THE BUSINESS CONTINUITY PLAN OF THE LAW

COURTS DURING THE HEALTH CRISIS RELATED TO

THE COVID-19 EPIDEMIC

Communication to the Assembly’s Committee on finance, the général

economy and budgetary Audit

Abstract

The health crisis related to the Covid-19 epidemic and the decisions taken to deal with it

have had unprecedented effects on the functioning of the State and society. National lockdown

measures have greatly disrupted the functioning of public services, which tried to continue to

operate while many of their employees were confined to their home. The Ministry of Justice’s

action to ensure the business continuity of the courts, which is the subject of this report, falls

within this context: a large number of the choices it made have naturally fallen within the

framework of the national response to the crisis.

This enquiry has examined in detail the conditions under which the Ministry of Justice

responded to the health crisis, taking into account the limited room for manoeuvre available to

it. First of all, it emerges that the ministry was poorly prepared: its crisis management plans,

currently in developpement, did not anticipate a crisis of such magnitude. This resulted in an

interruption in the functioning of the courts during the first lockdown, with the exception of

urgent litigation, an unprecedented situation in the history of justice. Business recovery was

difficult, marked by a slowdown in activity, unequal depending on the location and categories

of litigation, and an increase in case inventories. Lastly, while the health crisis was an indication

of the ministry’s long

-standing management weaknesses, it was also a source of useful

lessons that could accelerate the transformation of the ministry and improve its management.

The ministry was not prepared for a crisis of such magnitude

The crisis preparation within the Ministry of Justice was embryonic before the health

crisis, even though justice is, under the Defence Code, a “ sector of vital importance”, the

activity of which must be maintained in times of crisis. On the eve of the crisis, the ministry had

allocated additional resources to its “ministerial defence and security policy”, but these were

insufficient and the content of its crisis response was not finalized when the pandemic

triggered. Under these conditions, at the beginning of the health crisis, the preparation for a

possible crisis

was limited, very little shared in the courts’ network, with the exception of some

of them, which, in particular, had experience of local crises attached to specific risks, or in

Paris where a

flood of the century of the Seine was anticipated.

The courts were therefore forced to draw up business continuity plans (BCPs) in a hurry,

even though they had not mastered this tool. In order to support the courts in their response

to the health crisis, the Directorate of Judicial Services sent on 2 March 2020 a standard BCP

which defined a business framework for the courts, including a very limited list of essential

tasks that should be maintained. Both this list, which omitted the commercial courts, and the

terms and conditions for carrying out the tasks to be pursued were defined restrictively. This

framework only partially addressed the operational challenges of business continuity during

the crisis. In fact, the courts’ BCPs were characterized by a diversity of proc

edures and content

of activity.

The unprecedented nature of the crisis made it necessary to rapidly adopt, in the March

2020 orders, measures derogating from ordinary law. These numerous and hastily devised

normative provisions have facilitated the functioning of the courts. However, some of them,

such as the automatic extension of pre-trial detention, have caused legal uncertainty and

challenges. If they are better defined and anticipated, they could be a useful crisis management

tool for the ministry in the future.

However, the adaptation of the cour

ts’ activities to these exceptional circumstances had

to take into account the fact that, before the health crisis, neither the courts nor the ministry

had maintained the stock of protective equipment in operational condition. The centralisation

of the supply of masks to the courts by the General Secretariat posed a logistical challenge. In

the absence of sufficient equipment and a stabilised governmental doctrine on the need to

wear masks, the ministry decided, on the recommendations of the High Council for Public

Health (HCSP), to give priority to the prison administration and the judicial protection of young

people. Given the supply difficulties encountered in France, the first masks could only be

delivered to the courts in April.

On 15 March 2020, the Minister announced the closure of the courts in a message

distributed to all courts. This was the most striking decision in the management of the crisis by

the ministry, which in fact denied the status of a vitally important sector attached to the public

service of justice, whereas the purpose of a business continuity plan is to guarantee, in the

event of a serious crisis, operation as close as possible to normal conditions. The central

administration was heavily involved in human resources issues and the priority issue of

protecting the health of staff, and had only limited means at its disposal to support a network

of courts in great difficulty and to guide their responses to the crisis.

