The star of a recent conference on the court modernisation programme from the Westminster Legal Policy Forum was Yvonne Gallagher, the National Audit Office’s (NAO) digital transformation officer. She was announced as going to say ‘from her point of view, it’s all about money’. The NAO has, indeed, hammered the programme and its sponsoring department on whether it can achieve its proposed financial and staff savings. But, Ms Gallagher had rather more than that to bring to the table.
The NAO has its finger on general digital developments in government. Its website notes that digital transformation ‘is probably the most influential force for organisational change today’. The page contains two figures in coloured blocks. One notes the ‘£14.3bn government operational expenditure on ICT in 2018-19’. The other, perhaps less expected, highlights the figure 78 per cent as ‘the government organisations responding to our digital skill survey who said external conditions made it hard to recruit, retain and develop staff’. The NAO is willing to highlight wider issues than just value for money. And the NAO has not been hesitant in underlining the importance of value for data. For example, it summarises a recent report on the challenges in using data across government: ‘Without accurate, timely and proportionate data, government will not be able get the best use out of public money or take the next step towards more sophisticated approaches to using data that can reap real rewards … unless government uses the data strategy to push a sea change in strategy and leadership, it will not get the right processes, systems and conditions in place to succeed, and this strategy will be yet another missed opportunity.’
Ms Galllager was preceded by Kevin Sadler, acting chief executive of Her Majesty’s Courts and Tribunals Service. He has taken over from Susan Acland-Hood. She has become permanent secretary at the Department of Education. Her competence will be severely tested by a difficult brief and a lightweight minister. But Mr Sadler has inherited her boundless sunny optimism. No change there.
Let’s spell out what the problems facing the programme as seen by an outsider with an access to justice orientation. Some of the most publicised difficulties are operational and relate to the technical replacement of manual by digital systems. These frankly are often no more than you could reasonable foresee (and, if you had an ounce of sense, admit). The modernisation programme is wide, complex and an aggregation of a number of essentially different components. Other issues arise from the running down and disposal of physical courts before implementing digital alternatives. This was outrageous but presumably a Ministerial decision – from which HMCTS would be wise discretely to distance itself. Some elements of the programme have actually proved their worth, particularly with unexpected impact of Covid 19. It is easier for professional users.The key weakness, however, remains articulating how digitalisation will benefit individual unrepresented litigants in person before courts and tribunals. This has been asserted but not proved – and not even the subject of discussion about how it might be proven.
Let us go back to an earlier NAO evaluation of HMCTS’s commitment to evaluate its reforms: ‘Overall evaluation of reform will be conducted by the Ministry of Justice, so HMCTS did not develop plans to evaluate the overall success of reform from the start and there was no dedicated funding or strategy to guide its approach. In early 2019, HMCTS proposed creating an evaluation plan supported by better monitoring of outcomes for different groups. It also proposed developing clearer definitions of its core objectives (‘proportionate’, ‘openness’ and ‘access to justice’) and is developing its performance measurement framework. The Ministry of Justice told us [that] It expects to produce an interim report in 2021-22, with a final evaluation report in 2024-25. The extent to which learning from this evaluation will be able to influence the implementation of the reform portfolio is unclear.’
Myself, I like a bit of British understatement. But let’s spell out en clair what the NAO was saying. ‘Goal setting after the event is crass’.
Bringing this background to Ms Gallagher’s contribution, you can ponder its distinctively British resonance. No acting chief executive is going to be easy hearing that his major programme shows ‘lots of ambition’, let alone an NAO expert explicitly asking, as Ms Gallagher did, if such ambition is ‘realistic’. Still less welcome will be warnings like ‘complexity is often underestimated’. Emerging from the shadows of the oblique, she said that the programme was ‘a daunting challenge with significant risk of being undeliverable in the time available’. To succeed, you need a clear understanding of what you are trying to do: clarity of vision, strategy, objectives, leadership and understanding of the operational environment. You need the infrastructure to make it work and the conditions to make it work – in particular ‘a culture of honesty and transparency in governance’. It was pretty clear she thought these were lacking. Were I Mr Sadler, I would figure on a good kicking from the next NAO report.
Part of the NAO presentation related to the problem of data and how difficult it is to link data from a new system to that from an old one. A key part of transformation is clearly dealing with, and incorporating as necessary, legacy systems. Ms Gallagher seemed rather sympathetic to the difficulties of reporting on the results of change. However, what needs to be addressed is the point in the NAO’s earlier report.
Part of these reforms were supposed to benefit individuals in contact with the courts. There are all sorts of subtleties about how we measure that. But there are some whopping big policy issues that you need to sort out before you embark on this element of the reforms. Do you, for example, want to encourage more individuals to use the courts and tribunals or do you want to encourage more people to consider using them but then be content to resolve their problems elsewhere? Are we opening up access to courts and tribunals or closing it down? Or, really, are we just expecting it to stay the same because we are not worried about any barriers that people might have faced in the legacy system, we just want to save money and staff. You really have to be clear about your choice before you start. Most jurisdictions in the US at least say that they are looking to expand accessibility. Are we trying to go the other way?
The court service will, no doubt, dodge too much accountability for cost overruns on court modernisation because of Covid. Meanwhile, every practitioner knows that the court management of the criminal justice process is currently in chaos, probably in part because the HMCTS started running down the availability of hearings in order to reduce costs before Covid hit. And the benefits for someone wishing to challenge a builder; make a consumer claim; seek to get repairs done to their house; challenge an outrageous social security or immigration decision seem, at best, unclear.
It is not too late for Mr Sadler to lead the HMCTS to high ground before the NAO opens the gates with its next report. Just admit that it is complicated and not all sunny uplands: there are problems. And, at the last hour, articulate with clarity what tangible benefits you are actually seeking for individual litigants and tribunal appellants. Will they get help in solving their problems as in the Civil Resolution Tribunal of British Columbia? Will libraries be pressed into service to help unrepresented litigants in virtual hearings as in the US? How will you address digital poverty and exclusion? The Ministry will, no doubt, save money and staff – though persistent NAO suspicion that these will be lower than promised seems likely to be justified. And lawyer interaction with the courts will be easier. But this reform programme was articulated as increasing individuals’ access to justice. It is not too late. Just tell us how. And show us how you prove it.