HMCTS delays launch of flexible operating hours pilots to February 2018

HM Courts & Tribunals Service (HMCTS) has put back the launch of the Flexible Operating Hours pilots until February next year.

The decision to reschedule was taken after the Service decided to launch a second tender exercise for an external team who would undertake the evaluation of the scheme. HMCTS said it expected to have an evaluation partner in place by December.

The organisation had planned to start six pilots across the Crown, Magistrates, Civil and Family jurisdictions over the next six weeks.

In a letter to explain the delay, Deputy Chief Executive Kevin Sadler said: “HMCTS is strongly committed to running fair and proper pilots to test flexible operating hours in our courts and tribunals and to ensuring that they are independently and transparently evaluated. It is crucial that this process provides a robust evidence base to inform future decisions about whether or not flexible operating hours provide a sustainable and scalable way of working in courts and tribunals, and understanding the range of impacts on legal professionals and the various users of the justice system, such as victims, witnesses, jurors, defendants, and litigants.

“At the end of July, we published an Invitation to Tender to secure an external team who would undertake the evaluation. We shared the tender document in advance of publication with a number of legal professional associations to ensure it covered the concerns about the pilots, and their potential impacts, as fully as possible. The tender exercise completed in late August and, unfortunately, the evaluation panel was not satisfied that there was a response to the tender which demonstrated the sufficient level of rigour to match the commitments we have given.”

Sadler said the decision had not been taken lightly, “but was made to honour the commitments we have given that the evaluation will be rigorous, open and transparent and will look to address the concerns of legal professionals about the proposals for flexible operating hours”.

He added that in the coming weeks the HMCTS said it would provide a detailed prospectus for each pilot site, setting out the proposed sitting model and the case types involved in each session.

Andrew Langdon QC, Chair of the Bar, said: “Whilst plans for flexible courts have not been dropped, it is encouraging to see HMCTS not only take on board the Bar Council’s concerns about the plans, which include the impact they will have on barristers with child and other care responsibilities, but they also commit to ensuring robust evaluation measures are in place before proceeding with the pilot.

“Past experience shows that rushing into decisions can backfire on the government, employment tribunal fees and the impact of LASPO on vulnerable people being just two examples. We will continue to talk with HMCTS, who are in listening mode, on this issue.”

Law Society Vice President Christina Blacklaws also welcomed "this pragmatic decision", and urged HMCTS to use the time instead to work with Chancery Lane to address its members' other concerns about the pilot.

She said: “Fundamental issues in execution, resource and methodology must be fully resolved or the pilot will be unsuccessful. It is not acceptable to operate a pilot without paying solicitors properly for the additional cost they will incur as a result. There are also practical dangers for court staff, prosecutors, defence lawyers, defendants and witnesses, who could be leaving the court building five nights a week after 20:30.”

“HMCTS' unwillingness to proceed with an evaluation tender outcome that appeared unsatisfactory gives welcome reassurance to our members they can have faith that the eventual evaluation will be robust.”

The pilots have proved controversial, amid concerns at their potential impact on retention of women at the Bar.

In August Lord Justice Fulford, the judge in charge of reform, had sought to demystify the pilots and expressed regret at “the extent of the widely broadcast misunderstanding and ill-informed comments from a range of sources”.

This prompted Langdon to warn that barristers would be “very unhappy” about engaging with the pilots if their concerns about the evaluation were not addressed.