Bar Council and Law Society lack confidence in flexible courts

The flexible courts pilot will not command the trust or confidence of solicitors and barristers unless fundamental issues are resolved, including the reform’s impact on diversity in the legal professions and judiciary, senior lawyers have warned.

With the out-of-hours courts pilot continuing to vex lawyers, Bar Council chair Andrew Langdon QC says it is his duty “to ensure that a bad reform is exposed as such” and that plans to extend sitting hours, “caused by insufficient government funding”, should be “resisted”.

The Guildhall Chambers silk was responding to a recent letter from Lord Justice Fulford, the senior judge charged with modernising the courts service, which criticised “ill-informed” comments from lawyers who “misunderstand” the flexible courts pilot set for launch in six courts around the country.

However, in his letter to the senior judge, dated 3 August, Langdon says any “misunderstanding” was understandable “given that there was no consultation paper setting out the proposals in any detail”. He goes on to describe HM Courts and Tribunals Service’s plans as having been developed in “a somewhat piece-meal fashion”.

The Bar’s chair argues that barristers are “in a better position to explain what they think the impact of shift-sitting will be, than anyone employed by HMCTS”, adding that the department had been unable to answer “pertinent questions” or release the pilot’s evaluation criteria for scrutiny.

Moreover, the “unpredictability” of courts sitting in shifts will impact attempts to make the Bar and judiciary more diverse, writes Langdon. “You will see, I hope, why we fear the impact on diversity at the Bar given the consequences of those with caring responsibilities.

“Though there are of course many men who are carers, it is still, as a matter of fact, principally women who have the primary responsibility for caring for children and the elderly.”

He adds: “Unless the Bar has complete confidence that the evaluation of these pilots will measure our concerns, we will be very unhappy about engaging with the experiment.”

Elsewhere, the Law Society remains unpersuaded of any “strong and reliable evidence that flexible hours would mitigate the current problems with the court system”.

In a recent blog post, Law Society president Joe Egan says the closure of 86 courts across England and Wales has “placed a significant burden on the courts, personnel, and judiciary” and that proposals to extend opening hours were a “questionable alternative to maintaining an adequate court estate”.

Egan also takes aim at the government’s failure to formally consult both the Law Society and or the Bar Council on the pilot, or to involve either body in the work of its National Steering Group, and adds that it was is “hugely disappointing” that the findings from previous pilots have yet to be published.

The society’s president adds that unless fundamental issues in execution, resource, and methodology are resolved, “the pilot will be unsuccessful and any findings that come out of the evaluation will not command the trust or confidence of our members and their clients, the public, or court users”.

Although “a number of unanswered questions and concerns” surround the pilot, Egan says HMCTS has “responded positively to some of the issues” raised by Chancery Lane.

For example, officials have clarified that no lawyer will be required to attend both early morning and the late afternoon courts in one day. “If practitioners find themselves listed for both sessions, they will be able to request an alternative date or time,” he adds. “We await confirmation of this.”

John van der Luit-Drummond, deputy editor

john.vanderluit@solicitorsjournal.co.uk | @JvdLD