Modernising the Courts: questionable values, insufficient irony and problematic presentation

A sense of irony is an unvalued quality among modern civil servants, at least here in London. The rising court manager of today is relentlessly on message, reflecting the style of a well-trained politician. This is dangerous – to policy development in the longterm and to to policy presentation in the short. Take the example on the second page of HM Courts and Tribunals Service (HMCTS) promotional leaflet on its digital reforms: Justice Matters – how our change programme will make services better for everyone who uses them:

We are developing an easy-to-use probate system. Currently, the service for probate can be time consuming with the completion of the form alone taking many weeks because of the information that needs to be gathered. It is also complex, with the result that 40% of applications need some re-working. Our online system will help us get it right the first time through a new streamlined application process.

Well, who would think that this wonderful new probate service comes with a dark side? Nothing here that hints that the digitalisation might be wonderful but that users will miss some of the advantages of the old ways as they are forced to stump up fees that were, prior to the election, going to rise from a current maximum of 215 to 20,000 pounds – a rise which even had a House of Commons committee speculated was likely to be unlawful.

The trouble with insufficient attention to how the reader will perceive a document like this is that it  jolts the usually uncritical recipient into paying it more attention than might otherwise be the case. After all, it is just pretty routine advertising – not a full policy discussion. But, too much is skirted over. Page 6 states that HMCTS will ‘review and reduce the size of our estate, sell buildings we no longer and renovate those we do’. Silence on the key questions – what is the size of the projected income from sales; what percentage of that is going to innovation; and what will the position be on the continuing revenue needs of the new system? This reform is, at least partly, about accelerating a court closure programme already proceeding at breakneck speed. That is why Ministers are attracted to it: you can’t just brush that under the table.

You might say that it is unrealistic to expect civil servants to face up to difficult political questions. After all, they are responsible only for the operational elements of the reform. Politics and funding is for the politicians. Well, fine but how would Jeff Bezos respond to any attempted division between Amazon’s delivery and its costs? This kind of divided vision does not work in the real world and it will not be part of real people’s experience of the digital world which the HMCTS is creating. Digitalisation demands an holistic approach to its subject.

If you had not been irritated by the glibness of this presentation, you might pass over the three ‘guiding principles’ stated as being behind the reform. After all, they sound uncontroversial enough:

Our guiding principles

• Just – the independent judiciary are supported by processes that are modern, transparent and consistent

• Proportionate–the cost, speed and complexity are appropriate to the nature of the case

• Accessible–affordable, intelligible, and available for use by all

The system will provide targeted and supportive care to those who need it, reducing unnecessary stress for victims and the most vulnerable.

However, on examination, these reveal a degree of selection when compared with values selected as reflecting ‘broad international agreement regarding the core values that courts apply in carrying out their role’ and set out in a document entitled The International Framework for Court ExcellenceThis was published in 2013 by an impressively wide consortium which included which the Australasian Institute of Judicial Administration, The Federal Judicial Center (US), The National Centre for State Courts (US), the Subordinate Courts of Singapore, the European Commission for the Efficiency of Justice (a Council of Europe organisation of which the UK will remain a member even after Brexit), and the World Bank. Its set of values was:

Equality before the law;  Fairness; Impartiality; Independence of decision-making; Competence; Integrity; Transparency; Accessibility; Timeliness; Certainty

Approach the comparison as a lawyer. What has gone or been changed and why? Observe no mention of equality before the law in the HMCTS document. No mention by the HMCTS that the independent judiciary be supported by processes that are to be fair – only modern, transparent and consistent. And what on earth does ‘modern’ mean? The International Consortium’s absolute value of timeliness is downgraded by the HMCTS to the ‘speed … appropriate to the nature of the case’.

Nit-picking, the HMCTS might argue. But, how come there is no mention either  of Article 6 of the Europe which applies to the UK via the Human Rights Act?

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

The HMCTS must be aware that there has been considerable academic discussion of how this is compatible with digitalisation of the courts.Observe the requirement for a hearing within a reasonable time without any qualification of proportionality. Observe too the right to a public hearing –  which may be maintained by way of an opt out of digital processes – but might be mentioned. But, how does HMCTS intend to deal with the issue of the exclusion of the press? Even in the most gung-ho celebration of government thinking, you have to deal with this.  Of course, we all know that Ministers in this government do not like being bound by the European Convention and that the plan was to opt out of it as a sop to the Brexiteers once they lost the EU referendum but, of course, it did not work out like out that and, even though Ministers might not like it, the HMCTS has to deal with the compatibility of its proposals with the Convention. Not to do so now is too much of a sleight of hand and just stores up problems for later.

And let’s go back to the fundamental issue revealed by asking the question: how would Amazon do this? Well, my guess is that it would identify a price point, a time requirement, quality criteria and build a system that met them. We all know that the HMCTS has no control whatsoever over the price point for all that it may talk about ‘affordability’. We need more transparency on that. The problem at the moment is that we know the input – the HMCTS is going to spend GBP 1bn – but we do not know what output is expected by which these reforms can be judged. Ministers must require the HMCTS to put itself on the line – publicly. What are we getting for our billion in terms of improved services, precisely? What will be the new time expectations, volume expectations, quality criteria? Replace all the general gush in this promotional leaflet with some hard information and some specific targets. Maybe the election – which has halted the proposed implementing legislation – will give a chance for more reflection though you wouldn’t hold your breath. But, oh for some sense of irony and perspective.

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