Court in the act

Shami Chakrabarti on our concerns with the government’s Courts and Tribunal Bill

I’ve spent my adult life fighting unjust laws but some legislation is unjust for the provisions it fails to make. In its Queen’s Speech, the government heralded a programme of reforms to transform the way that the UK justice system operates. The Courts and Tribunal Bill is not that. However, we are assured by ministers that this scant legislation represents only part of a broader package – in essence, the beginning of a ‘legislative drip-feed’. 

The much anticipated reforms, at the cost of £1bn+ to tax payers, would “modernise” the courts service by transferring more court hearings online or via remote video-links. Despite deferring appropriate parliamentary legislative scrutiny and debate, the government is pushing ahead with planned closures, cuts and growing reliance on digital courts. It has, since 2010, closed hundreds of courts and cut thousands of vital staff. 

In May 2018, the National Audit Office (NOA) released a report raising serious concerns, with the observation that “expected costs have increased and planned benefits have decreased” – £200m more than the government’s original projections. Concerns were compounded, when ministers admitted to not undertaking sufficient research into the impacts of court modernisation, including on the impact on victims and witnesses. It also refused to publish the business case. 

To understand the perils of justice reforms without sufficient research and consultation, we need only look at the impact of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO). The Public Accounts Committee made clear that in bringing this forward, the Ministry of Justice had not “properly assessed the full impact of the reforms”. That impact has proved devastating for some of the most vulnerable in our society, with a drop of 46% in the number of legal aid cases granted since the LASPO provisions came into force. 

It is essential that Clause 3 of this Bill, which delegates judicial functions to ‘authorised staff’ is understood in this broader context of a wider agenda and the austerity measures behind it. The savings generated will arise through the reduction of the court estate and savings on judicial salaries. Further proposals include the relocation of many case management functions (i.e. listings and scheduling) to new off-site service centres. The implication is that these will be supervised by ‘authorised staff’, not judges. 

Though, there is argument for the delegation of the most straightforward decisions to ‘authorised staff’, the devil will be in the detail. Without limits on who can be delegated what powers, these measures have the potential to change the essential nature of our judicial system. Such fundamental reforms require external scrutiny by parliamentarians and should not be decided exclusively by Procedure Rule Committees, made up predominantly of senior judges. 

As the legislation begins its passage through the Lords, Labour will be pushing for limits to the delegation of judicial powers and for base qualifications of ‘authorised staff’ to be included on the face of the bill. With a minimum safeguard ofe a statutory right of reconsideration by a judge for any party to a decision by an authorised person – as recommended by Lord Justice Briggs in his 2016 report. 

With this wafer-thin bill, the government appears to be testing the waters for more controversial court reforms. It is vital that we understand its provisions in the context of the broader agenda of reforms and devastating cuts. Nor should we be persuaded that the bill itself does not have the potential to profoundly impact our justice system. Without careful scrutiny and additional safeguards, the government’s drip-feed may erode some of our most fundamental institutions.

Baroness Shami Chakrabarti is Shadow Attorney General

Published 20th June 2018

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