The Ministry of Justice in London has now followed the pathfinder reports of Lord Briggs with its proposals for the digitalisation of court and tribunal procedures. Confusingly, it has published two documents, both of which have to be read together to understand the full scope of the proposals. There is a Joint Vision Statement of the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals (https://www.gov.uk/government/publications/transforming-our-justice-system-joint-statement) and a document entitled Summary of Recommendations and Consultation (https://consult.justice.gov.uk/digital-communications/transforming-our-courts-and-tribunals/supporting_documents/consultationpaper.pdf) although actually it contains new material. Neither of these documents is particularly impressive as a government publication. Neither are as competent or comprehensive as the preceding reports from Lord Briggs.
The Vision Statement gets off to a particularly poor start. It begins: ‘Our justice system is the envy of the world’. Interestingly, the other document is mildly more balanced: it has our justice system as ‘internationally revered as one of the finest in the world’. You might be able to justify the latter but you cannot really just proclaim the former. What is the source? Is it true that jurists in, say Germany and Scandinavia, believe that our common law system is better than their civil system? In my experience, they are more than a little critical. What is more, you used to be able to extol the English system because its drawbacks of cost and expensive oral procedures were met by high expenditure on legal aid for those who would otherwise be unable to afford them. People round the world wondered at the cost but admired the result. But that is no longer the case. The Finns and the Dutch, for example, probably have better criminal legal aid. No one could claim that our current family law provision is the envy of the world. And high levels of fees are restricting access by ordinary people to ordinary claims in tribunals and small claims courts, The claim is nothing more than complacent bunkum. It is true that London seems to have become the court venue of choice for warring and divorcing Russian billionaires. The consequent mouthwatering fees are high enough to cause appointees to the Supreme Court to delay taking office so that full advantage can be taken of them. But, opinions might differ on whether this was more a cause of grief than envy.
As a number of commentators have pointed out, it is little less than bizarre to promote the value of accessibility to the courts without any mention of legal aid and court fees. It verges on the dishonest and surely the drafters of the paper could not really hope to get away with such a gross sleight of hand. Digitalisation of the courts is, in my view, to be supported because it holds the hope of bringing down court and tribunal costs to affordable levels, This seems not have occurred to the authors.
And a final point of general concern is the lack of detail about finance. The paper proudly proclaims that there will be an extra £970m for the courts, presumably on a one off basis. There is a reference deep in the summary paper to the alleged underuse of around half of the 400 courts still standing and the suggestion that ‘many will be closed’ but no detail. Presumably, the consequent sales are intended to meet the cost of the programme. In a document that trumpets the vale of transparency it would be helpful to have a bit of detail on the underlying financial assumptions. Perhaps, for example, if we knew the full story, more money could be made for legal assistance.
The paper proceeds to deal separately with the impact of the programme on different parts of the court and tribunal structure. A general observation would be that there is much that is a bit too general. This is particularly so for family courts where, actually, ministers are not ready to say anything except that they are thinking about what to do. On crime, there is more detail – sometimes verging on the bizarre. Personally, I have no problem with a proposal that unauthorised angling be dealt with by a postal procedure similar to that which applies for parking fines. I just would not think that worthy of mention in a high level report like this.
The suggestion that fare dodging could be dealt with similarly needs a bit more examination. That is extending postal procedures to offences of dishonesty where conviction may have serious consequences eg for foreign travel. It may be that we now regard fare evasion as a breach of an implied contract rather than a crime but, if we do, then let us say so explicitly and decriminalise accordingly. There are proposals for more use of video evidence from vulnerable witnesses which experts in the field seem to agree are desirable. More liaison between magistrates and Crown courts must be desirable but who would think that the radical proposal to merge the two has been hanging around for thirty years but rejected because of heavy Bar opposition? Even Lord Briggs thought that he ought at least to mention this proposal even as he rejected it.
There is some discussion of the extent to which users are digitally literate enough to take advantage of digital court procedures. This is a vital issue in small claims cases which often involve ordinary people on low incomes but there are no proposals as to how to overcome this. There is the general statement that there may be more need for assistance from agencies on the ground but no analysis of how this might be done and how this might be integrated with general advice provision. On tribunals, there is the suggestion that lay members may be reduced and procedures go totally online beginning with social security appeals. Really? What about all the contested cases relating to disability and employability? These cannot just be left to convenient algorithms. People need fair decisions and they need to understand that they are fairly taken.
So, all in all, rather a lot remains to be done in relation to these proposals. And, frankly, out of sight and unreported, Ministers and senior officials in the Ministry need to recognise that this document is not really up to scratch. As the former head of a number of tiny NGOs, with names like the Legal Action Group and JUSTICE, I would not actually have approved its publication on grounds of inadequate quality. How much the less should a government department be associated with it. O tempora, o mores.