Recent news that the courts might be privatised was the first time the management of the courts had hit the headlines for years. A radical change to the way courts were run in 2003 attracted practically no comment. Yet without that change, privatisation would not be on the table.
Magistrates’ courts used to be run by magistrates and funded by local councils. Magistrates’ courts committees (MCCs) hired and fired court staff, including the justices’ clerk, and controlled the budget. Most of the money came from central government but local councils contributed 20% of the costs from their own funds. Central government always disliked the autonomy of MCCs and of justices’ clerks, and Lord Justice Auld in his report on the criminal courts agreed.
He suggested that MCCs were inefficient and ineffective. Needless to say, magistrates disagreed. The government decided to follow Auld’s recommendation to centralise the management of courts and with one fell swoop (in the 2003 Courts Act) the connections between magistrates’ courts and local communities were severed. Funding and control moved to the new Her Majesty’s Courts & Tribunals Service (HMCTS), which later merged with the Tribunals Service.
What difference has the centralisation of the courts made? The abolition of MCCs has marginalised magistrates. The Courts Act introduced Courts Boards, on which magistrates sat, but they had no real power and were soon abolished. So now magistrates have no influence over the running of the courts, despite having many ideas on how they could be run more efficiently. They do not even have a seat on the board of HMCTS, though three judges do.
They feel like hired hands, expected to preside over justice, but having no input into its administration. Centralisation has undoubtedly accelerated the closure of local courts. Many were closed before 2003, but not at the speed of recent years. There are fewer people going through the courts, so there is an argument for rationalisation but there is no means whereby local people (including lawyers) can influence the decision-making at an early stage.
The demise of the justices’ clerk is directly related to the centralisation of the courts. In 1990s there were around 200 justices’ clerks – important local figures who answered to the MCC, not Whitehall. There are now only 26 justices’ clerks so they each preside over many courts and thousands of magistrates. They are employed by HMCTS and lack the independence they enjoyed pre-2003. David Simpson, who was a clerk in West London in the 1990s said the old magistrates’ courts were like a family – everyone supported each other and staff were passionately loyal and committed to ‘their court’.
The old system, though, had its faults. Because they were semi-independent, MCCs may not have adopted best practice as quickly as they could, and economies of scale were more difficult to achieve. But it is not clear that the problems were so great that centralisation was the only answer. If the centralised courts system is now seen as inefficient why not re-localise rather than privatise? This is what a new report from Transform Justice argues.
Sometimes being near to the ground helps you see how savings can be made. Now is the moment to re-localise the magistrates’ courts by putting control back into the hands of either police and crime commissioners or local councils, or boards made up of local people. Police and crime commissioners already control the budget for crime prevention and for the police. They already employ administrative staff and have strong links with local agencies and people. Equally local councils used to administer the courts and now share responsibility for community safety. The third option is for courts to be run by local people appointed to sit on a board. The board should not be a re-creation of the MCC but have a mix of local magistrates, councillors and perhaps the commissioner on it.
Taking magistrates’ courts back into local control is a radical idea, but so is partially privatising the courts. And at least under local public sector control no one would have to worry whether corners were being cut to keep shareholders happy.
Penelope Gibbs is director of Transform Justice, a charity working for an effective justice system