The Lord Chief Justice has described as “idiotic” the way HM Courts & Tribunals Service (HMCTS) trains good staff, only to lose them to government departments which pay more.
Lord Burnett also said it was “absolutely vital” that civil and criminal courts operated at full capacity from now on to clear the backlogs which have built up over the pandemic.
Addressing the House of Lords constitution committee, Lord Burnett said HMCTS had agreed last summer to recruit 1,600 more staff, particularly to support the courts in remote working.
He said slower recruitment processes in the public sector caused him “mild frustration”, but the retention problem was “really serious” for HMCTS.
The amount court staff were paid was “rather less” than that received by equivalent grades at other central government departments, such as HM Revenue & Customs or the Ministry of Defence.
Lord Burnett said the situation where someone joined HMCTS and was trained to do a particular job only to transfer to another department because the pay was better “happens all the time”, meaning that the lost “talent and experience” had to be replaced by more expensive temporary staff.
“It is absolutely idiotic that HMCTS recruits good people and trains them and then effectively loses them. It shouldn’t be allowed to happen in any sensible organisation.”
He added that the Ministry of Justice (MoJ) was working on a solution to the problem, but it would require Treasury funding.
The Lord Chief said both criminal and civil courts would be operating “at full capacity” this financial year, with no restrictions on sitting days.
“My plea is that what is happening this year is not a temporary sticking plaster.” He said it was “absolutely vital” that the courts continued to operate at full capacity in all jurisdictions to reduce outstanding caseloads.
Lord Burnett said he had spoken to the Prime Minister about this, who agreed with him and he hoped could persuade the Treasury.
He said HMCTS and the MoJ put the “final business case” for the court reform programme to the Treasury at the end of last year, which was accepted, although what did not follow was “a cheque to pay for it”.
Funding would continue until the end of this financial year, with the MoJ and Lord Chancellor, Robert Buckland, needing “all his skills of advocacy” to negotiate more.
When the modernisation programme ended, which he expected it to by the end of 2023, he was concerned that the government might take the view that it had “been done” and “a line would be drawn” on future funding.
If this happened, the courts would simply return to the situation they were in before the reforms with “antiquated technology”.
Lord Burnett said Nightingale courts had made a “significant” contribution to increasing court capacity in the pandemic, the majority of them being used by Crown Courts and currently accounting for 10% of Crown Court capacity.
Referring to the review chaired by Sir Christopher Bellamy QC of criminal legal aid, the LCJ said it would look “not only at remuneration rates” but the structure of the service.
There was a concern that lawyers were not incentivised to “get on top of cases at an early stage” and instead “encouraged to let them trickle on”.
Lord Burnett described civil legal aid, where funding was “very rarely available”, as “ripe for review”, though it was more the province of the Master of the Rolls, Sir Geoffrey Vos, than him.
He added that the problem in private family law, where legal aid had “virtually disappeared”, was that “huge numbers of family litigants” lacked the lawyers to resolve their problems.