Published:  13th April 2021

Two weeks ago the Lords Constitution Committee published the first of three reports following its inquiry into the constitutional implications of COVID-19. This first report covers the impact of COVID-19 on the courts and cites written evidence submitted by Public Law Project, including taking up its recommendation for HMCTS to collect data on remote hearings and their corresponding case outcomes.

Whilst supportive of the ‘monumental effort’ made by all working in the courts and tribunals system, the report lays bare the significant strain that reduced government funding, court closures and fewer HMCTS staff had had on courts and tribunals over the past decade. They situate the issues experienced during COVID-19, in particular the significant court backlogs, squarely within this longer-term context.

A significant portion of the report focuses on assessing the shift towards remote justice in response to the pandemic, concluding that the ‘impact of virtual hearings across the justice system remains fundamentally unclear’. The report suggests that this is a result of insufficient data collection and slow implementation of the digital justice data strategy recommendations outlined by Dr Natalie Byrom in 2019 and accepted by HMCTS in 2020. Public Law Project drew on recent research into Judicial Review during COVID-19 and Online Immigration Appeals to highlight key challenges in respect of these serious data deficiencies, in particular the impact of remote hearings on non-professional court user participation and the lack of data collection of the protected characteristics of court users and remote hearing case outcomes. These concerns were cited in the final report and supported calls from other written evidence given by the Transparency Project (CIC0019), Professor Gráinne McKeever (CIC0009), Dr Kate Leader (CIC0011) and others.

The report represents a comprehensive summary of the key challenges facing courts during COVID-19 and makes robust recommendations to address these. Crucially, it highlights the need to learn the lessons from this extraordinary period, but not to consider emergency operational changes as ‘irreversible’ or as ‘an excuse to initiate permanent changes without prior consultation and suitable evaluation of their effects’. Public Law Project’s Public Law and Technology team will continue to analyse developments in online courts and the impact of the pandemic on their longer term use.