Senior judge attacks “ill-informed comments” about flexible court hours pilots

The Judge in Charge of Reform has expressed regret at “the extent of the widely-broadcast misunderstandings and ill-informed comments from a range of sources” on the Flexible Operating Hours Pilots.

In an open letter Lord Justice Fulford said he thought it would be helpful “to attempt to demystify” the proposed pilots.

He said: “It is vital that we improve the use of the courts and tribunals’ estate. We already struggle to maintain our buildings and it is hard to justify spending scarce funds on courts and tribunals that are not adequately utilised.

“We must use our assets to the greatest possible (but always sensible) extent, without asking anyone to work longer hours than at present.”

Lord Justice Fulford said one critical way to do this was to pilot different operating models, thereby enabling testing of the ability to increase the number of daily court sessions in particular court and tribunal buildings.

“But let me be clear from the outset, and forgive the early repetition: this is not a disguised attempt to persuade, or force, judges, court staff, legal professionals and others to spend more time at court than they do at present,” he insisted.

The judge said the splitting of court sessions would be tested in such a way as to enable a longer court day, populated by different people.

“By way of example, at Blackfriars we will run a Crown Court list in the morning and a magistrates list in the afternoon/early evening, and vice versa. In Manchester and Brentford, in the Civil and Family Court, we will test adding either an early or a late slot onto the current court day that conveniently enables us to deal with particular kinds of work which lend themselves to a shorter, more flexible slot.”

Lord Justice Fulford said none of the proposed six pilots involved tribunals work, because a tribunal pilot ran in Manchester earlier this year in the Immigration and Asylum jurisdiction, and its evaluation was awaited.

“Therefore, the pilots will enable us to establish whether we can use our court estate more effectively, utilising a more flexible approach to the way court and tribunal buildings are used, in a way that I believe reflects the expectations the general populace have of modern public services.”

The judge acknowledged that legal professionals had raised a number of concerns about flexible operating hours, and most particularly it had been suggested there would be an adverse impact on diversity in the legal professions and the judiciary.

Concerns had also been expressed about the practicalities as to how greater flexibility in operating hours will work in practice.

“We have listened to these concerns,” he insisted, but added that “the whole point of running the six comprehensive, detailed pilots is to test fully all the concerns that have been expressed. We approach this project with an entirely open mind as to whether increased flexible operating hours is a viable goal, and whether it should form part of the ongoing transformation of the justice system. If it works, it works; if it doesn’t, it doesn’t.”

Lord Justice Fulford said he was “absolutely clear” that a significant, detrimental impact on diversity in the professions or the judiciary was “not a price the judges were willing to pay for more flexible operating hours”.

He argued that these pilots would simply help the judiciary and the courts understand if this would be the case. “Those of us who have been involved with the justice system for a few decades will recall that there have been previous initiatives over the years in which we have tried flexible court sittings; these were launched to a fanfare but then faded away with unclear outcomes.

"Why should it be any different this time? We are operating in a radically altered world, in which digital and IT changes are transforming the opportunities for moving cases readily between judges, advocates and venues far more readily than in yesteryear, and there is a marked improvement in our preparedness to operate outside jurisdictional silos.”

The judge said a far wider range of options would be tried out than previously, with infinitely more sophisticated evaluation tools.

Lord Justice Fulford noted that an invitation to tender had been developed to secure experts in independent evaluation. “I am confident that the tender has identified the key areas of concern which need to be included in order to provide a proper test. By way of example, the evaluation will investigate the broad impact on court users of these proposals, so that the diverse positions of litigants, professionals and all the agencies who are involved with the courts are assessed. It will consider the consequences for their work and personal lives, including childcare and other like responsibilities. It will examine the time spent outside the courtroom by way of preparation and travel on the part of the lawyers and the judiciary. Put broadly, the evaluation will investigate sustainability, scalability and access to justice in all its ramifications.”

Local Implementation Teams (LITs) have been established to support the planning and delivery of flexible operating hours in the six pilot courts.

Lord Justice Fulford concluded the letter: “I repeat for one last time that these are pilots – no more, no less. If the ideas they explore do not pass muster, then they will fade into history at the end of the six-month period. However, if any of the models succeed, we will consider with HMCTS the circumstances in which we may repeat the relevant arrangements on a more regular basis.

“There is no plan for a national roll out of anything at present, but there may be some courts and tribunals in parts of the country where regular extended hours may properly assist in increasing access to justice and enabling us to use our buildings more effectively without a detrimental effect on those who work in our precious system.”