Digitalisation and the Courts of England and Wales

This is an edited version of a personal submission to the influential Public Accounts Committee of the House of Commons which is seeking evidence on the Court Modernisation programme following a critical report by the National Audit Office.

The Public Accounts Committee (PAC) has called for written evidence on the court modernisation programme.  In its statement on the scope of the inquiry, the PAC stated that it ‘will ask representatives from HMCTS [Her Majesty’s Courts and Tribunals Service] and the Ministry of Justice about the benefits the transformation will bring, whether enough progress has been made so the programmes deliver value for money, and how they can ensure all the organisations with a part to play are fully engaged with the programmes’.  This submission argues that;

(a) the criticisms of the programme by the NAO need to be heeded (see below);

(b) in relation to the proposed small claims procedure, the initial stage proposed by Lord Briggs appears to have been curtailed without discussion. The full initial intent should be reinstated;

(c) the court modernisation programme raises constitutional issues to which the PAC will, hopefully, feel able to make reference and suggest need consideration – perhaps in the context of forthcoming legislation on the programme;

(d) the programme requires a major access to justice audit to ensure a full measure of ‘user’ satisfaction that includes non-institutional users; and

(e) the programme needs to give some promise of reduced court fees in order to increase access to the courts.

This submission largely relates to the modernisation programme as it effects small claims. The PAC’s review is made in the light of the National Audit Office report on the court modernisation programme which made five particular criticisms that should be adopted. They were summarised at https://law-tech-a2j.org/her-majestys-courts-and-tribunals/court-modernisation-court-service-spins-response-to-audit-office-report:

First, the NAO’s basic position is that the HMCTS has overpromised and underdelivered: ‘expected costs have increased and planned benefits have decreased’. ‘The benefits claimed so far by HMCTS exceed expectations but risk putting pressure on its ability to maintain services’.

Second, HMCTS has left other players (like lawyers) out of the loop: ‘stakeholders do not fully understand how the reformed services will work in detail. The large number of interconnected projects in the portfolio make it difficult to establish and communicate how all the areas of activity fit together’.

Third, there is still no primary legislation underlying the programmes. This is not the fault of HMCTS. But, as a result, the reforms are basically being undertaken on a wing and a prayer and are dependent on ‘the judiciary as certain changes will need to be enacted through Procedure Rules Committees’.

Fourth, it is not clear that the HMCTS has got the whole picture in its rush to implementation – ‘Delivering change on this on this scale at pace means that the HMCTS risks making decisions before it understands the system-wide consequences’.

Finally, the fundamental wheeze of flogging off courts to fund the programme could get difficult: ‘there are gaps in the funding for reforms in later years’.

The Ministry of Justice has accepted that access to justice is a fundamental principle underlying its linked court closure and court modernisation programme (see eg consultations on closure). It has developed reform principles for the whole programme of which the first two, as reported in Lord Briggs interim report, are:

A model built around the needs of those who use it (citizens, business users, visitors and overseas users, victims, witnesses and state users).

A system which is accessible – easy to use, digital by design and default and well supported for non-digital users.

A criticism additional to those of the National Audit Office is that the modernisation programme is proceeding on the basis of a concern for expenditure but is not paying the same attention to access to justice. For example, the praised (by institutional and professional users) Digital Case Management System in criminal cases is not accessible to unrepresented defendants. This puts them at a significant disadvantage, particularly at a time when legal aid cuts will increase their numbers. There are significant questions about how well the court video connections are working, in practice, for defendants and witnesses that may be missed if the views of institutional users exclude their consideration.

The whole modernisation programme needs to be submitted to an access to justice audit. What is more, the courts perform a constitutional role which needs to be considered and monitored.

It should be noted that HMCTS already seems to have changed Lord Briggs original conception of the first phase of the civil process in small claims. He was influenced by the argument in the Susskind report and the examples of the leading online court programme, British Columbia’s Civil Resolution Tribunal as well as well-known Dutch project, the Rechtwijzer.  All of these place a high value on an interactive first phase where a solution is explored before litigation is commenced. The importance of this was specifically argued for in both the Susskind preliminary report and the formal report by Lord Briggs. Lord Briggs stated that:

success will be critically dependent upon the painstakingly careful design, development and testing of the stage 1 triage process. Without it, it will offer no real benefits to court users without lawyers on a full retainer, beyond those inadequately provided by current practice and procedure. Pioneering work in British Columbia suggests that it will be a real challenge to achieve that objective by April 2020, but one which is well worth the effort, and the significant funding budgeted for the purpose.

