4.9% increase in the 2019–10 Spending Round, it is not clear if this will be enough to match new demands. Recommendation: The Ministry should report back to the Committee in six months, setting out how it plans to maintain and improve services in the face of rising demand in the justice system. The plans should cover: • Court and tribunal services; • Prisons; and • Probation. 8 Transforming Courts and Tribunals: progress review 1 Delivering the reforms

The reforms were originally meant to improve efficiency and reduce HMCTS’s annual spending by £265 million (since revised down to £244 million). HMCTS claims to have saved £133 million so far.16 We asked how HMCTS monitors savings to make sure that they are linked to the reforms. To achieve savings, HMCTS relies on hitting budgets that are reduced in anticipation of changes. It told us that it has a “real challenge when it comes to … understanding … exactly what every bit of every HMCTS member of staff is doing every minute of their day.” HMCTS committed to getting a much better grip on this so it can be more specific about how people’s jobs are changing.17 8 Qq 58, 61, 63 9 Qq 67–68, 127–129 10 Q 41 11 https://www.gov.uk/government/news/prisons-and-courts-bill-what-it-means-for-you 12 Qq 42–43 13 Qq 86–87 14 Q 90 15 Ev xx - Magistrates Association submission para 3.2 16 C&AG’s Report paras 1.1, 1.12 17 Q 74 10 Transforming Courts and Tribunals: progress review

HMCTS recognised that it was well behind schedule to reduce the staff headcount by 5,000, having delivered only 91 reductions since 2017–18.18 It explained that it made a conscious decision to reduce the headcount after delivering changes rather than in anticipation of them. HMCTS has started to reduce headcount in areas where change has been delivered, such as divorce and probate. Given the lack of progress, we asked how HMCTS intends to deliver on the promised reductions by 2023 without damaging operations. HMCTS told us that its use of agency staff gives it the flexibility to deliver reductions more efficiently in the future, without compromising services.19 Consulting with users of the justice system

Organisations representing users of the justice system told us that HMCTS has improved how it engages with them, echoing the NAO report which recognised positive changes in the way that HMCTS shares information on reform. The Law Society noted improved engagement on particular projects such as divorce petitions and online civil proceedings.20 But churn in HMCTS staff gave the Bar Council the feeling that “it was often saying the same things it had said two years ago, but to different people on the same sorts of groups.” Transform Justice noted the lack of transparency around the purpose of HMCTS’s engagement saying it is “not clear why anybody has been invited, why somebody else has not been invited, what the remit of the group is and what its result is.” The Law Centres Network also observed that engagement has tended to be around communicating changes in the hope that stakeholders get on board.21

HMCTS told us that where it has engaged with users, feedback has been positive. For example, it said that 82% who attended webinars thought they were useful. However, its own stakeholder survey found that only 42% of users view HMCTS to be open and transparent.22 HMCTS pointed to legacy perceptions of the organisation, misunderstandings and “suspicion” around the motivation for reform as hampering its engagement efforts, but recognised it had to improve. The Ministry said the example of flexible operating hours, where HMCTS changed course due to user feedback, demonstrated HMCTS was “not just broadcasting, but listening.”23 Despite this, both HMCTS and the Ministry identified stakeholder engagement as one of the programme’s biggest risks that needs to be addressed.24 18 Q 92; C&AG’s Report, page 4 19 Qq 92–93 20 Qq 6–9; C&AG’s Report para 7 21 Qq 6, 8 22 Qq 79–80; C&AG’s Report para 7 23 Qq 81, 83 24 Qq 127–129 Transforming Courts and Tribunals: progress review 11 2 The possible consequences of reforms Access to justice

Organisations representing users of the justice system identified that their main concern was that the reforms would reduce access to, and the fairness of, justice. 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 increasing efficiency may come at the expense of ensuring a fair process for all.25

HMCTS has closed 127 courts since 2015. It told us that this first wave of closures focussed on courts with low levels of usage, where people would not have an unreasonable distance to travel to alternative courts.26 These closures took place prior to the changes planned under the reforms taking effect, meaning people still have to travel to physical courts that are now further away.27

