28.The story of impact of the Covid-19 crisis on the civil courts and tribunals has been different from the experience of the criminal courts. Digital technology has enabled certain civil jurisdictions to operate close to normal pre-Covid-19 levels. On 22 May 2020 the Lord Chief Justice told the Committee that “in the High Court and in the business and property courts around the country, in the region of 80% of the ordinary business is being transacted”.40 However, certain civil jurisdictions, notably the Family Court and the Employment Tribunal, have seen a rise in the number of outstanding cases since the beginning of the Covid-19 pandemic.
29.Even if certain civil jurisdictions are not accumulating the same rate of outstanding cases as the criminal courts, they are nonetheless facing major challenges, some caused by Covid-19, others that are pre-existing and which have been exacerbated by the crisis. Many of these challenges need carefully crafted solutions that can be delivered quickly. In this short section it is not possible to cover all civil jurisdictions, and instead we have focused on a small number. Chapter 4 on technology also addresses the impact of Covid-19 on civil jurisdictions.
30.On 23 June 2020, the Lord Chancellor and Secretary of State for Justice, Robert Buckland QC, told the Committee that he was “concerned” about the backlog in both public and private family law cases.41 HMCTS’ weekly management information shows that as of 24 May 2020 there were 13,504 outstanding public family law cases (a rise of 1,209 from the pre-Covid-19 baseline) and 47,011 private family law cases (a rise of 4,706 from the pre-Covid-19 baseline).42 On 22 May, the Lord Chief Justice told the Committee that “the position is less rosy” in private than in public family law.43
31.In the Family Court, it is clear that the Covid-19 crisis has caused problems that technology cannot mitigate. On 9 June 2020, the President of the Family Division, published ‘The Family Court and Covid 19: the Road Ahead’.44 Sir Andrew McFarlane reported his concerns at the number of cases that continued to come into the Family Court which was already “attempting to process an unprecedented level of applications relating to children”.45 The report highlights that after an initial dip at the beginning of the lockdown, receipts in the Family Court have continued at normal levels overall, but have risen significantly in certain areas, such as domestic abuse injunctions.46 Sir Andrew McFarlane’s report contained a stark warning:
The reality to be faced is that the Family Court must now, for a sustained period, seek to achieve the fair, just and timely determination of a high volume of cases with radically reduced resources in sub-optimal court settings.47
To meet this challenge, the report outlines that the Family Court will need “a very radical reduction in the amount of time that the court affords to each hearing”.48
32.On 4 May 2020 Chris Philp gave an update on the number of outstanding cases in tribunals:
Receipts into the immigration tribunal are down by 88%, but the disposals—the actual cases decided—are down by only 55%. As a consequence, the outstanding caseload is flat to slightly down. You get that sort of picture across all tribunals. Receipts are down hugely and disposals are down a bit, so the outstanding caseload is fairly flat.49
33.Tribunals have made extensive use of remote hearings. On 23 June 2020, Susan Acland-Hood explained that certain tribunal jurisdictions have been able to have substantive hearings on audio and video, which have meant that they have been “operating at close to full capacity”.50
34.On 23 June 2020, Susan Acland-Hood reported that in relation to employment tribunals HMCTS had “not been able to get technology engaged, for regulatory and legislative reasons”.51 HMCTS’ weekly management information states that as 24 May 2020 there were 35,078 outstanding single claims in the Employment Tribunal, up by 3,891 from the pre-Covid baseline of 30,687.52
35.There have been a range of changes made to the operation of tribunals to adapt to Covid-19 through both statutory instruments and practice directions.53
36.On 9 April 2020, the Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 came into force. This statutory instrument temporarily enables tribunals to make a decision on the basis of papers without the parties’ consent and to conduct remote hearings in private if it is not practicable for that hearing to be broadcast or accessed by a media representative. The Joint Committee on Statutory Instruments asked the Government to explain whether such measures were consistent with the statutory requirement that “the tribunal system is accessible and fair”.54 The Government explained in response that the provisions are intended to operate only as a temporary “fall back” and are therefore consistent with the statutory requirement.55
37.There have been other permanent changes to the way that tribunals work in response to Covid-19. The Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) Regulations 2020, which came into force on 8 June 2020, introduce two new standard fees for asylum and immigration (non-asylum) appeals to the First-tier Tribunal (Immigration and Asylum Chamber) which use the new online procedure. These fees are a product of the acceleration of the digitisation of the First-tier Tribunal (Immigration and Asylum Chamber) in response to the coronavirus pandemic. The House of Lords Secondary Legislation committee criticised the timing of the consultation on these changes, which began on the day the instrument was laid, describing that as “poor practice”.56 The Immigration Law Practitioners’ Association has also criticised the Government’s approach to consultation on this regulation, and has argued that it will “inevitably deter people from taking on the more complex cases” and “that the proposed fixed fee will do irreparable harm to the sector”.57 Whether this is correct will become clear in due course, but the Committee is concerned that Covid-19 should not be used as an excuse for bringing in permanent changes without prior consultation and suitable evaluation of their effects.
44 Sir Andrew McFarlane, The Family Court and COVID 19: The Road Ahead, June 2020
45 Sir Andrew McFarlane, The Family Court and COVID 19: The Road Ahead, June 2020, para 8
46 Sir Andrew McFarlane, The Family Court and COVID 19: The Road Ahead, June 2020, para 7
47 Sir Andrew McFarlane, The Family Court and COVID 19: The Road Ahead, June 2020, para 9
48 Sir Andrew McFarlane, The Family Court and COVID 19: The Road Ahead, June 2020, para 43
51 Q199; for information on employment tribunals response to Covid-19 see: Courts and Tribunals Judiciary, Employment Rules and Legislation: Practice Directions (Last accessed 13 July 2020)
53 Courts and Tribunal Judiciary, Coronavirus (COVID-19) advice and guidance (Last accessed 13 July 2020)
54 Joint Committee on Statutory Instruments, Eleventh Report of Session 2019–21, HL 61, HC 75-xi, para 6.2 and Appendix 6
55 Joint Committee on Statutory Instruments, Eleventh Report of Session 2019–21, HL 61, HC 75-xi, para 6.2 and Appendix 6
56 Secondary Legislation Scrutiny Committee, Sixteenth Report of 2019–21, HL Paper 68, para 42.
57 ILPA, ILPA’s statement on the new immigration and asylum legal aid fixed fee (18 May 2020)
Published: 30 July 2020