Senior judiciary “inadequately resourced to deliver leadership”

Byrom: Support for leadership judges not fit for purpose

The senior judiciary is “inadequately resourced and supported” to deliver the leadership functions they are responsible for, a report for the Nuffield Foundation has found.

The comments came in a report that mapped the current issues in access to justice across England and Wales and the structural issues “that undermine our collective ability to address them”.

Dr Natalie Byrom, director of Justice Lab, said that while justice system leaders “expressed strong support” for digital and data-driven technologies, there was no “robust ecosystem of organisations” or any agreed standards to help consumers assess them.

In her report Where has my justice gone?, she highlighted deficiencies in the data that existed to understand people’s journeys to and through the justice system, as well as “over 80 key evidence gaps and priority research questions” that affected every stage.

“Taken as a whole, this document serves as both a call to action and the basis for an agenda, which, if delivered by researchers and implemented by policymakers, would transform the experience of the justice system for those who rely on it,” she said.

Addressing this required “both political will and consistent, credible action on the part of policymakers and justice system leaders, including the senior judiciary”.

It also required funders of research “to be prepared to invest at scale in developing the infrastructure to support evidence-based policy and practice”.

Dr Byrom, seconded to the Ministry of Justice (MoJ) between 2018 and 2020 as expert adviser on data relating to the court reform programme, detailed the many problems with the justice system and noted that “problems generated by the structure, culture, leadership and funding of both the MoJ and its component agencies have undermined attempts to put in place solutions to sustainably address access to justice challenges”.

She found too that “existing structures to support the senior judiciary in delivering their leadership and management functions are not fit for purpose”.

She went on: “Those members of the judiciary responsible for delivering leadership functions are required to do so alongside providing judicial case management, adjudication and judgment writing.

“In short, under existing arrangements, the senior judiciary are inadequately resourced and supported to deliver the functions they are responsible for.”

Dr Byrom said it had been argued that departmental leaders at the MoJ “tend to focus on prisons and criminal justice at the expense of other areas of policy”, particularly access to civil and family justice.

“In particular, the experience of attempting to deliver the £1bn programme of digital court reform, initiated in 2016, has exposed inadequacies in the framework agreement between the judiciary and MoJ that undermine the effective administration of the courts.”

The reform programme, which has been subject to significant delays and reductions in scope, was delivered by HM Courts and Tribunal Service (HMCTS), an executive agency of the MoJ that is “formally jointly accountable” to both the executive and the judiciary.

“However, experts have argued that in practice the partnership is weighted more in favour of the executive than the judiciary, due to disparities in responsibility and accountability for funding and resource management.

“Despite, or perhaps because of this imbalance, upward stakeholder management occupies a disproportionate amount of the HMCTS chief executive’s time (around 70%), undermining operational efficiency.”

In the context of the “extremely ambitious” court reform programme, structural issues “wasted time, created confusion, reduced transparency, delayed decision-making and undermined the efficient delivery of the programme”.

Justice system leaders “expressed strong support for an expanded role for digital and data-driven technologies” in the delivery of legal services and the justice system.

However, unlike the health sector, the justice system “does not benefit from a robust ecosystem of organisations tasked with quality-assuring these tools or agreed standards” to enable consumers to assess and compare performance.

“Gaps in existing regulatory frameworks mean that many products and tools are not covered by the remit of the Legal Services Act 2007, preventing consumers from accessing crucial protections.

“The current context led the cross-party House of Lords justice and home affairs committee to conclude that the implementation of these tools across the criminal justice system is akin to a ‘new Wild West’.

“Urgent investment is needed in both research to develop quality standards and advocacy to promote better regulation of these products and tools.”

Sir Ernest Ryder, the former Senior President of Tribunals, commented in a speech at the Nuffield Foundation’s justice conference this month that leaders of justice systems, including the judiciary, were obliged to “have regard to how their leadership of those systems impacts access to justice”, but “no-one can operate the levers of institutions, particularly institutions as complex as justice systems, without tools”.

“The lack of research and funding of research into reforms and also into the previously existing non-digital or analogue methods of making decisions, is marked.”

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