The Ministry of Justice (MoJ) yesterday moved away from the Conservative Party’s manifesto commitment to launch a Royal Commission on the criminal justice system.
It came in the MoJ’s response to the justice select committee’s April report on court capacity, which also highlighted the role of fee-paid judges in helping to meet the need for more judicial resource – the day after the Lord Chief Justice expressed concern about that very trend.
One of the committee’s recommendations was that the government should press ahead with its 2019 election pledge for a Royal Commission, noting how the evidence to its inquiry was that “the criminal courts are going through a period of significant change and the question of the role of technology in the courts is particularly pressing”.
A year ago this week, then justice minister Lord Wolfson told the House of Lords that the government was “absolutely committed to the delivery of this key manifesto pledge” but said the pandemic had slowed down progress.
He appeared to shift position during another debate in February, when he said the MoJ’s focus was on delivering new programmes it had begun in the preceding months.
Yesterday’s response took it further, saying: “Although the government recognises the opportunity that the Royal Commission presents to look at structural questions in the system, we are now taking the time to consider where a Royal Commission will add the most value to the substantial cross-departmental work already underway.”
The select committee report found that while the build-up of court cases was partly attributed to disruption from the pandemic, long-term staffing issues in the judiciary and HM Courts and Tribunals Service (HMCTS) played a significant factor.
Another issue was a failure to address maintenance issues in the physical court estate.
On judicial resource, the MoJ pointed to larger recruitment exercises it was carrying out, along with the importance of a “healthy fee-paid pool” to meeting the need for salaried roles.
Since 2017, it said, the pool of fee-paid judges has increased by 12% and the cadre of deputy district judges was 27% larger.
Recorder recruitment (i.e. fee-paid circuit judges) has met or exceeded the original vacancy request in each of the last three years and there were 30 more deputy High Court judges than in 2017.
“Recruiting sufficient salaried judges has been challenging, but the MoJ has been proactive in overcoming these challenges,” it went on.
The MoJ said pension reforms that took effect from April meant a 17% uplift in remuneration for district judges and 20% for circuit judges.
It has also “adjusted its recruitment approach” – for example, by reducing from 30 to 15 days the sitting experience required for those applying to be a district judge – and raised the judicial retirement age to 75.
Any shortfalls in recruitment of salaried judges would be mitigated by several measures, including increasing recorder recruitment and allowing crime recorders to sit for more days, as well as more flexible deployment.
The MoJ said it had also taken a “major step in tackling longstanding issues around pay and reward and improving pay significantly across HMCTS”.
The investment in criminal legal aid – currently the source of industrial action from criminal barristers, of course – would help ensure a “thriving legal sector” to meet future judicial resourcing needs, the MoJ went on.
“The government is also looking at increasing the opportunities for CILEX professionals across the justice system – including making it easier for them to become duty solicitors to increase the sustainability and stability of the provider base. This could provide a further pipeline into the judiciary.”
In his speech on Wednesday to the annual judges dinner at Mansion House in London, Lord Burnett, the Lord Chief Justice, spoke about the struggle to fill vacancies for salaried roles.
“One reason, which I hear from judges all over the country, is that as salaried judicial office has become more onerous, fee-paid office, sometimes combining a number of fee-paid offices, has become more attractive. There is truth in that observation… This now needs to be addressed.”
While the career commitment of salaried judges “enhances the independence of the judiciary as a whole”, fee-paid judges were “something else first and part-time judges second”.
Lord Burnett acknowledged that fee-paid judges provided flexibility to help manage variable workloads and allowed lawyers to see whether they liked judging.
“The pressure of business following the pandemic coupled with a shortage of judges in some jurisdictions has made us more reliant on fee-paid judges, particularly recorders and deputy district judges. But we will need to restore the balance when we can.
“The broad aim will be to have a significant difference between the minimum time a salaried part-time judge can sit and the maximum a fee-paid judge can sit. We will also look at terms and conditions to ensure that they do not positively benefit fee-paid judges at the expense of salaried judges.”
On other recommendations from the justice committee, the MoJ knocked back the call to reintroduce a courts inspectorate.
It said: “The work of the courts and tribunals is scrutinised by numerous parliamentary committees and inspectorate reports, with HMCTS being governed under a clear constitutional framework that is overseen by ministers and the senior judiciary…
“To re-establish a courts inspectorate would require significant long-term resourcing which we are not currently set up to deliver.”
But it said it would consider creating a coroner service inspectorate, while “continue to seek further funding” to improve the condition of the court and tribunal estate.
Separately, London solicitors Mishcon de Reya – acting pro bono for the Criminal Bar Association – has sent a letter before claim over Lord Chancellor Dominic Raab’s decision not to apply any increase in barristers’ fees to existing criminal legal aid cases, which the MoJ said would require a retrospective change to a contractual relationship.
The letter argued that this was wrong in law, saying the Lord Chancellor could both increase and decrease fees payable to criminal advocates under the legal aid regime at any time, as happened in 2013, when the MoJ reduced fees for existing representation orders in certain matters by 30%.
In response, an MoJ spokesman pointed Legal Futures to a statement made in Parliament earlier this week by then legal aid minister James Cartlidge, in which he said a 15% increase for criminal barristers from September was “a very generous offer”. Barristers argue that the increase does not amount to 15%.