Organisations representing users of the justice system, in both oral evidence and written submissions, were critical of court closures and their impact on access to justice. The Law Society challenged the process for selecting courts for closure, saying that the underlying rationale is not always clear. The Law Society, Transform Justice and the Law Centres Network explained that court closures have made it more difficult for people to access courts, especially for those in rural communities, those on low income and those with a disability. The Law Society noted a “massive increase in the proportion of the population who are at least 20 miles from the local court.” It said some people are making the decision not to travel to court, due to convenience, but rather waiting for police to pick them up and take them.28 The Law Society and the Equality and Human Rights Commission both provided practical examples of the impact of closures on people with disability. The Equality and Human Rights Commission explained that “one of the alternative sites to Northallerton Magistrates’ Court, which was announced for closure in July 2018, can only deal with non-mobile users by prior arrangement”, while the Law Society, similarly, said that in Yorkshire, HMCTS has to take Doncaster Crown Court “out of mothballs if a defendant has disabilities”.29

HMCTS defended the closures, telling us that “70% of [its] buildings are within five miles of another HMCTS building” and that it expects “the vast majority of people” to be able to get to court by public transport for 9.30 am, leaving home no earlier than 7.30 am . However, both HMCTS and the Ministry conceded that, whilst access to justice is now the primary factor in deciding to close any further courts, itmay not have been in the past.30 HMCTS plans to close a further 77 courts over the next few years.31 It pointed to two specific steps it will take to ensure access to justice is prioritised going forward. First, HMCTS said that it has published a list of principles which must be followed before future closures. HMCTS also said that it is taking a more practical approach to measuring travel times to court, including analysing public transport schedules and their reliability.32 25 Qq 2, 5, 8; Ev xx submission from Magistrates Association para 3.3–3.6 26 Q 97; C&AG’s Report para 10 27 Ev xx submission from Transform Justice para 3.5 28 Q 10 29 Q 12; Ev xx submission from Equality and Human Rights Commission page 7 30 Qq 95–96 31 C&AG’s Report para 11 32 Qq 95, 97 12 Transforming Courts and Tribunals: progress review

The closure of physical courts increases the importance of digital and online technology. We received positive feedback about progress in rolling out some services online, particularly divorce, probate and small claims processes.33 The Equality and Human Rights Commission, however, commented that 17% of rural properties do not have access to decent broadband, exacerbating the impact of court closures.34 The Law Centres Network also raised concerns that HMCTS does not recognise that digital literacy is lower among vulnerable groups, who are more likely to interact with the justice system. Transform Justice shared research that showed higher rates of digital exclusion were present in those on lower incomes, those living in social housing, people on benefits, older people and those with disabilities.35

Representatives of the legal profession also raised concerns that both court closures and new online processes are leading to more people missing out on legal advice and making uninformed choices. Both the Bar Council and the Law Society provided anecdotal evidence that the closure of courts had led to local legal practices also closing.36 The Equality and Human Rights Commission was also concerned that a reliance on online courts may have an impact on access to or take-up of legal advice, potentially increasing the risk that people engage in the justice system without proper legal advice.37 The Law Society gave the example of the online small claims process, where plans to extend it above the current small claims limit could lead to people incurring significant costs at the press of a button, without fully understanding the consequences. Similarly, Transform Justice told us that the Single Justice Procedure, which enables defendants to plead guilty online and choose to have their case decided by a single magistrate without going to court, has reduced engagement with the justice system.38 Evaluating the impact of reforms

Organisations representing users of the justice system were also concerned about the approach to evaluating the impact of reforms. In its written evidence, the Magistrates Association suggested HMCTS needed to focus on understanding the impact of reforms on court users.39 Transform Justice, the Law Centres Network and the Law Society all raised the risk of the Ministry and HMCTS pushing ahead with planned reform without first assessing the success or otherwise of experiences to date.40 Transform Justice told us that, where there is a planned evaluation, “there is no question mark as to whether [HMCTS] will go ahead”.41

