A well-functioning justice system is essential to a well-functioning society. Yet our justice system had been neglected for years before the pandemic hit. This exacerbated the devastating impact of Covid-19 on our courts and tribunals.
Not long after Covid-19 changed life as we know it, the House of Lords Constitution Committee, which I chair, launched an inquiry into the constitutional implications of the pandemic. Now we have published the first of three reports on this subject, which looks at the impact of Covid-19 on courts and tribunals in England and Wales.
There has been a monumental effort by all working in our courts service to maintain a functioning system. But recognition of this fact should not obscure the scale of the challenges now facing our justice system. Without urgent government action and additional resources, access to justice remains at risk.
A system under strain
When the first nationwide lockdown was announced, a system that depended on the assembling of citizens—judges, lawyers, defendants, jurors, witnesses, court staff and others—faced a significant task to deliver its essential functions.
This would have been a real challenge for any justice system, but our courts had been left in a vulnerable condition going into this crisis. In the decade preceding the pandemic, government funding had fallen by over 20 per cent in real terms, legal aid budgets had been slashed, and a significant proportion of court buildings had been closed. The backlog of cases in the criminal courts already exceeded 400,000 well before Covid-19 hit.
Meanwhile, the government had failed to take actions that could have alleviated the devastating impact of the pandemic. A programme intended to modernise court technology and processes was underfunded and well behind schedule. Risk assessments undertaken by the Ministry of Justice had not prepared the courts service for anything like the reality of the challenge it has faced.
Remote justice
The rapid adoption of remote technology, meanwhile, had an uneven impact across the courts service. Senior courts, and those dealing with commercial cases, adapted relatively well. The lower courts, which deal with the majority of cases and those litigants who are most vulnerable, have had a more difficult time.
Attending court can be a stressful and alienating experience. The outcome of a case can be life-changing for the individuals involved. That is true of many criminal, family and employment cases where emotions run high and users' perceptions of fairness are fragile. Remote technology has heightened the challenge of managing such concerns and generated new barriers to access.
To ensure access to justice is sustained while social distancing measures remain in place, the government must ensure clear and accessible guidance on virtual hearings is made available to all court users, judges and court staff—the guidance currently available is extremely limited and does not take account of the full range of challenges that may arise. The legal aid budget should also be further increased to counteract new barriers to access.
Backlog of cases
Not all types of case can take place remotely. The challenge of delivering courtroom-based justice during the pandemic has interrupted the flow of cases and it may take several years before the backlog of criminal, family and employment cases returns to—still unacceptably high—pre-pandemic levels. The human cost of the backlog can be measured in part by defendants being held on remand in prison for longer, litigants and victims waiting longer for justice, and a greater likelihood of evidence being lost or forgotten during the lengthier waits for a hearing.
To tackle the backlog, the government has invested more money in the courts and opened temporary Nightingale courtrooms to increase the size of the court estate available. These are necessary and welcome steps, but they are not sufficient. We have recommended that the government set out a plan that will reduce the build-up to well below pre-Covid levels.
This should include plans to make maximum use of existing real estate, open more Nightingale courtrooms, increase the number of sitting days, and increase the number of part-time and retired judges sitting. All of this will require additional investment by the government.
Data deficiencies
These difficulties faced by the justice system during the pandemic have been exacerbated by a lack of data across the court service. Without adequate data, fundamental questions about the operation of our justice system remain unanswered.
How accessible are the courts to the average citizen in need? Do remote hearings impact case outcomes? Are Nightingale courtrooms being utilised effectively? Neither we nor the government know the answer to any of these questions. The basic data required to answer them is simply unavailable.
High-quality information is critical to building public trust in the justice system and ensuring court services are delivered fairly. The government must implement a robust strategy for data collection, analysis and publication, and commit to clear timelines for its implementation.
There is much work to be done to restore our cherished justice system. It is imperative that the government now set clear targets for reducing the backlog, commit to improving data collection across the courts service, and deliver the funding necessary to secure access to justice for all court users.
