When is a delay not a delay?

When I was considering throwing my hat into the ring to become Chair of the Bar, one of the things that almost put me off was having to write 12 columns for Counsel. How was I going to be able to come up with 12 different subjects of interest? You, of course, will be the ultimate judges of that, but this month’s was proving more than a little tricky. Then, like manna from heaven, Her Majesty’s Courts and Tribunals Service announced that there was to be an ‘extension’ of the finish date of the HMCTS reform programme, and a column started to crystallise.

As many of you will know, I am a criminal advocate, and there is nothing I like more than witnessing a great advocate use the English language to assist in whatever submission he or she is making. The cab-rank principle, of which I am a huge fan and will defend to the last, means that on many occasions an advocate will have to make submissions that do not coincide with his or her beliefs and which some may even consider distasteful. But we do it because it is important that no one is denied representation and because we are professional and put our personal views to one side.

I could not help but have a little smile to myself, therefore, when I read the press release from HMCTS, which is surely one of the greatest pieces of written advocacy I have seen in a long time. What you and I would probably consider a ‘delay’ is an ‘extension’ to the HMCTS ‘advocate’. This is the second ‘extension’ to an originally four-year programme which became a six-year programme and has now become a seven-year programme. So is that two extensions or a three-year delay? Of course, great advocacy is only effective if it is persuasive and accepted by the tribunal that is being addressed. And in this case that tribunal is you, the court user.

The HMCTS ‘advocate’ continued by indicating that HMCTS has ‘learned from the services it has already delivered and from the feedback from the Public Accounts Committee (PAC) and National Audit Office (NAO)’. Herein lies the next problem for the HMCTS advocate. These days tribunals rarely listen impassively. As most advocates will know, they are only too willing to ask questions or to probe what may be a rather shaky submission. The ‘feedback from the PAC’ would appear to be the report it published on 20 July 2018, some seven and a half months ago, in which amongst other things the PAC criticised HMCTS for ‘delivering only two-thirds of what it had expected to at that stage’ stating that HMCTS ‘still has not shared a sufficiently well-developed plan of what it is trying to achieve’ and concluding that it had ‘little confidence that HMCTS can successfully deliver this hugely ambitious programme to bring the court system into the modern age’.

The ‘feedback from the NAO’ would appear to be its report of 9 May 2018 which concluded that ‘there is a very significant risk that, despite the best efforts of HMCTS and other parties, the full ambition of the change portfolio will prove to be undeliverable in the time available. HMCTS will need to be flexible and to adapt its approach if things do not go to plan.’ So the questions to the HMCTS ‘advocate’ from the tribunal would surely be: (1) Has HMCTS really learned from the PAC and NAO feedback? (2) Why has it taken so long to learn? (3) Or is it the case that HMCTS has had to accept the inevitable that its plans are simply unattainable?

As I hope all of you who have paid any attention to my utterings so far this year will know, I am not against ambition. Nor am I against the modernisation of the courts or the use of technology. What I am against is using our precious court system as a guinea pig for an experiment that has not been well-planned and which would appear to have at its heart the aim to save the cash-strapped Ministry of Justice (MOJ) huge sums of money a year without having thought through the effects it will have on the wider justice system.

I can put it no better than last year’s Chair of the Bar, Andrew Walker QC when he said in July 2018: ‘There is much in HMCTS’s programme of reform that may deliver real benefits if it is done properly, and we welcome that warmly. Modernising our courts and tribunals, partly through digitisation and better use of existing and new technologies, is urgent and vital work. But HMCTS must not allow ambition to run too far ahead of what can actually be achieved and delivered.’

I have no doubt that Susan Acland-Hood, HMCTS Chief Executive, and her staff want to deliver a court service fit for the future. Their problem, it seems to me, is that they and the MOJ are hamstrung by the failure of HM Treasury to provide adequate funding for our justice system. Trying to provide a court service fit for the future based on making savings of £265 million a year is not the correct way to go about things. Now must be the time to accept that. Now must be the time to grasp the nettle and stop the ‘extension’ to the reform programme and think again. We must not let the desire to save money drive ahead a programme that threatens to damage our system of justice. And if the HMCTS press ‘advocate’ finds that he or she is out of a job, I am sure that on the evidence so far, they have a potentially promising future at the Bar. Providing there is still a Bar and a functioning court system in which to operate.