THE COURTS IN AN ERA OF AUSTERITY: BROKEN LIFTS AND BROKEN PROMISES
It would be a pity if the speech of Sir James Munby THE FAMILY COURT IN AN ERA OF AUSTERITY: PROBLEMS AND PRIORITIES is only read by family lawyers. There is much of interest to all litigators. It was a speech given in 2019 and, so far as I can tell, things have got worse not better. The state of lifts in court buildings is becoming an important symbol. Even today there were comments about the lifts not working at Central London County Court. I had to call for counsel to be rescued from a broken lift shortly before Christmas.(The Reading County Court Lift Twitter account followed a visit I took to that court and comments on the lift (but I am not responsible for the account – nor do I know who is).
“One, which exemplifies the shocking condition of the court estate, are the ongoing problems with court lifts, which are the subject online of much mirth, ridicule and justified complaint. Some lifts – Reading County and Family Court is a notorious example – have been out of action for many, many months. The Reading lift, indeed, had its own twitter account!”
THE SPEECH
The full speech is available on the links provided.
“The truth, though those in power will never admit it, is that there is inadequate recognition both of the vital importance of the rule of law and of the equally vital need to ensure that our justice system is properly funded and resourced. Without the rule of law, and without a properly resourced justice system, there can be no democracy, no fair and stable civil society, and, indeed, no thriving economy. The rule of law, and its essential concomitant, a properly resourced justice system, is not some optional extra; at root, the first two responsibilities of any Government must be defence – protection from our external enemies – and a justice system adequately resourced to maintain and enhance the rule of law.
A striking example is the failure, for whatever reason, of Government to respond with appropriate determination and urgency to the crisis in judicial recruitment. Although there are emerging signs of difficulty in recruiting judges (and magistrates) at all levels of the system, the most obvious manifestation of the crisis is the fact that the High Court Bench is no fewer than 14 judges understrength. That astonishing and deeply worrying state of affairs is unprecedented in all the centuries of our legal system. That we should ever find ourselves in this situation would have been unimaginable when I was appointed in 2000. What has happened? That is a very large question and I do not have the time to attempt to answer it. There is, however, one striking, almost shocking, fact to which I draw your attention. In the 2016 Judicial Attitude Survey, published in February 2017, and which achieved a 99% response rate, only 2% – yes, only 2%, 38 of the 1,559 judges responding – felt valued by Government. There is obviously something very, very wrong here.
What has been the response from Government? I fear somewhat muted in the face of what some may think a potentially existential threat. On 5 June 2019, in a Press Release headed Government acts urgently to protect judicial recruitment the Lord Chancellor announced interim measures to address the problem. Reassuring words, until one remembers that the relevant report of the Senior Salaries Review Body had been on his desk since October 2018, and notes the admission in the Press Release that “The impact is already being felt in the family courts, where a shortfall of judges is contributing to significant delays in child care proceedings.” We must all hope, as I do, that these belated measures will go a significant way to ameliorating the situation. I cannot escape the lurking fear that it is all ‘too little, too late.’ I shall be delighted if my pessimism turns out to be wildly misplaced.
Focusing more specifically on the family justice system, the current reality can be summarised in three ‘big’ points:
-
The entire system is inadequately funded and resourced; in particular there are not enough judges to handle caseloads which, overall, continue to increase. The simple fact is that the system is coping – though in truth it is not really coping – only because everyone, and not just the judges, is over-working. The system is already unsustainable and unless urgent action is taken things will only get worse.
-
The withdrawal of legal aid has led to many parts of the family justice system becoming increasingly ‘lawyer free zones’, which has led to additional pressures on the system. This is not, I stress, the fault or the responsibility of these litigants in person. On the contrary it is in overwhelming part the consequence of a system whose rules are, for the typical lay person, of unintelligible complexity and which, even now, despite many useful initiatives, still provides far too little user-friendly information, guidance and assistance for the litigant in person.
-
Few savings in terms of what goes on in the courtroom can be expected either from the ongoing process of family justice reform – as you will know, being taken forward with determination by the President of the Family Division – or by even the most successful digitalisation of the process. Full implementation of the President’s ambitious programme will, I am sure, significantly improve family court processes, in particular improving the ‘experience’ for those using the system and improving the outcomes for children and families. But it will not save, nor is its fundamental purpose to save, money. The many inefficiencies in the system have, by and large, already been stripped out; and the (gu)es(s)timated savings of 10% to accrue from digitalisation will not bring much relief if the caseload continues to rise annually by something approaching the same figure. The real savings from digitalisation – and they will, if all goes well, be massive – are in relation to ‘back office’ functions.
For the typical family practitioner, whatever their particular professional background, there are, if blogs and tweets are anything to go by, a number of recurring complaints. A proper analysis of all this, something one hopes is being undertaken on a rolling basis by the powers that be, would be of enormous interest if, I fear, making for depressing reading. I take just two examples:
-
One, which exemplifies the shocking condition of the court estate, are the ongoing problems with court lifts, which are the subject online of much mirth, ridicule and justified complaint. Some lifts – Reading County and Family Court is a notorious example – have been out of action for many, many months. The Reading lift, indeed, had its own twitter account! I am told that the Reading lift has now been fixed. That is welcome if sadly belated news, though another defective lift, at another court, has recently also acquired its own twitter account. I understand that 23 lifts, out of nearly 1,000 across the estate, are currently out of order. That this is only some 2% of the total is no comfort at all to those adversely affected by the 23 – which is, it might be thought, far too high in absolute terms, quite apart from the astonishingly long time it seems to repair some of these lifts. This would not be tolerated in the private sector: what, after all, would your clients think if you had to tell them that the lift had been out of action for some months awaiting a spare part that can only be sourced abroad and that, no, sorry, you cannot say when it will be back in action. Nor, of course, is this kind of thing tolerated in the Westminster Headquarters of the Ministry of Justice.”