The ‘death zone’, often quoted in the context of ascents of Mount Everest, is that area above 8,000 meters where you have limited time to achieve your objective – or you die. It is in my mind because I am currently ploughing through a rather tedious account of the 1920s attempts on the world’s highest peak. Metaphorically, however, the death zone could refer to the end phase of any time-limited project where deadlines, once distant, are now rushing forward just as your best project workers are leaving for a new challenge: a nightmare that few not for profit managers will have escaped. And, specifically, in relation to the domestic court modernisation programme, ‘death zone’ is appropriate for the final phase of implementation –  highlighted by a report from the National Audit Office (NAO) published last week.

The NAO gives a sharp reminder of the essence of the court modernisation project. This is its opening presentation on ‘key facts’:

£540m – Reported spend on reform by the end of March 2019 by HM Courts & Tribunals Service (HMCTS); 127 – Courts and tribunals closed since the start of reform, with a further 12 still due to close; £124m – Reported proceeds by the end of March 2019 from property sales; £172 million – reduction in lifetime savings (to 2028-29) due to scope and timing changes in the latest business case … ; £244m – annual expected savings from reforms from 2024-25 onwards; 16,129 – full time equivalent (FTE) staff employed by HMCTS, of which around 2,000 are contractors in 2018-19. This is 91 fewer staff in total than 2017-18; 78 per cent of milestones due for this stage that were completed by January 2019; December 2023 – date by which HMCTS expects to complete reform, following a one-year extension to the timetable. HMCTS had previously extended the timetable from four to six years following scrutiny before the programme formally began in 2016.

You can tell how far this is from a concern with access to justice by comparison with the  participation statistics from British Columbia’s Civil Resolution Tribunal. These are produced on a monthly basis

These user-orientated statistics are not a sufficient concern for either the HMCTS or the NAO to consider them worth collecting. Their starting point is completely different. 

There are four areas of access to justice concern with the court modernisation programme. The first, covered by the NAO report, is the effect of court closures. The NAO has always expressed itself a bit sceptical of the wheeze of funding the court re-organisation out of courts sales. It appears that the only easy money to be made out of court sales is in London. Further sales are being cut back from 98 to 77 and the NAO expresses worries at the HMCTS criteria for allowing a court to be closed: ‘HMCTS recognised that it did not have sufficient evidence to assess changes in demand resulting from reform and is now creating indicators that attempt to measure this. This information will be essential in providing a sound basis for future closures.’

Second is the technical capacity of the new technology to handle cases. This is, actually, the least problematic area of concern. There is no reason why HMCTS, given the necessary competence, should not sort out online systems and video hearings. Professional users of the courts should benefit from this reform programme. 

The third area is the trickiest: the inconvenient presence of large numbers of self-represented litigants in both courts and tribunals. Some – perhaps a majority – will have technical capacities equivalent to professional users. But a significant minority will not. The NAO does not directly raise their fate but it is pretty damning on access to justice assessments: 

To more directly assess the impact of reforms, HMCTS has commissioned evaluations of a few high-profile initiatives. 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 plans to do an overarching evaluation of reform to ensure an appropriate level of independence from the delivery of the programme. Broadly, it aims to examine three themes around access to justice, costs to court users and fairness, drawing on a range of methodologies. 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.

And it is here that we encounter the death zone. The Ministry of Justice expands a little on the NAO on the earlier HMCTS response on this issue. The court modernisation programme ends in 2023. So, the NAO speaks with characteristic English understatement. The impact on the programme of a final evaluation due a year or more after it has been completed is actually pretty clear: it will be zero. Where would Amazon be if it had announced it would look at customer service standards only once it had got its online bookstore established? Government departments pick and choose at their peril at the developments they perceive in the commercial sector.

Death zone elements associated with the end of the programme will make things worse. The NAO worries that HMCTS will not meet its financial savings. So, the heat will be on to find them elsewhere. And there are two obvious areas. Court and tribunal fees are likely be raised to help meet the gap: this has been the practice for some time. It will not assist access to justice. And, secondly, you can predict that the rather half-hearted pilot to provide digital assistance will not survive a rushed end to the project. So, it is the bodies of the digitally excluded which will lie, like Mallory and the others who have died on Everest, below the summit and despite of the success of others who have climbed it and survived.

Image by Simon Steinberger from Pixabay.