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Consultation then evaluation - Law Society calls for clarity over Flexible Operating Hours

25 October 2017

Senior HM Courts & Tribunals Service (HMCTS) and Legal Aid Agency officials will need to consider stakeholder views carefully before proceeding to pilot extended operating hours in February 2018.

Yesterday afternoon, HMCTS published their latest blog post on flexible operating hours, and prospectus with 19 questions to stakeholders. It sets out the background thinking to the pilot, HMCTS design principles, and four objectives which focus on citizens' access to justice; impact on court users; efficiency and scalability; and future deployment of new operating models.

We welcome the decision to publish a prospectus and gather stakeholder views. The document provides a much clearer explanation of the reasons for the pilot and HMCTS intentions that was available publicly before.

However, some of the questions raise more concerns than solutions. This would seem the ideal opportunity to request views on a draft evaluation framework and methodology ahead of its publication.

The prospectus requests responses from stakeholders (predominantly members of the legal profession) by 1 December. Outcomes will be published in the new year, ahead of the pilot. The prospectus is, to all intents and purposes, a consultation. While this provides a useful opportunity for our members to provide input into the design of the pilots, the 19 questions do not ask for views on what data should be captured in order to refine any tender document or improve the evaluation process. We hope that there will be an opportunity for stakeholders to provide feedback before the updated evaluation framework and methodology is published (announced by the Lord Chancellor on 25 October, Justice Committee: The work of the Ministry of Justice).

The previous evaluation tender was unsuccessful. HMCTS announced in September it was postponing the pilots until February 2018 to 'get the evaluation and other changes right'. However, the prospectus has also proposed another four models, potentially compromising the original purpose for pausing the pilots, which was to resolve the unresolved issues within the existing models. The new models include combining virtual hearings with a crown court model, and introducing immigration tribunal sittings as part of a mixed jurisdiction model.

A number of key issues have been raised by the Law Society at national and local level, issues which are either not addressed, or only partially addressed by the prospectus:

  • The increased pressure on legal aid practitioners. Previous assurances that the London pilots will only deal with trials appear to have changed, as timetables include bail applications which will have an impact on duty rotas. Nor are there any details of costing or uplift in rates to reflect any antisocial working hours.
  • Safeguards to prevent longer working hours. While the prospectus repeats the intention that no lawyer should have to work longer hours than at present, there are no practical measures identified in the document to show how this will be avoided, or to explain how they notify the court if their cases are listed during the early morning and late evening sessions on the same day.
  • Interactive scheduling of cases. Without some means of determining the times when court users would prefer to have their cases scheduled, not only does the pilot fail to be ‘user-centric’ by design, courts may find themselves at risk of breaching anti-discrimination legislation.

The pause in the pilot gave an opportunity for these issues to be resolved and for our members to be reassured about how flexible operating hours will impact on them. It would be deeply disappointing if the pilot were to commence in February with these issues still unaddressed.

We will be responding robustly to the questions posed in the prospectus and would encourage members to provide their views, particularly on how any proposed models would impact on their personal circumstances as well as on their firm. Please feel free to provide your views or case studies to

Please do provide detailed examples if possible. If we do include your case study, we will only use it in an anonomyised form and will not identify the participants or the source of the information.

HMCTS wants to hear from you

As part of their wider work to engage all those who use and work within the justice system, HMCTS is holding a series of roadshows aimed at the legal profession.

The HMCTS roadshows are taking place as follows:

There will be a general introduction to reform followed by a roundtable discussion – so this goes wider than just flexible operating hours. Further roadshows will be announced in 2018.

Registration is now open. Book your place now