Transforming courts and tribunals Contents

Conclusions and recommendations

1.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.

2.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.

3.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 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.

4.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.

5.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 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.

6.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.

Published: 20 July 2018