We know how the court modernisation programme for England and Wales will end. Some equivalent of George W Bush will proclaim on a stand in for the USS Abraham Lincoln that the mission has been triumphantly accomplished. The reality in the courts, as in world politics, is likely to be more complex.
One reason that we know the ending is that we can see the present. The House of Commons Public Accounts Committee headlined its analysis: ’Little confidence sweeping courts reforms can be delivered’. Nothing daunted, HMCTS responded: ‘HMCTS agree that the Reform programme is ambitious and challenging but is pleased with the early progress that has been made’.
No doubt, Her Majesty’s Courts and Tribunals Service feel that they are doing a difficult job within a tight deadline and pretty rigid spending restrictions. Whether it is the best policy in such circumstances to send senior staff out with unremittingly positive messages of the sunlit uplands inhabited by the programme is a matter of judgement. It leaves them vulnerable to the practical gripe of practitioners who can’t get the wifi to work in the Royal Courts of Justice or just had to travel 50 miles to a court hearing where a key witness missed the one bus in the day.
One symptom of the problem is the massaging by HMCTS of such consultancy as it has commissioned. It has published research which staff use to claim that online video hearings are successful. But, hey, go back to the original. The research team actually declared: ‘The majority of video hearings experienced technology difficulties …’ They observed eight video hearings; two that switched to telephone after technology collapses and a further one that reverted to a physical hearing. Not a large sample: not that successful a pilot: ‘Once screened for technological and substantive issues, only a small number of cases were deemed suitable for a video hearing.’ Even then, the hearings were not exactly typical: ‘present in the courtroom was a technical support person and a project manager. There were also staff based at HMCTS available during the pilot to offer further technical support if needed. The large number of support people involved in each hearing meant that most technology difficulties were dealt with quickly and hearings ran smoothly. However, issues around scaling this process up need to be resolved.’ Those additional resources are not going to be present on a wet Tuesday in Barnsley. Yet this work is being used to justify the assertion that video hearings work perfectly well. They may well do; they certainly should; but the research does not say so.
By contrast, we now have a shot at the real deal. Last autumn, the Legal Education Foundation (full disclosure: my funder) assembled the great and the good of the empirical research world to consider the modernisation programme and have now published a report of its conference. This includes a set of recommendations for the measurement of access to justice including an appendix with 13 characteristics which HMCTS should be monitoring as routine – including race, sex, religion or belief, sexual orientation and language. Some knowledge of matters like this is crucial to measure whether access to vulnerable groups is being increased or decreased. Courts are a manifestation of social policy: we need to find ways in which we can monitor if they work. The report also sought to give a coherent meaning to the somewhat worn phrase ‘access to justice’.
The importance of defining access to justice and obtaining useful metrics is critical to any assertion that this programme is increasing such access as well as meeting the well publicised targets for staff and financial savings. Thus, the HMCTS needs not only negative goals for what it reduces but positive ones for how it increases its reach. The obvious danger of the programme is that institutional users and the government will gain at the expense of individual ones, particularly those unrepresented by lawyers. The prevention of this will require rigorous management. If HMCTS does not agree the suggested metrics to measure its impact, let it suggest its own.
The rush to implementation is truncating the process of transformation. Success is likely to be determined simply in terms of simply digitalising existing procedures. Objective and comprehensive research is being skimped in haste. And the rhetoric of success – measured only in terms of benefits for government and institutional users – has detached itself from the day to day experience of many practitioners and individual litigants, predominantly in the small claims court and, shortly, in tribunals. Behind all that is that there is likelihood that the funding gap foreseen by the Public Accounts Committee could be met by hiking up court fees and cutting back on things like digital assistance for litigants who require it.
The fundamental problem remains that the programme is too big and too fast. Lord Briggs decided not to go recommend progress by small integrated leaps: he went whole hog. Reports in Scotland and Northern Ireland expressed the need for more caution. Bounding the whole thing is the need – not really discussed openly by Lord Briggs to deliver the cuts that are the source of the Public Accounts Committee’s concern.
