If you read one report on ODR and digitalising tribunals, read this one

A London-based NGO has produced a paper on one area of Online Dispute Resolution (ODR), The Digitalisation of Tribunals: what we know and what we need to know that deserves a wide readership –  internationally, domestically and within the Ministry of Justice. The Public Law Project has consistently punched above its weight since its foundation thirty odd years ago and, reflecting the growth of judicial review and administrative justice, has thrived ever since. This paper is well within its tradition of excellent contributions to debate.

The document is co-authored by two academics, Professor Robert Thomas of Manchester and Sheffield’s Joe Tomlinson, who is also research director for the PLP. It reflects the strength of their academic background and its first three sections provide an impeccable – and very balanced – review of reforms to administrative justice and changes to tribunals in England and Wales; advances in e-government leading to the creation of the Government Digital Service (GDS) and (understandably, rather more sketchily) the major developments in ODR. It then moves to consider the government’s proposals in the courts and tribunals which were set out in the ‘joint vision statement’ Transforming our Justice System jointly published by the Ministry of Justice, the Lord Chief Justice and the Senior President of Tribunals in September 2016.

It is worth reading the summary of how we got to where we are now. The authors take us through competing models of administrative justice; old and new models of tribunals; the initial failure but then success of the English and Welsh government’s ventures into IT; and they reproduce a helpful schematic analysis of the various initiatives of the ‘transformation’ programme being carried through by the Ministry of Justice’s agency, Her Majesty’s Courts and Tribunals Service (HMCTS). They are scrupulously fair and even rather generous in their assessments. They refute the widely promoted suggestion that government IT remains a disaster zone: after a revamp in 2011 ‘GDS was widely seen as the global leader. It topped the United Nations’ e-government rankings. It also cofounded the ‘D5’ – a group of the five most digitally advanced governments in the world.’

The authors’ generosity continues into their discussion of tribunals – of which the largest by number of cases deals with social security matters. Since the 1970s, social security tribunals (to give them a generic name) have had a mixed history reflecting the fact that they have often been seen by both claimants and government as unsatisfactory. There have been two periods when the solution was thought to be greater legalisation – the first in the 1980s and then again over the last decade as they were brought within the court system. The result, however, pleases no one. All sorts of wonders are now promised by ‘continuous online hearings’ where communication and hearings can be online; appeals can (allegedly) be quicker; and judicial case-management offers streamlining. Old-timers may find the current move towards less legalism little more than proof that ‘what comes around, goes around’.

There is a fundamental problem here to which the authors allude but do not, perhaps understandably given their overall purpose, explore. One plausible reading of history is that social security has been historically a poorly administered benefit, partly because of insufficient resources and partly perhaps as a disincentive to claimants. The responsible department has certainly been restless under any yoke of accountability. The report notes that the fairness of the current social security appeals system is largely scuppered by the routine  – and outrageous – non-appearance of departmental representatives. They tend to emerge only when they face a hostile decision which they wish to appeal. And, if you remember the climax (and if you have not seen this seeing indictment of bureaucratic indifference in the administration of social security, you should) of I Daniel Blake, Mr Blake’s case is only resolved once he manages to appeal. Otherwise, his life is dogged by the unaccountable ways of the anonymous ‘decision taker’ – presumably a computer responding to its programming. This is film as propaganda but, like the best, has the ring of an awful truth.

Social security adjudication does not take place within the quiet cloisters of the courts of law: civil servants are conscious of limiting the potential financial impact on government of any positive decision and the wish – made explicit by ministers in immigration cases and now infecting immigration decisions – to create ‘a hostile environment’. Nor does recent government policy indicate much of a general commitment to social justice and access to it. It took the courts to enforce realistic fees for tribunal cases in employment matters: otherwise, they were deliberately raised to levels that deterred applicants – something that ultimately fell foul of the Supreme Court.

Anyway, it is – reasonably enough – no part of the authors’ plan to engage in controversy about social security or anything else. They have a higher aim for which they need a degree of consensus. They have a list of 30 research questions which they argue must be answered both by privately funded research and, crucially, the Ministry of Justice whose co-operation will be necessary. No surprise, of course, that a report by researchers on research ends up arguing for more. But these researchers are measured, thoughtful and surely right.

The response of Ministers and the HMCTS to this report will be critical. It will allow an assessment of the ‘honesty’ of the digitalisation exercise. Is this genuinely seeking greater access to justice or is it simply a cost-saving exercise? We shall see. And, if there are 30 questions for digital tribunals, there will be as many for other aspects of the digitalisation programmes – particularly in relation to small claims and crime.

A further issue to be illuminated by the government’s response will be the way, discussed previously, in which the ‘agile’ approach works in practice. Does a practical problem emerge from its very flexibility that the impact of core issues such as constitutional restraints, due process and fair trial may be minimised? And beyond that general point is a specific one about collaboration between the judiciary and the government. The digital reforms are proceeding with the consent of the judiciary but there have been signs that the Senior President of Tribunals, Sir Ernest Ryder, has been reviewing his support. He may be realising that he has been bought too cheaply. Reform, he recently emphasised, ‘must be based on proper research; robust and tested.’ Furthermore, ‘It must be open to scrutiny, and communicated clearly …Just as the unexamined life is one not worth living; the unexamined and un-researched reform may not be worth taking.’

The Public Law Project, to its enormous credit, has thrown down the gauntlet and identified for Sir Ernest, the HMCTS and ministers what precisely needs to be examined. And, we shall soon get the measure of them all by how they respond.

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