A speech earlier this month from the Senior President of Tribunals for England and Wales looked dull enough. Entitled ‘Securing Open Justice’, it set before the Max Planck Institute in Luxembourg – safely out of the jurisdiction – a contemporary assessment of what Sir Ernest Ryder saw as the current issues. But, what it reveals is the pressure on the judiciary from digitalisation which is poses both management and constitutional challenges.
As does any senior judge on any political matter, Sir Ernest was happiest speaking in code.
But, really, the domestic message of his speech was pretty clear: the current constitutional settlement – introduced by Labour legislation in 2005 – needs amendment. And a major pressure point is the increased need to grapple with major reform like the Online Solutions Court. He was tactful enough not to throw in the additional pressures of unprecedented austerity and funding cuts. In previous speeches, he has talked of the danger of a ‘managed decline’ of courts and tribunals.
The interface between democracy and the judiciary is murky in most constitutions. And on a number of levels. The supreme authority of the US Supreme Court was only decided by the latter in the face of egregious abuse by the then President. The role of our own Supreme Court has become so contentious that it recently elicited the infamous accusation that its judges were ‘enemies of the people’ over Brexit from the Daily Mail. But, the tensions have not only been about decisions. More out of the political limelight has been a struggle for power over funding and policy. No one seriously challenges the abstract constitutional concept of judicial independence (and even the Mail and the Daily Telegraph may have – and certainly should have – been embarrassed by utterances that had even the bishops in uproar). But, every jurisdiction has somehow to manage the stresses of budget setting for the courts (generally an executive or legislative function, whether directly or indirectly) and implicit political policy making in decisions over court procedures and access.
The British constitution traditionally fudged this area through the handy existence of the office of Lord Chancellor. This was a prestigious post – still higher in precedence than the Prime Minister and just under the Archbishop of Canterbury. The Lord Chancellor was, by tradition, a senior legal figure in the House of Lords whose political ambitions (if any) were well behind them. Isolated from the hurly-burly of democratic accountability, the Lord Chancellor had the space (and budget) simultaneously to be the mouthpiece of the judiciary to the executive and the executive to the judiciary. All this was fine until spending reached a level where some democratic accountability was called for: judges and lawyers could not have all they wanted and so hard political decisions had to be made. That point was reached during the reign of Lord Mackay, Mrs Thatcher’s long serving Lord Chancellor. The legal profession hated him and even the judges were a bit sniffy – to some degree because he was a Scot and not one of them. But, actually, history reveals that he did a good job in maintaining an ancient institution that operated as ‘a hinge or bracket’ between elements of the constitution.
As Sir Ernest recognises, we are well past the point of pragmatic fudge. That is what Labour realised in 2005 with the logical and politically correct abolition the office once held by Sir Thomas More and allowing its replacement by a successor in the Commons. This is a process which in recent times has given us as officeholders such as Michael Gove, Liz Truss and Christopher Grayling. Those are names that will be unfamiliar to the majority of readers unfamiliar with British domestic politics: suffice it to say, there is good reason for that. The trouble is that insufficient thought was given to the way that the best aspects of the former arrangements would be maintained.
Sir Ernest has a number of contributions to make on current constitutional arrangements. Labour dug its way out of a major conflict with its then judiciary by coming up with a ‘concordat’ which formally shared accountability between judiciary and ministers for administration of the courts. The trouble is that much depends on finance which is the exclusive preserve of the government. Sir Ernest is much too careful to stray into that minefield. But, he argues that, if they are to make policy, then judges need access to more research and they need greater corporate organisation – with broader representation: ‘If, for instance, my Executive Board is to consider properly, policy decisions concerning the redesign of our Tribunals, its advice must be fully informed; greater experience in the digital world will not only ensure that our advice is up-to-date, but equally it will enable those giving advice to be able to go beyond reviewing material.’ He wants something like the federal judicial centre or the National Centre for State Courts in the US.
What is more, and a bit more controversially for his judicial constituency, he wants an end to the fiction of the brilliant judge who can conjure answers out of his finely tuned mind for any problem: ‘Reform based on the views of a single judge or group of judges, based on anecdote or impression, or even on a certain amount of evidence drawn from willing parties can no longer be the way we approach the matter. Judges while adept at researching the law, are not by and large trained in the skills of empirical, scientific research. They are not well-versed in dispute systems design. They do not necessarily understand or appreciate the connections, or potential connections between the courts, the legal profession, Ombuds schemes and so on. They are not necessarily at home in the digital world, in terms of design and implementation. Sir Michael Briggs, whose excellent report is ushering in the digitisation of our civil courts, is perhaps the last judge who will be in a position to carry out a detailed review of the historic type.’
But Sir Ernest appears to have in his sights not only the lone judicial giants but, even more controversially, Her Majesty’s Courts and Tribunals Service, currently an outpost of the Ministry of Justice. He does not spell it out – and he is, no doubt, well advised not to do so – but he delivers a pretty damning critique of those currently in charge of digital delivery: ‘We are now in a new, digital world. It is one that will and does require the judiciary to take a more considered approach. We cannot lead reform as an exercise in the ad hoc. In order to understand, to design and to test reform we must, it seems to me, engage far more than we have in the past with academia, with management experts, digital experts, with the professions, regulators, Ombuds and wider society. Reform must be based on proper research; robust and tested. It must consider the latest design techniques. It must be open to scrutiny, and communicated clearly and readily to the judiciary, government, Parliament, the professions and the wider public … The judiciary must therefore support, promote, and commission research. Just as the unexamined life is one not worth living; the unexamined and unresearched reform may not be worth taking.’
Sir Ernest has to be right. Court reform needs to be more open and transparent. Proposals have to be much better researched and we need to know, in the mantra of another government ‘what works’. But, haul down the sails and cast a sharp eye to windward. The political storms will be coming fast and furious.