Dr Natalie Byron is the Director of Research and Learning at the Legal Education Foundation After a three month placement with Her Majesty’s Courts and Tribunals Service (HMCTS), Dr Byrom has written, and the foundation published, her ’29-point plan for tackling digital exclusion, and ensuring the government’s £1bn court reform programme delivers access to justice for all court users.’ The report has gathered acclaim across the board. HMCTS even liked it so much that it gave Dr Byrom her own promotional video clip to supplement one from HMCTS boss Susan Acland-Hood in which she extols this ‘excellent report’. You could not avoid regarding this as impressive even if you were not, as I am, also funded by the foundation.
Dr Byrom’s argument is that ‘“The move to online courts is an incredible opportunity to create a justice system that works well for everyone, whether they are an individual in crisis who has never been to court before, or a large organisation which regularly brings claims. We need to ensure that digital processes are designed and monitored in line with recognised access to justice principles. We also need to be able to measure how different groups fare under the online processes, compared with paper-based, or face-to-face systems. The detailed recommendations in my ‘Digital Justice’ report are intended to be a blueprint for putting access to justice at the heart of the HMCTS reform programme.”’
In pursuance of this, she recommends ‘that court users are asked a small number of questions about protected characteristics – for example, in relation to age, mental or physical disability, gender, and other factors associated with vulnerability. These questions would be optional and reflect the attributes currently used by judges to determine when an individual may be vulnerable. This information should be collected as a matter of routine.’
Dr Byrom is working within a tradition that the chief guru in the field, Professor Hazel Genn, traced in her 2008 Hamlyn Lectures back to Bentham and, more recently, Sir Jack Jacob – the father of modern academic civil justice procedure studies (and also, in the experience of many former articled clerks of a certain age including myself, a somewhat fearsome Chief Master of the High Court). Speaking but a year after the iPhone first heralded the digital age and well before its implications for courts were clear, Professor Genn in her Hamlyn lectures stood up for the old values against some of the new: ‘The system as a whole is threatened by resource constraints; procedural rules … [seen as] too elaborate and only serving the interests of lawyers; and adjudication … regarded as unnecessary and unpleasant. But these are important issues’. She demanded that reform be based on evidence and research.
Dr Byrom wants to hold the HMCTS to the fire on the original commitment that the digitalisation reforms will ‘maintain or improve access to justice’. In particular, she wants each individual litigant to be given an identification which allows, if they consent, the listing of thirteen characteristics of vulnerability. These will allow the tracking of the progress of their case.
3 Employment status/income
4 English as a foreign language
5 Gender reassignment
6 Highest level of education (proxy for literacy)
7 Postcode (permanent address, to identify whether in a care home, homeless, in an area of low internet coverage etc.)
8 Pregnancy and maternity
10 Religion or belief
12 Sexual orientation
13 Fear or distress connected with the case e.g. domestic violence/abuse, in detention, survivor of trafficking/trauma.
To the credit of the foundation and Dr Byrom (and, to be fair, the HMCTS), the whole idea of data collection and monitoring has got more commitment than ever before from those responsible for the courts and tribunals (which include not only the HMCTS but also the judges and the Ministry of Justice). Bentham, Jacob and Genn should all be pretty pleased about that.
We will see in due course what outcome actually emerges from the internal consideration of these proposals. In the midst of praise for HMCTS for its openness to Dr Byrom’s arguments, it may seem a little ungracious to raise a sceptical note. Even if her proposals were accepted in full, that would be too late to tell us anything useful about the effectiveness of the modernisation programme. HMCTS has committed only to actually doing anything about access to justice measurement until after the modernisation programme has been completed. The sheer reasonableness of Dr Byrom’s advocacy of an evidence based approach to policy highlights how unfortunate it is that the process proceeds with key performance indicators and targets for staff and resource savings but none for impact on access to justice. HMCTS’s position could be seen as rather too resonant of Saint Augustine’s famous prayer – ‘let me be chaste but not yet’.