The Ministry explained that a full evaluation of the reforms would take place at the end of the reform programme, while an interim evaluation would be completed by

Transform Justice told us that most testing done by HMCTS is ‘process-based’ and does not look at the outcomes. We explored this issue in the context of video hearings. The Bar Council criticised the scope of the pilot for video testing, while the Law Society told us of research in the USA that found “where judges and decision-makers engage with people over a video link, they have a lower degree of empathy than when dealing with someone face-to-face.”44 Similarly, the Equality and Human Rights Commission flagged several concerns about the use of video hearings increasing unfairness, limiting access to justice and potentially impacting court outcomes.45

HMCTS confirmed that evaluation of video hearings is primarily focussing on how new technology is working. It remarked that part of the reason for process-based testing is that the use of video hearings is intended to be limited and that they will not be used for full criminal trials.46 HMCTS explained that existing data on the use of video in magistrates courts “made it very difficult to look back…and see whether the use of video appears to have had any impact” but that it was starting to improve this data. Although it cited some international research, HMCTS acknowledged this did not provide the answer and that it would have to “pull that learning together and test it”.47 Responding to increased demand

Government has a track record of changing one element of a system without fully recognising the consequences for the rest of the system, or across other government departments. Recent announcements of funding for an additional 20,000 police officers and changes to sentencing policy will inevitably affect the number of people being prosecuted, going to court, being sentenced to prison terms and being supervised by probation services. Court, prison and probation services are already under considerable strain.

We asked the Ministry and HMCTS to set out the operational impact of increasing police numbers. The Ministry told us that this is inherently uncertain given it does not know how the new police officers will be deployed and the type of cases they will pursue. However, it did anticipate an increase in demand for both HMCTS and HM Prison and Probation Service. The Ministry welcomed recent measures announced in the spending round for both courts and probation as recognition of the need to fund downstream parts of the system.48

The Ministry indicated its greatest concern was the impact on prisons, with some projections resulting in a “very substantial increase in the prison population” requiring a prison building and maintenance programme “bigger than anything that has happened in recent years.” The Ministry refused to share its estimates of the impact of increased police numbers on the prison population due to the inherent uncertainty, but confirmed that 43 Q 126 44 Qq 8–9 45 Ev xx submission from Equality and Human Rights Commission page 3 46 Q 123 47 Q 124 48 Q 45 14 Transforming Courts and Tribunals: progress review sentencing reforms would increase the prison population by 2,000 by 2030. It also shared concerns about the capacity of the probation system to cope with increased demand given it is in the midst of significant reform.49

HMCTS told us that it expects to see a higher number of cases in both the magistrates and crown courts. It believed that it could flex its operations to adapt to greater volumes of cases if this is properly funded. However, HMCTS did concede that at the very upper end of the projections it would have serious concerns about court maintenance if it needed to run courts at maximum capacity.50

We asked about the decision not to reduce the court backlog of criminal cases. The Ministry opted to reduce its allocation of court sitting days next year and therefore limit the number of judges available to sit in court, and court sessions. This will maintain the number of outstanding criminal cases in the backlog at the same level.51 The Ministry told us that it was a conscious decision to keep the backlog at existing levels, rather than direct funds to reduce it, although it keeps this strategy under routine review.52 HMCTS said that average waiting times for trials are the lowest in four years. However, those who plead not guilty are still waiting more than half a year—28 weeks—to get a trial, with those on bail waiting 21 weeks. Similarly those on remand are waiting almost 13 weeks in prison. Whilst HMCTS noted that this was the lowest for four years, both it and the Ministry acknowledged waiting times were a concern.53 49 Qq 46–48 50 Q 46 51 Q 50; https://www.lawgazette.co.uk/news/crown-court-sitting-days-decision-political-senior-presiding- judge/5101368.article 52 Q 50 53 Qq 52–54 Transforming Courts and Tribunals: progress review 15