A constitutional problem is that the programme serves two masters. We have biblical authority for the undesirability of such a position. The current arrangements for the administration of the Courts and the judiciary were invented to get the then government out of a completely different jam more than a decade ago: they sought to finesse judicial responsibility with executive fiscal control. The detail was never really explored. You can see in the speeches of Tribunal President Sir Ernest Ryder an increasing realisation that the judiciary and the court service may have different goals; ‘‘Reform, he says, ‘must be based on proper research; robust and tested.’ Furthermore, ‘It must be open to scrutiny, and communicated clearly …’ As the LEF report points out, ‘Those involved in the design and delivery of the reform programme have made explicit commitments to ensure that the programme: “improves or maintains access to justice” and results in a court system that is: “just, proportionate and accessible”’ The programme was originally articulated it in terms of access to justice benefits as well as resource savings. Well, where are the targets for access to justice? Where is the research and examination? The PAC asked HMCTS to come up with targets and its response is that they are aiming to complete an interim report on how to do it by 2021. How inconvenient that the modernisation programme will be concluded by the time that they are devised and how illogical that the criteria which should drive a major part of the innovation should be invented only at the end.
There are two issues here that need to be separated. We need data by which the courts services can be seriously analysed. This is what is addressed by the LEF research. However, we also need management hypotheses and policy goals by which the programme can be shaped in advance. Ideally, the two will be related but the need for the latter is urgent. Is the programme planning to increase the use of civil courts by individual litigants; decrease it or keep it the same? What would be the implications of each of these three positions and what measures would need to change depending on the answers? Even more complicatedly, is it intended to increase the numbers interested in taking litigation but being diverted to other dispute resolution? That would be the implication of BC’s Civil Resolution Tribunal and its Solution Explorer. We have no idea what HMCTS thinks and yet we are rushing to implementation. If the issue is not considered then we may presume that the intention is to re-create the status quo. That is somewhat of a denial of the transformational properties of new technology.
And behind this concern hangs Lord Briggs concern that support for pre-litigation resolution – what he called Stage One – was central to his ideas for small claims: ‘without it the reform ‘will offer no real benefits to Court users’. Stage One was the online suite of tools similar to British Columbia’s Civil Resolution Tribunal’s Solution Explorer which allows potential litigants to be diverted from the court and tribunal system prior to issue.
Alas, the absence of any targets has allowed HMCTS no longer to even talk of Stage One. Yet, implementing some form of Stage One is all the more necessary to mitigate the impact of the cuts to legal aid implemented since Lord Briggs reported. It would help to bridge the gap between the Citizens Advice Service for example, and actually being a litigant in person.
We need these issues to be brought out of the darkness. To the extent that the LEF research helps with this process, it is greatly to be welcomed. And to the extent that the judiciary can be some form of counterweight to a government department seeking only cuts, that too is helpful. The higher judiciary was initially very bullish on the reforms. As the LEF reports, ‘Lord Thomas, the then Lord Chief Justice, speaking in 2015 stated that: “the overhaul of the machinery of justice now to be delivered would never have occurred without the judiciary assuming its new role of leadership”’. The current judicial leadership may be more sceptical of the programme. We need them to wield some of the authority that they, at least in theory, possess.
President Bush’s stand-in on the aircraft carrier seems unlikely to be the good Sir Ernest Ryder. Such triumphalism is hardly his style and he probably has too fine a sense of history. He has taken to argument by historical analogy: ‘Just as the unexamined life is one not worth living; the unexamined and unresearched reform may not be worth taking.’ But we need more than references to the classics and allusions to the Bible. We urgently need some goals, however sketchy, for this programme to show that it will increase access to justice as well as reduce expenditure. Then we need some proper research to show that this is what happened.
Picture from Pixabay.