A major issue for jurisdictions, like England and Wales, which are intending to implement Online Dispute Resolution within the official court and tribunal service is the extent to which a percentage of the population will be excluded from using them. This has obvious implications. If a significant group cannot be assumed to have the necessary skills and access then either mandatory digital systems will lead to their exclusion or existing paper-based systems with appropriate accessible physical access will have to be maintained for those unable to access the bright new world.

This issue is referred to in the recent paper from the Ministry of Justice in England and Wales entitled Transforming our Justice System. Quoting the Government’s Digital Strategy as its source, its consultation paper gives the following appreciation of the problem:

There is a range of ability and comfort in using technology across the UK. It is estimated6 that of the UK population who use government digital services:

* 30% are “digital self-servers” – these are people who have the skills, access and motivation to use digital services unaided.

* 52% can be “digital with assistance” – these are people who are able and can choose to engage digitally, but may need some help to do so. Over time, they should gain the confidence to become part of the “self-server” group.

* 18% are “digitally excluded” – these people cannot or choose not to engage digitally at all, due to difficulty in accessing IT facilities, lack of basic digital skills or confidence, or low motivation. These people will continue to need a lot of support, but the size of the group is shrinking with time as digital services become more common.

These figures are striking enough. The government is accepting that one fifth of the population ‘cannot or choose not to engage digitally at all’. The majority of the population ‘need some help’ and only just under a third are likely to fully capable.

But let’s look a bit more at the digitally excluded. Who are this 18 per cent? And is the figure reliable? Well, let’s keep to official sources. The House of Commons Science and Technology Committee produced a paper on the Digital Skills Crisis in June. The committee is non-partisan and, in fact, is chaired by a Conservative MP. This quoted rather worse figures on digital exclusion than the Ministry of Justice, even though it was relying on earlier figures (from 2013 rather than 2015):

digital exclusion remains stubbornly high with an estimated 23% (12.6 million) of the UK population lacking basic digital skills.18 Of these, 49% are disabled, 63% are over 75 and 60% have no formal education qualifications. A higher percentage of men have digital skills (80%) than women (74%).

These figures come from a pretty respectable source: a report on Digital Skills produced by Ipsos Mori for Go On UK in association with Lloyds Banking Group. It distinguished the following as ‘basic digital skills’ – managing information, communicating, transacting, creating and problem solving. The report also tracked ‘basic online skills’ which was an earlier classification than has effectively been superseded but kept for comparative purposes: basically, the new term adds ‘problem solving’. These are Its key findings:

• 77% of the UK adult population have Basic Digital Skills with 81% having  Basic Online Skills.
• This leaves 23%, or an estimated 12.6 million adults in the UK who don’t have the required level of Basic Digital Skills.
• Nearly nine in ten of all adults are capable of ‘managing information’ and ‘communicating’ online.
• However there is variation across differing demographic and social groupings:
• The digital skills level starts to decline amongst the 45+ demographics culminating in the 65+ groups having a Basic Digital Skills level of 43%. This group have the lowest digital device ownership, the bulk of this age group are retired, suggesting they lack the opportunity/ desire to acquire the skills.
• The Basic Digital Skills level amongst ABC1s is higher than the national average at 87%, but is significantly lower amongst the C2DE social grades (65%).
• Greater London (84%), Scotland (81%), the South East and South West (both 81%) register the highest Basic Digital Skills levels, but Wales – where internet access is lowest – displays the lowest levels (62%).

Performance by those in the bottom level of society is actually worse than this summary suggests. For those in social categories DE the level of basic digital skills falls to 57 per cent. These categories cover ‘Semi-skilled & unskilled manual occupations, Unemployed and lowest grade occupations’ – C2 is for ‘skilled manual occupations’. Another relevant finding is that ‘Males are significantly more likely than females to be competent in each digital skill.’ The report found that 80 per cent of men had basic digital skills as against only 74 per cent of women.  The real problem groups were the retired where only 47 per cent have basic digital skills. A note of hope for the future is struck by the fact that 93 per cent of those in school or who are students have the necessary skills. Unsurprisingly, possession of the required skills rises with income from a low of 69 per cent of those with an income of less than £9,500 a year to 96 per cent of those earning more than £75,000. There are geographical hotspots: Northern Ireland, the West Midlands and Wales are significantly worse than elsewhere in the country.

The advantage of the approach accepted by the House of Commons Select Committee is that it emphasises the need for skills rather than extrapolating a capacity to use the internet from access to it. The figures also carry the implication that any move to online dispute determination – mandatory use of online procedures – would, at this moment, be premature. 13 million adults – disproportionately poor, elderly, female and on low incomes – have insufficient digital skills. Indeed, it looks as if only 57 per cent of those who might formerly have been entitled to legal aid (assuming rough equivalence between membership of social groups D and E with legal aid eligibility) on income grounds have the necessary basic digital skills to cope with an online small claims court. Thus, there is plenty of evidence to justify piloting an online small claims court but none to suggest that it is safe to remove or inhibit physical access to courts with traditional written procedures in the absence of an explicit policy to exclude the poor from the court process.