The impact of court backlogs on our constitution

Work with offenders on a critical new report from a powerful Westminster institution.

You know things are getting serious when the Constitution Committee gets involved. The normal role of the Committee is to examine “the constitutional implications of public bills coming before the House and keep under review the operation of the constitution and constitutional aspects of devolution.” The Committee differs from many select committees in that its membership is drawn from the House of Lords rather than the House of Commons.

So when, as they have done in a report published today, the Committee strays from this remit, it is always a newsworthy event. The report in question is the first of three reports on the constitutional implications of COVID-19, and focuses on the impact of the pandemic on courts and tribunals in England and Wales.

The report highlights the seriousness of the current situation for the implementation of justice in our country. It says that reduced funding for the justice system left our courts and tribunals in a vulnerable condition going into this period of crisis. Over the decade preceding the pandemic, Government funding fell significantly, legal aid budgets were radically reduced and court buildings were closed. These pre-existing challenges exacerbated the devastating impact of the pandemic on courts and tribunals in England and Wales.

The Committee concludes that the sudden shift to remote hearings, necessary to maintain the operation of the justice system during the pandemic, has 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.

The concern for constitutional issues is clear when the Committee makes the point that operational changes introduced in response to the pandemic should not be regarded as irreversible where they have risked undermining access to justice, open justice or consistency in the application of the law. There have been widespread concerns about such issues as extending the length of time that people can be remanded in custody while awaiting trial. The Committee recommends that the Government continues to invest in and develop the technology for remote hearings and the guidance to support it, learning the lessons from its use during the pandemic. It also stipulates that should be an ongoing process of engaging with researchers and the legal sector to ensure that access to justice is secured via remote hearings.

The Committee draws attention to the impact of the pandemic on Legal Aid cases in particular, saying that interruption to the normal operation of the courts has had a detrimental impact on the publicly funded and legally aided sectors of the legal profession, worsening barriers for accessing legal representation. The Committee recommends that the Government further increases the legal aid budget to meet the new challenges for access to justice that have arisen during the pandemic.

The main focus of the report, however is on the ever-growing court backlog which means that Crown Court trials are currently being scheduled for 2022 and even 2023. The report says that the challenges of delivering courtroom-based justice during the pandemic has had a detrimental impact on the flow of cases through the courts and it may take several years before the backlog of criminal, family and employment cases returns to 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. The Committee recommends that the Government sets out a plan for addressing the backlog that will reduce it well below pre-pandemic 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. The Committee makes a clear call for the Government to invest more in these measures.

Finally, the report notes that the 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. The Committee recommends that the Government make clear commitments to data reform across the courts service, prioritising the collation of data that will enable it to identify the effects of remote hearings on non-professional and vulnerable court users.

Baroness Taylor, Chair of the Constitution Committee, makes the Committee’s concerns plain:

“There is much work to be done to address the constitutional consequences of the pandemic for the courts. The Government needs to renew its vision and increase the funding to achieve it. For justice to be done, and be seen to be done, considerable new effort and investment is required.”