What happened when the grumpy old commentator made his way to the Ministry of justice to meet the altogether more youthful and enthusiastic staff of Her Majesty’s Courts and Tribunals Service at a ‘Public User Event’ this morning? Well, certainly not a Pauline moment of conversion and a heaven-rending shout of repentance. Nor, however, a totally unthinking confirmation of well honed prejudice. Something slightly more nuanced.
In a way, the most impressive thing about the day was the HMCTS people. The format was a bit ungainly but rather effective – a series of short presentations to groups in small rooms with insufficient chairs. That must have involved, in all, three or four dozen staff who all talked with passion and openness with a process that clearly engaged them. To deliver that is a demonstration of some management skill both by ministers willing to allow it – and senior executives of HMCTS able to foster it.
And the approach of the HMCTS boots on the ground was a good deal less wooden than the statements of its official publications – which tend to the rather tiresome language of unremitting success. These were people dealing with real problems in real ways – from signage in courts left with reduced staff as the to how you managed consultations with users. There was a genuine sense of a shared endeavour in a real world.
The HMCTS team reflects the relative success of the Government Digital Service (GDS) as a whole. GDS gets pretty good anonymous reviews as a place to work and it seems to do relatively well on international comparisons. It seems likely that, overall and with some exceptions, it is doing a fair job in transforming government – for all that the politicians’ aspiration of digital by default may be overblown. The formats of its online documents are clean, serviceable and well branded. You can see that in the developing court documentation. The petition, for example, that is being drafted for online divorce is noticeably from the same stable – and manifesting the same style – as other government forms such as those relating to cars or passports. And, more generally, the incorporation of agile methodologies, collaborative approaches and a commitment to user-centredness is transforming how government reforms delivery.
HMCTS has around 50 distinct digital projects and, we were told, no less than five regularly sitting public engagement forums. Most of these will, no doubt, go well. There are promises to capture previously undreamt of data on such matters as equalities to prove this. HMCTS has even encouraged the secondment of outsider Dr Natalie Byrom of the Legal Education Foundation for three months to act as expert adviser in open data and academic engagement. Initial uncertainty over the virtue of data collection appears to have been overcome.
The problems of the programme remain, however, threefold. First, the more that the processes of the courts are made transparent, the more the need for assistance for litigants in person becomes apparent. The current draft of the online divorce petition lacks the ‘red flags’ that you would expect for domestic violence and is poorly integrated with sources of assistance that can be more advocacy oriented than a court – for example, citizens advice’s CourtNav programme. HMCTS might argue that this is a bit unfair because the previous paper systems were not that accessible. So, why should it have to face this problem, compounded as it is by the Government’s desecration of legal aid? However, there clearly is a problem and, cut it as you will, about a quarter of prospective users probably cannot access digital court processes – through a mixture of both a lack of digital and legal capability. Something has to be done.
HMCTS’s answer to restricted access is an 18 month long pilot from last March managed by the Good Things Foundation and delivered through the Online Centres Network. This is an attempt to focus on digital assistance separately from legal assistance. However, from a presentation at the conference, it is likely that, in practice, the network’s members will service both: they will have direct access to a special telephone number for queries; they will soon have a capacity for online chat and screen sharing. Much of the work of the centres in the network already acknowledges that people who are digitally excluded are often also socially excluded. So, already, the concept that assistance can be limited to digital is being challenged. And, if Catrina Denvir is right, then it will be much harder than seems to have been appreciated to separate digital from legal capability. In other words, effective assistance will require help to people not only with process but with substance. That will set up tensions yet to be explored.
Secondly, we do not know the detail of much of what will be implemented – and detail is, of course, the residence of the devil. What will be the final draft of forms on which there is currently consulting? Are we dealing simply with work in process which will be improved or with documents that show fundamental flaws? And what about costs? Ministers deliberately choked off cases to the employment tribunal as a political gesture until told their vastly inflated costs were unconstitutional by the Supreme Court. Will they threaten access by imposing massive fee increases for lower level cases when the court sales run out? Simple things like video and wifi need to be done well – and, indeed, rather better than presently. Otherwise the foundations of the digital edifice will crumble before the full superstructure is in place.
The third set of problems are the macro ones well beyond any member of the HMCTS implementation team (and well explored in previous posts). Funding digitalisation by selling courts might have looked like a good wheeze but it associates the new programme with exaggeration of old problems about travel and physical access. There remain no access to justice indicators driving the programme – only financial and staff savings. And Ministers in this Government do not have a creditable track record in relation to access to justice (see legal aid cuts; the Supreme Court’s criticism of tribunal fees; the ‘hostile environment’ in immigration cases and the substantive unfairness and protection from appeal of much social security decision-making).
So, a final assessment? Well, after all, perhaps continued scepticism is justified. But digitalisation carries the hope of greater transparency and may give reform a new momentum. We will just have to see. But – it probably is best not to hold your breath.