Richard Susskind has written a new book. It is entitled Online Courts and the Future of Justice, published by OUP. If you are interested in the judicial system, you have to read it. This will not be difficult. Professor Susskind’s prose comes at you with the force of an express train or breakers smashing on the rocks. Objections to the thesis that online courts are overwhelmingly good are lined up and each dispatched in three or four pithy pages. He is nothing if not ambitious. His last words are ‘For human beings who care about peace and overcoming the suffering of others, this [ODR] platform could well be our legacy’.
Professor Susskind has never had much time for those who wish to reply ‘Yes, but’ to his persuasive arguments. And that is something which perhaps he could take up in later publications – of which there are bound to be many at his current rate of production. Understandably, here, he spends most of his time on the reforms in England and Wales to which he has been an adviser. But he also discusses developments elsewhere – in, for example, Singapore, British Columbia and the United States. As the instances of state-sponsored ODR grow, you would expect that we could begin to ask a second order of question. Are all examples of ODR equal? Are some better than others? And why?
The issue can be illustrated by comparison of the Civil Resolution Tribunal in British Columbia and the domestic ODR programme. We are told that ‘For the year 2019/20, it is expected there will be thirty-nine tribunal members with a caseload of 10,000. The projections for the following year suggest a tripling of that caseload with only a doubling of staff’. That is to say that BC will have 78 tribunal members or other staff that did not previously exist. The programme is seen as a success and has been granted extra resources.
By contrast, Her Majesty’s Courts and Tribunals Service has the National Audit Office breathing down its neck determined that the modernisation programme should make massive savings in both cost and personnel. In addition, Professor Susskind talks of the difficulty of changing a wheel on a car while it is moving. Well that is quite an apt metaphor for the court closure programme which at the last NAO count had led to 127 going before full implementation of the modernisation programme with another 12 to come. The alleged savings are revealed as increasingly speculative as time goes on but the NAO wants £244m a year.
There are other difficulties. Emily Dugan is a journalist who works for Buzzfeed and has increasingly become a pain in the side of the Ministry of Justice and the HMCTS. She seems to get access to redacted documents in their original form. She accuses the Ministry of Justice of not playing fair in publication of research and of minimising consumer resistance to online hearings: ‘The Ministry of Justice left data out of a published report that showed people had a more positive experience of the justice system if they had physically been in court, a finding which senior lawyers and campaigners say undermines its push to take more cases online and out of courtrooms.’
Take another difficult issue for online justice – digital exclusion. Richard Susskind says it is no problem. Throw in use of proxies and he puts it at 6 per cent of the population. However, this is what the Office of National Statistics said earlier this year: ‘The number of adults who have either never used the internet or have not used it in the last three months, described as “internet non-users”, has been declining over recent years. Since 2011, this number has almost halved, but in 2018 there were still 5.3 million adults in the UK, or 10.0% of the adult UK population, in this situation.’ Yes. You can can argue that this will diminish with time and yes. Some will be able to use proxies but you can’t really be too cavalier about this phenomenon without a bit more evidence.
All of these points do not, for me, detract from agreeing with Professor Susskind that in his basic judgement that online courts are both desirable and unavoidable. And I agree with Professor Susskind that the foreseeable result in terms of the legal profession is the decline of the Bar, fostered as it is on the tradition of oral advocacy. And that this is no reason to hold up progress. But, surely, we have now got to the point where we need to grapple with the difficult questions. Perhaps the projected savings need to be revisited. Perhaps more has to go into assisted digital or, even, better advice agencies like the Citizens Advice service. We need more research and more honesty about the downsides of modernisation so that they can be addressed – not so that they can stop the movement of the inexorable tank.