The issue of the possible extension of activity of certain courts when local health security

conditions would have allowed it, turned out to be delicate to manage for the ministry because

of the divergent positions of the heads of court on this subject. In view of these differences, it

was considered that the conditions for extending the activity were not met. However, the

Court’s analysis of the courts’ activities shows different territorial approaches, with some courts

having succeeded in extending the prescribed scope of activity. All in all, after a virtual

suspension of their activities for more than two months, the courts gradually resumed their

activities, which returned to their normal level in September 2020.

The functioning of the courts has deteriorated, but in an uneven manner

The courts have encountered several obstacles that hampered the continuity of their

business. The decision to implement BCPs was primarily driven by health conditions and the

Government’s desire to protect citizens from the virus by limiting interactions. Every employer

was assigned this objective and the Ministry of Justice was no exception. The direct effect of

the lockdown decisions was to send the vast majority of staff home.

As a result, during the first lockdown, the courts were only able to rely on voluntary staff.

However, these were specialised in specific types of litigation or activity. It was not possible to

overcome the lack of versatility among both judges and court registry staff. In order to avoid

this pitfall, it is essential that versatility, which the ministry has long sought to develop, becomes

a normal part of the organisation of work within the courts.

During the first lockdown, it was not possible to remedy the shortcomings of digital tools,

particularly for the processing of civil cases, and to increase the possibilities for remote work

by registry officers. However, some of the achievements of the ministry’s digital transformation

plan have prevented the institution from being paralysed: the capacity of the VPN network has

been increased and videoconferences with the prison administration have been organised.

Ambitious and promising, the digital criminal procedure, which has been tested since 2019 in

the law courts of Blois and Amiens and whose deployment has been underway since

September 2020, turns out to benefit a lot to business continuity. The digital maturity of the

administrative courts and commercial courts is much more advanced and has made it possible

to ensure better continuity of their activity and greater accessibility for citizens.

The way courts operated was very different between the first and second lockdown

periods. The first led, almost automatically, to a sharp drop in new cases, as well as a

significant reduction in recorded crimes. But this situation has had the effect of increasing the

activity of certain departments, including those responsible for detention and enforcement of

sentences.

Taking all litigation together, the drop in activity of the courts and courts of appeal for the

month of April 2020 alone is between 70% and 80%. Almost all industrial tribunals ceased

their activity on 16 March 2020 and some of them only resumed processing summary

proceedings at the end of April. In criminal matters, the correctional courts have

reduced

during the lockdown period their trial capacity by 82% compared to 2019, and the juvenile

courts by 97%. However, these national figures conceal regional disparities. For example, the

law courts of Besançon and Carpentras were able to maintain an above-average capacity to

try civil cases despite the lockdown.

Moreover, low-visibility civil and criminal court activity was also deployed thanks to the

work carried out remotely by judges (drafting of judgments, rulings, final indictments or

settlement orders). For the Paris public prosecutor’s office, the lockdown period

allowed to

clear 80% of the stock of judicial information files. Finally, the upturn in activity (particularly in

completed cases) observed in the law courts and courts of appeal in May, June and July was

encouraged by the use of the no-hearing procedure, which was voluntarily implemented by

many courts such as the courts of appeal of Paris, Toulouse, Reims and the Paris law court.

Thanks to a greater digital culture, some courts were able to maintain a certain level of

activity during the lockdown. For example, thanks to their registries, the commercial courts

were able to use a videoconferencing solution to hold remote hearings, particularly for

insolvency proceedings. Nationally, 760 hearings were held by videoconference between the

2nd of April and the15th of May, including 350 for the Paris commercial court alone. Similarly,

the activity data for the Paris administrative court shows a 47% drop in incoming cases during

the lockdown period, which is much less than that of the civil courts.

