Advocates unable to cover extended operating hours in the courts will likely lose work and could be driven out of the profession as a result, a high-profile group of women barristers has told the government.
The Western Circuit Women’s Forum (WCWF) is among many organisations that have expressed alarm, with the Criminal Bar Association is also urging the Equality and Human Rights Commission to investigate.
HM Courts & Tribunals Service (HMCTS) ran pilots at seven courts in the autumn that saw them have two separate morning and afternoon sessions of 9am to 1pm and 2pm to 6pm. Another courtroom operated on standard hours.
It plans to roll the model out to 65 Crown Courts next month in a bid to reduce the backlog of cases – which was already huge before Covid – that has grown further during the pandemic.
In its response to a consultation carried out by HMCTS – to which the profession had just 11 working days to respond – the WCWF said it has “serious concerns” about the suggestion that practitioners could avoid listing difficulties by requesting that hearings take place during standard operating hours if they are unable to attend an extended sitting hours court.
It said: “In our assessment, this places an unacceptable burden on those with caring responsibilities to disclose aspects of their personal lives to the court, their opponents and both their lay and professional clients.
“Many lay and professional clients may feel they have no other option but to instruct an alternative barrister who can commit to an extended hours listing so that the case is heard.”
Practitioners would be placed in the “impossible position” of having to weigh their personal commitments against the interests of their client, it went on.
“For example, a client’s interests might be better served by them being represented by someone without child-care responsibilities who could represent them sooner in an extended operating hours court. What is the barrister supposed to do in those circumstances?
“The inevitable result of extended operating hours is that many practitioners with caring responsibilities will simply not be able to conduct the same amount of work as those who are able to accommodate longer sitting hours.
“This will lead to a loss of income and the inevitable consequence of many barristers choosing to leave the profession. We fear that most of these barristers will be women.”
The WCWF recommended instead using more part-time judges and Nightingale courts during normal operating hours.
As well as being sceptical of how effective extended hours would be – and even if they were, “it comes at too high a price” – the forum said it was concerned that the scheme would end up being permanent.
The Criminal Bar Association has instructed London solicitors Mishcon de Reya to ask the Equality and Human Rights Commission to invoke its powers under section 31 of the Equality Act 2006 to assess the extent to which HMCTS has complied with its public sector equality duty.
The letter said: “The CBA is deeply concerned that HMCTS is using the Covid-19 pandemic as an excuse to drive through, without meaningful consultation, reforms to court operating hours that have previously been shown to be unworkable and discriminatory…
“We understand from our client that this is likely to have an immediate impact on the diversity of the junior bar and composition of jury panels. There is a well-founded fear, based on reports from a cross-section of the CBA membership, that the introduction of the scheme would accelerate the departure of many including junior female practitioners, in particular, from the profession.”
There would also be a discriminatory impact on the basis of race. Mishcon noted that less complex cases would be dealt with during extended hours – these were “typically dealt with by more junior practitioners who are more likely to be from black or minority ethnic backgrounds.
Those of certain religions or with certain disabilities could also be put at “a particular disadvantage”, it said.
The letter recounted that HMCTS had acknowledged in a webinar that there was a possibility that barristers with caring responsibility, who are disproportionately women, would not be given briefs by their chambers or clients may decline or wish to change their representation if their lawyer cannot attend an extended hours hearing, rather than wait for a standard hours one.
Mishcon has also written to HMCTS to request that it suspend the move given the shortcomings of its work to assess the equality implications.
In its response, the Law Society said it remained to be convinced that Covid operating hours have so far delivered, or would deliver in future, any significant additional court capacity.
President David Greene said: “Although more cases have been disposed of during Covid operating hours, it appears to have been largely due to the fact that shorter, less complex cases are allocated for these times, which means that a greater number of cases can be allocated, and therefore a greater number of those cases crack.
“It’s our view that the vast majority of the benefits observed in the pilots would equally have been delivered had the same mix of cases been allocated to courts operating normal court hours.
“Given the additional costs of running Covid operating hours courts we do not believe these proposals deliver value for money for the taxpayer or will achieve the objective of clearing the backlog.
“We are also concerned about the potential for discrimination to members with caring responsibilities.
“We believe the additional resources it takes to run Covid operating hours should instead be used to open additional Nightingale courts – which would increase court capacity and do much more to reduce the case backlogs.”
The society also expressed concerns about the short consultation timeframe, insufficient data to support the roll-out and a lack of transparency around the duration of the proposals.