The concept of a Stage 1 can be seen in operation with the Solution Explorer of the Civil Resolution Tribunal. It is automated; it suggests different ways of approaching different problems; it suggests courses of action. It is a really imaginative way of seeking to keep potential litigants out of the court and of structuring their search for an out of court solution. The CRT have just announced on twitter that the explorer has been used in 34,000 cases.

As the online court proposals have developed, the idea of creating something like the CRT’s Solution Explorer or Lord Briggs Stage I have become increasingly more remote. It seems likely that Stage 1 will be reduced to a rather mechanistic and uninspiring signposting process – with Stage 2 deploying non-judicial conciliation officers to encourage agreement. This could end up looking – and being – rather cheap compared with the imaginative approach originally heralded.

Implementation of the online small claims court has yet to get under way. However, there have been four main other areas of controversy between Her Majesty’s Courts and Tribunal Service and critics of the practicalities (not the principles) of implementation.

First, the programme is to be funded by the closure and sale of existing courts. This is becoming a matter of political debate and threatens to run into a lament at austerity and the narrowing of the public realm. The Labour Opposition claims that, by March 2018, 126 court premises have been sold since 2010, raising only £34m. The issue has been taken up by the NGO, Transform Justice, which has made a telling case against some closures in particular, for example Cambridge Magistrates Court. And a row is brewing about how alternative travelling times to replacement courts are calculated. The pressure on HMCTS to find the money for its modernisation plans is putting the comprehensive structure of the courts in jeopardy and liberties are potentially being taken in relation to those defendants, litigants and witnesses who must rely on public transport to get to courts that are sill operating in a traditional manner. That includes many major criminal trials.

Second, there has been major concern about the amount of research that HMCTS has been prepared to encourage and support – though it may now be more open than previously. Professor Hazel Genn wants research to ensure that digitalisation does ‘not merely mean can people access the online system, but can they participate effectively and feel they have done so, and achieve substantively just outcomes.’ Effective participation is, of course, a requirement of the European Convention on Human Rights under its Article 6. And, in the same speech, she sets out a nine point research agenda. These cover much the same ground as the 30 research questions posed by the Public Law Project in a recent report. The Legal Education Foundation has also been active in this debate.

The key questions relate to how digitalisation may affect users, judges and – most importantly – outcomes. The proposed use of ODR in England and Wales is not subject to the market control where users can vote with their feet (as they did in the case of the Rechtwijzer which collapsed because not enough people chose to use it). The crucial point is about digital exclusion and its impact is crucial. The need for research is vital because the need for practical policies to overcome exclusion is overwhelming.

Third, the HMCTS is operating under a conventionally ‘agile’ methodology. This has been proved to release considerable creativity in commercial settings. But, it remains to be seen if it needs some greater structure when operating in relation to a public government function. After all, there are constitutional restraints on how defendants and litigants may be treated that form boundaries to what may be done. A major problem arises in the difference between how, say, Amazon or IKEA and the government would treat the creation of an online determination system. A commercial provider would decide on a price point, an estimate of numbers at every point of the process and then build accordingly. The HMCTS has allowed itself the luxury of implementing reforms without constraining itself with estimates of price or numbers. That just would not be possible in a commercial setting.

Work on online courts is vulnerable to lack of Parliamentary scrutiny because it is taking place without statutory cover. The appropriate bill was dropped because of the last election. This is particularly important because it would appear that some of the judiciary are restive with the operation of the Concordat between government and judiciary devised in the aftermath of the abolition of the office of Lord Chancellor. Sir Ernest Ryder, Tribunals President, stated in February this year that Lord Justice Briggs should be the last lone judicial colossus arriving back from the wilderness with a masterplan. There need to be changes of governance and a commitment to transparency and research: ‘If we are to ensure that our courts and tribunals fulfil their constitutional role, we – as judges – must ensure that they and their processes are not unexamined; that we lead reform in the light of evidence and through the proper use of expertise.’ It would be helpful for the PAC to endorse this approach.

Every element of the court reform programme should have publicly stated key performance indicators. These are already set for costs and staffing but these need to be joined by  participation and satisfaction rates for users. For example, the online small claims court should set a target of increased users entering the system even if it wishes to set lower targets for those requiring hearings. Further, there must be an independent evaluation team for each element of the programme which measures performance against the preset KPIs. The failure to do this betrays a lack of confidence by the HMCTS.

The court modernisation programme is the most ambitious in the world. HMCTS is working to targets that the National Audit Office concedes are, at best, bracing and, at worst, impossible. At the bottom of those able to express their concerns will be unrepresented poor defendants and litigants. They do not have the institutional backing that others can call upon. But, their interests cannot simply be jettisoned because they are inconvenient.

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