Lord Justice Briggs makes a strong case for what he now wishes to call an Online Solutions Court. But there are at least four issues that require further consideration before implementation in England and Wales. These also have a wider resonance in the wider field of global discussion of Online Dispute Resolution within the courts: integration, compulsion, costs and the fundamental policy objective.
The issue of integration relates to how new online court processes interact with existing sources of advice. Here, Lord Justice Briggs loses a little of the sureness of touch which characterises much of the rest of his report. Realising that his proposed opening stage 1 (in which users would identify legal problems and start to encounter triaging in how they are dealt with) needs amplification, he starts positing new stages 0 and 0.5. He also uses the phrase ‘public legal education’ to cover somewhat uneasily what would normally be seen as the provision of information and advice by such bodies as individual advice agencies and the Citizens Advice Bureaux. Unravelling this will be crucial to the opening phase of commencing an action. Are the courts offering themselves up as dealing with individuals who have had no other assistance from any other body or do they imagine that someone will come to them primed by an advice agency? This confronts the issue of the demise of legal advice and assistance. People used to be able to get a modicum of assistance with ‘any matter of English law’ from a solicitor, originally for two hours. They now cannot.
Lord Justice Briggs realises that there will be a job here for the advice agencies. There may be pro bono assistance; there may be law students; but there will need, as he recognises, to be court-funded individual help for litigants in person. He extols the Californian court self-help provision which he took some trouble to find out about. The Ministry of Justice has to understand that that this will cost them money. Some users will come direct to the court – often because the front line agencies will fail. Lord Justice Briggs does acknowledge that the major challenge of his first stage is the ‘knowledge management’ required to such users enter the system. It is worth spelling out in a bit more detail what that means. It will require not only the duplication of much of the provision by advice agencies in helping people to identify problems (a good reason for funding them directly); it will mean the sort of attention to detail and knowledge pathways that characterise the Dutch Rechtwijzer and are shown in its progeny; it will mean adapting forms to make them user-friendly along the lines of the a2j provision developed in the States; and potentially such innovations as cash cards that allow payment by users who do not have debit or credit cards. The implementation team at the Courts Service should humble itself sufficiently to accept a lead from the advice agencies on what needs to – and can – be done.
The second issue is compulsion. Lord Justice Briggs wants the online provision to be compulsory after the shortest possible time. He says that this is necessary in part because users will find it increasingly hard to find a nearby court as so many are being shut. That may be plausible but it is not acceptable. The Ministry needs to keep open courts to allow reasonable physical access until we can be sure that users have actually got the skills to use the new system. This is new territory. We do not know how many people can be expected, even with assistance, to use digital only provision. In practical terms, there should be a minimum dual running period of five to ten years. I argue that among those below a reasonable definition of poverty only half will have the requisite skills. All the practitioners say that this is wildly optimistic. We do not know. We should not gamble with what is fundamentally a constitutional right of access to justice.
The third issue is cost. The main reason to support an online court is that it will reduce court costs so that ordinary people will still use the provision. The level to which court costs have risen is, in the context of austerity, perhaps understandable: that does not make it acceptable. To the extent that some costs are now designed to make a ‘profit’ is a scandal and the extent that others, such as those for employment tribunals, are designed to deter use of public provision is a constitutional monstrosity. The level of fees is crucial and must be significantly lower than those that apply at present. Otherwise, users will see no benefit and this exercise becomes a cynical ploy to allow the closure of more physical courts.
And last, but certainly not least, is how we articulate the objective of policy. What are we trying to use technology to do? We have to be clear about this. My view is that we want to reduce the cost for users (because it is unacceptably high and manifestly hindering access to justice); compensate for the withdrawal of lawyers that came with the cutting of legal aid; and to reinforce the notion for all citizens that there is, in an American phrase, equal justice. So, I end this post with the position from which I would actually begin looking at policy. The specific aim should be something like halving the cost for users and doubling their number (entering stage 1 – not necessarily going beyond the conciliation of stage 2). If these – or something like them – are not shared by the Ministry of Justice then its ministers should tell us what alternative key performance indicators they prefer and allow us to debate them.