The senior judge in charge of modernising the courts service has hit out at ‘ill-informed comments’ from lawyers and ‘misunderstandings’ about controversial plans to test out-of-hours courts.
In a letter despatched over the weekend, Lord Justice Fulford sets out to ‘demystify’ the flexible hours courts pilot, insisting the plans are ’not a disguised attempt to persuade, or force… legal professionals and others to spend more time at court than they do at present’. The letter was sent to all judges via the judicial intranet and the Law Society and Bar Council, a spokesman for HM Judiciary said.
Court sessions will be split so as to enable a longer court day - but populated by different people, the judge says.
Last week HM Courts & Tribunal Service confirmed details of the new pilot, to take place over six months from this autumn. Six courts have been selected, as was mooted back in March before the testing was put back by the general election. The plans are proving highly controversial, with the Criminal Bar Association pledging to support barristers who refuse to participate in the ’fundamentally flawed’ scheme.
’In my capacity as the Judge in Charge of Reform, and in light of public comments – particularly from members of the legal profession – I thought it would be helpful to attempt to demystify the proposed Flexible Operating Hours Pilots,’ Fulford writes. ’I regret the extent of the widely-broadcast misunderstandings and ill-informed comments from a range of sources.
’The Judicial Executive Board has discussed the proposed pilots on a number of occasions. It is vital that we improve the use of the courts and tribunals’ estate. We already struggle to maintain our buildings and it is hard to justify spending scarce funds on courts and tribunals that are not adequately utilised. We must use our assets to the greatest possible (but always sensible) extent, without asking anyone to work longer hours than at present.’
Fulford acknowledges concerns raised by lawyers about the impact of flexible hours on diversity in the professions and how they will work. But he adds: ’We have listened to these concerns, but the whole point of running the pilots is to test fully all the concerns expressed. We approach this project with an entirely open mind as to whether flexible operating hours is a viable goal.
’If it works it works; if it doesn’t, it doesn’t…a significant, detrimental impact on diversity in the professions is not a price judges are willing to pay.’
Fulford notes that previous initiatives testing flexible court sittings have failed. But he stresses that lawyers are now operating in a ‘radically altered world’ in which ’digital and IT changes are transforming the opportunities for moving cases readily between judges, advocates and venues far more readily than in yesteryear, and there is a marked improvement in our preparedness to operate outside jurisdictional silos’.
The project team has developed an ‘Invitation To Tender’ to secure experts in independent evaluation.
Fulford stresses that there are no plans for a national rollout, concluding: ’If the ideas [the pilots] explore do not pass muster, then they will fade into history at the end of the six-month period. However, if any of the models succeed, we will consider with HMCTS the circumstances in which we may repeat the relevant arrangements on a more regular basis.’
Law Society president Joe Egan commented: ’Fees for criminal legal aid work were frozen in cash terms for more than 20 years, and then substantially cut. Criminal legal aid practices already operate at little or no profit. Under this new government plan solicitors would be expected to attend court during unsocial hours for no uplift in pay. Firms would have to pay out additional staff costs without any compensation. It is not acceptable to operate a pilot without paying solicitors properly for the additional cost they will incur as a result.’