With a ministerial instruction to continue activity and the adoption of normative measures

comparable to those of March 2020, the second lockdown had virtually no effect on the level

of activity of the courts. The functionning of the ministry in times of crisis has improved, as

more flexible lockdown arrangements have made it possible to organise the presence of staff

in their place of work.

The health crisis has had consequences onthe quality ofthe jurisdictional activity. People

had difficulty accessing justice; the criminal response was less intense, due to redirections and

an increase in the time taken to bring cases to trial. The closure of the courts may have led to

an inadequate handling of sensitive groups, whether vulnerable persons or those subject to

special monitoring, despite the notable efforts made to give priority to situations aggravated by

the crisis, particularly domestic violence.

The judiciary can learn useful lessons from the crisis and accelerate its

transformation

The crisis has revealed the ministry’s lo

ng-standing management weaknesses, such as

the dispersion of the court network, which complicates its management, the insufficient

progress of its digital transformation, and the limited versatility of its staff. The lessons learned

from the health crisis will be better taken into account by the ministry if they are based on

exhaustive and detailed feedback.

The health crisis led the ministry to test its crisis management system. The management

of the second phase of the health crisis in autumn

2020 confirms that the ministry can improve

its level of preparation for the various risks that could interrupt the activity of the courts. In

accordance with the provisions of the defence code, the role of the senior defence and security

official (HFDS) in crisis management must be strengthened vis-à-vis other directorates of the

ministry and operational preparation for crises must be better shared within the judiciary

system. The diversity of the functioning of the courts during the first lockdown shows the

responsiveness of many heads of court and their departments at local level, while raising

questions about the principle of equal access to justice as set out in the code of judicial

organisation.

In the crisis management, the central administration probably lacked a prior doctrine

based on an in-depth analysis of the priority needs of users of the public justice service in order

to define the scope of the courts’ business continuity. In light of the health crisis, the ministry

is in a position to carry out this analysis, in order to better define the essential function of justice

in times of crisis.

The health crisis was not an opportunity for the judiciary to appropriate the BCP tool.

The crisis illustrated the relevance of the objectives set out in the ministry’s digital

transformation plan, namely the need to have robust systems for a more efficient, more

readable and more accessible justice system. It has also shown that facilitating digital access

to justice for the public, one of the major thrusts of the plan, was not sufficient to achieve these

objectives. The resources made available to judges and court registrars must also provide the

guarantees of permanence, security and access that enable the public service to function in

all circumstances.

The health crisis, combined with the lawyers’ strike at the beginning of 2020, has

increased the volume of their case inventories, exacerbating some of the difficulties

encountered by the courts in absorbing their activity. Under these conditions, it is important for

the directorate of judicial services to have a qualitative view of the courts’ case inventories, in

order to allocate resources where they are most needed. Lastly, the health crisis has brought

back the issue of assessing magistrates’ workloads, which is a necessary condition for

allocating resources fairly between courts. Although real progress has been made, the case

assessment and weighting process must be given fresh impetus in the context of the crisis.

By increasing access to remote working tools, the health crisis has accelerated the digital

use from magistrates and court registrars, which was lacking during the initial lockdown. While

at the beginning of the crisis, almost no registry officer had an ultraportable computer, the

Ministry reported a 50% equipment rate at the beginning of January 2021. The health crisis

will have contributed to a better organisation of the work of court registrars by opening up to

them the benefit of remote work, which until now has been reserved for magistrates.

In the courts, the health crisis has also been a period of innovation in the organisation

and operation of judicial activity. This progress must be identified through an inventory and

circulation of the good practices that the ministry has begun to implement.

Beyond these various aspects, the main lesson to be learned from the health crisis of

the functioning of justice is that an interruption of judicial activity is no longer conceivable. As

part of the necessary feedback from the health crisis, the ministry must be able to develop a

stable doctrine, informed by experience, on the business continuity expected of the judiciary

system and to make the texts and its material and human resources consistent with this

requirement. The basis of this doctrine should be the vital importance that the law assigns to

the activity of the public service of justice, and that the health crisis has confirmed beyond the

vicissitudes of the response provided by the Ministry of Justice.