1.On the basis of a report by the Comptroller and Auditor General, we took evidence from the Ministry of Justice (the Ministry) and HM Courts and Tribunals Service (HMCTS) on early progress in transforming the courts and tribunals system. We also took evidence from the Law Society and Resolution, organisations who represent the legal profession, as well from the charity Transform Justice.
2.In 2016, HMCTS, an executive agency of the Ministry of Justice, established a transformation programme to modernise and upgrade the courts and tribunals system. It aims to introduce new technology and working practices to change the way criminal, family and civil courts and tribunals operate so that the system is more accessible, just and proportionate; in other words, courts are only used for those issues and cases that cannot be dealt with elsewhere. Broadly these changes aim to simplify procedures and move activities online and improve efficiency by reducing demand on court buildings. HMCTS is also reducing the size of its court estate and workforce and introducing new service centres to centralise administration and case management. Once the reforms are complete, HMCTS expects that 2.4 million cases per year will be dealt with outside physical courtrooms, it will employ 5,000 fewer staff, and reduce its annual spending by £265 million. The transformation programme is expected to cost £1.2 billion and take 6 years. HMCTS reached the end of the first stage of the programme in late September 2017, with the next stage due to complete in January 2019.
3.Collectively, the planned changes to the courts and tribunal system are on a scale never before attempted anywhere in the world. HMCTS told us that components of the reforms have been tested elsewhere in different contexts but that nobody has attempted the combination or scale of changes that HMCTS is attempting in this timeframe. It described the programme as “ground-breaking and world-leading”. The Ministry accepted that the reforms were very challenging and told us it had learnt lessons from its experiences of the Transforming Rehabilitation and Electronic Monitoring programmes. It acknowledged that, while not failures, both programmes took too long, were over-complex and difficult. It asserted that unlike these “monolithic programmes”, the reforms to the courts and tribunals system were more modular so that a mistake or missed milestone would not threaten the rest of the programme.
4.The reforms were originally due to be completed within 4 years but, following an external review and challenge from Cabinet Office and Treasury, HMCTS added two years to the timetable. HMCTS told us that six years was a “good, reasonable timeframe for a programme of this complexity.” However, Transform Justice spoke of the reforms “going like an express train” and the need to slow down to take stock and use the time to conduct research and consult properly. It raised particular concerns around the fact that many of the proposed changes have not yet been proven to work on a larger scale and about the unknown impact on access to justice and outcomes. This sentiment was echoed in written evidence from legal practitioners and academics, which also raised concerns that the speed of change and focus on efficiency could result in negative impacts. HMCTS acknowledged the importance of evaluation, testing and research, and the need to listen and consult before making changes. It accepted they could, and needed to, do more. However, it also spoke of the need to increase the pace of work in the remaining four years of the programme.
5.The reforms delivered 62% of the expected milestones at the end of the first stage of the programme. HMCTS asserted that a further 25% of the milestones from the first stage of the project had been partially delivered and that it had met the most critical milestones, and that only 2% of the milestones were holding up its progress with the programme. We were not, however, convinced this performance was good enough, or that HMCTS’ current level of progress was enough to ensure that it would complete the programme to revised deadline. HMCTS told us that it had improved its governance to give itself a better grip and had increased the pace of delivery.
6.HMCTS admitted that one milestone from the first stage of the project was still outstanding and admitted that it could cause difficulties for other projects if it was delayed any further. Part of the programme relies on making paper forms more accessible so that they can be scanned and digitally processed. HMCTS told us that it has printing services in place, and has let a contract for bulk scanning services, but these are not yet operational so it was having to use work arounds for the services that required it.
7.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.
8.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. This risk is increased by HMCTS’s poor progress measures. The NAO report 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.
9.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. 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. 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.
10.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.
11.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. 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. 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. 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. Examples given by the Bar Council included: difficulties attending 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.
12.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. 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. 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.
13.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.
14.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. After our oral evidence session, HMCTS published a Reform Update for the general public outlining its plans for the reforms.
1 Report by the Comptroller and Auditor General, , Session 2017–19, HC 1001, 9 May 2018
2 Qq 1, 3; , paras 3, 1.7, 1.11
3 Q 136; , para 1.13, 2.3
4 Qq 3, 76–77
5 Q 120
6 Q 90–92
7 Qq 49, 75
8 Qq 2, 5, 8
9 Magistrates Association (); Professor Pablo Cortes (); Professor Roger Smith (); Bail Observation Project ()
10 Qq 66, 211
11 Q 46, 50–52, para 2.7
12 Q 53–54
13 Qq 52–58, para 2.12
14 Q 78, , para 3.2
15 Qq 61–62, 64, para 2.5
16 , para 1.25
17 Qq 34–35, 39–40
18 Q 42–45; , para 1.25
19 Q79; , para 2.14
20 Qq 1, 5
21 Q 32; Magistrates Association ()
22 Qq 5, 7, 32
23 Q 5; Resolution ()
24 The Bar Council ()
25 Qq 5; 8, Bar Council (); Resolution (); Melanie Benn ()
26 Qq 8, 121
27 Qq 7, 19
28 Qq 67, 114–118, 139; , para 1.8
29 Qq 32, 102, Transform Justice ()
30 HM Courts & Tribuals Service, , 20 June 2018
Published: 20 July 2018