Give us the cash, says top judge

Or backlogs of cases waiting to be heard will get even worse

The most senior judge in England and Wales has told the government that more funding will be required if the courts are to clear Covid-related backlogs.

Lord Burnett of Maldon delivered a blunt warning to the chancellor of the exchequer, Rishi Sunak, in oral evidence to the Commons justice committee last week.

The lord chief justice also criticised the police for slowing down the work of the magistrates’ courts to save money. He was scathing about lack of investment in the county courts.

Burnett (pictured) noted that government-imposed limits on the number of days the courts could sit had been lifted this year. He went on:

If we have a courtroom that we can use and a case is able to be tried in it, we will do so, irrespective of whether technically we are running up against sitting day limits.

In my view, it is absolutely vital that the same approach is adopted next year. I would be disappointed — that is a very mild word — should funding from the Treasury to the Ministry of Justice not allow for that because, if it does not allow for that, the danger is that much larger backlogs are baked into the system.

He mentioned the family courts as an example. There were 17% more care cases waiting to be heard last month than in October 2019. Divorce-related proceedings were 22% higher.

I am extremely concerned to avoid the position that would result in the backlogs that we have inevitably accumulated during Covid being viewed by anybody as a new normal. In other words, funding must be provided to enable us to deal with the work coming in and to deal with the backlog.

Burnett was also highly critical of police forces across England and Wales for announcing that they would withdraw from a pilot scheme that allowed remand hearings in magistrates’ courts to be conducted remotely from police stations. He acknowledged that it was resource-intensive for the police because they needed to staff the video-suites.

“All the chief constables of England and Wales have indicated that they will withdraw from this scheme at some point during December,” the chief justice disclosed. That had “some pretty adverse consequences”.

First, it would increase the risk of infection in magistrates’ courts because more people would have to attend. Secondly, it would lead to delays because there was not enough room in the cells to cope with the current throughput.

“I deeply regret the decision made by the chief constables, Burnett said.

I hope I am not being too cynical in suggesting that money may be at the heart of it. If the problem is money, it seems to me that the home secretary and the lord chancellor should be in a position to sort it out. To my mind, it would be deeply regrettable if video remand hearings were unilaterally stopped with the consequences that I have indicated.

Turning to the court modernisation programme, the chief justice said it was “absolutely critical” that the county courts were digitised:

To my mind it is unimaginable that we could contemplate, in the third decade of the 21st century, a court that does more than 90% of the civil work in this country relying on people filling out long forms, putting them in envelopes and sending them in. It is unthinkable.

The Ministry of Justice is in the process of putting forward its next bid for the money for the reform programme. It would be extremely unfortunate, putting it as mildly as I can, were there to be any difficulty raised by the Treasury over funding the modernisation programme properly. Those two things are a particular concern in the county court.

Asked how many cases were outstanding in the county courts, Burnett said that nobody knew. “Data capture, so far as the county court is concerned, is exceptionally poor.” He clearly found this immensely frustrating:

In what sort of justice system would someone not be able to interrogate a computer system and discover how many cases are outstanding in any particular court? The answer is one that has not had any money spent on it for decades and that has technology and data systems that are antiquated to the point of uselessness.

In a wide-ranging series of responses to MPs on the all-party select committee, Burnett complained that remarks of his in a judgment last month had been “much quoted completely out of context”. This appears to be a reference to an immigration case, in which he said:

Late claims raised shortly before the known date of removal have been endemic, many fanciful or entirely false. Whilst there is no suggestion of any such conduct in these proceedings, it is a matter of regret that a minority of lawyers have lent their professional weight and support to vexatious representations and abusive late legal challenges.

As the Labour MP Andy Slaughter pointed out, Burnett’s judgment had been relied on by the attorney general in the Commons a few days earlier. Suella Braverman told Slaughter:

Lawyers play a vital role in our justice system and in upholding our democratic society. However, I find the words of the lord chief justice very useful. He recently took the opportunity in the Court of Appeal to make the general point that

it is a matter of regret that a minority of lawyers have lent their professional weight and support to vexatious representations and abusive late legal challenges.

I find his words prescient and very relevant to this debate. As a friend and ally of the profession, I know the vast majority of our profession uphold the highest standards, but we cannot deny that there is a minority who do not.

In response to questions from the committee, Burnett spoke up, yet again, for the legal profession:

Lawyers have a duty to act fearlessly for their clients, subject always to their overriding professional obligations and duties to the courts. They should not be subject to criticism for doing so. A general attack on the legal profession, in my view, undermines the rule of law.

Asked what more he could do, Burnett said that this was not the first time he had spoken out. “Regrettably, from my perspective, what I say is often not picked up and reported.”

The chief justice also said that the senior judiciary were in favour of raising the retirement age for all judicial posts from 70 to 72. Burnett, 62, explained why:

Almost everybody is still firing on all cylinders between 70 and 72. Increasingly, some people go off the boil after that.

So now we know.