Online Courts and the fear of ‘Managed Decline’

A video  of a University College, London conference in February on The Case for Online Courts still provides a good briefing about the issues involved. Participants included some of the major players – the legendary Richard Susskind, head of the Court and Tribunal Service Susan Acland-Hood, Senior Tribunal President and Court of Appeal judge Sir Ernest Ryder and the two leaders of the different branches of the legal profession. There was only one obvious – though rather important – absentee.

The conference presentations were eminently sensible and thoughtful. Professor Susskind proclaimed his commitment to a cautious and empirical approach to development. No feckless enthusiast, he. We should proceed through a fourfold approach: starting modestly with pilots; studying the results, research; building incrementally, refining; and specifically ‘not one big bang’, restraint. Nor did anything said by Ms Acland Hood contradict such caution. Reform was to built ‘from the bottom up’ and, in the language of the times, in a suitably agile way. Sir Ernest Ryder revealed a similarly sensitive and incremental approach to implementation in the tribunals for which he is responsible and which is festooned with consultative groups. It did seem, however, that everyone envisages pretty well full implementation in three years time.So time for research and refinement may well prove rather short.

Sir Ernest extolled six impeccable characteristics of the future he impresses on his Presidents: one system which is first class; one judiciary; better quality than present; specialist; innovative; and valued. On reflection, you might argue that greater access should be among them and such thoughts might help to reveal the appearance of Banquo’s ghost at 1 hour four minutes into the video. At that moment, Sir Ernest is in full flow: ‘We need to solve the problem(s) of … restricted access to justice – not least because of cost – that has led to managed decline … We can no longer sustain managed decline … You get to the point of of a precipice … We are on the very edge of that. Our judges tell us we are on the very edge of it and our users tell us we have gone beyond that edge in certain circumstances’. In other words, all the good work could be undone by government ministers uncommitted to access to justice.

Such thoughts reveal the absence of the one key player from UCH’s line up. The view of Her Majesty’s Courts and Tribunals Service is not, after all, that of the government. Digitalisation is but one of a range of policies being pursued by Ministers of Justice. Others, to which Sir Ernest is alluding, relate to cuts in government expenditure and rises in user costs. The Supreme Court has just issued a magisterial rebuke to government policy in relation to employment tribunal fees which were set at levels restricting access. Legal aid has been cut from matrimonial cases with ministers doing little more than still soliciting ideas on how to mitigate the effects.

Behind any discussion of the role of online courts in England and Wales has to be an acknowledgement of the elephant in the room: Ministers are proceeding at speed because they want to sell court ‘assets’. And online social security adjudication – the first area for digitalisation in Sir Ernest’s plans – will bring negligible benefit if other reforms are not made. Current rules allow the relevant Department to announce the timeless review of any case which is appealed. This has, as you might expect, severely staunched the flow of appeals. Users get stuck in a limbo: the good news is you can appeal; the bad news is that we can convert that into a review on which we have no time limit. Ministers have agendas which are not related to increasing access to justice: indeed, demand its restriction.

The Supreme Court found support for its decision on employment tribunal fees in EU law but, happily, the fundamental principles were also set out much earlier in the very cannons of the English common law. Behold Blackstone: ‘ A right of every [one] is that of applying the courts of just for redress of injuries .. the law in England … must at all times be open to the subject …’ Sir Edward Coke took the proposition a little further and in latin: justice must be ‘Libera, quia nihil iniquius venali Justitica’ … Free, because nothing is more iniquitous than saleable justice.’ And, of course, behind it all the ringing tones of Magna Carta in 1297, well beyond the reach of Europe: ‘We will sell to no man, we will not deny or defer to any man either Justice or Right’.

So, as the UK’s constitution comes under what may well be the most sustained scrutiny since 1688, this would be a good time for the Lord Chancellor and Secretary of State for Justice to indicate that, as far at least as this government is concerned, the demands of austerity will not frustrate the good intentions of those advancing a digital agenda. Without that, sceptics of the promise of the sunlit digital uplands will include not only outright technophobes but political cynics. Digitalisation could become, as Sir Ernest hints, simply be another element in the precipice of managed decline. That would be a tragedy wished for by none of the participants in UCH’s roundtable.

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