A major report on access to justice and the digitisation of the courts and tribunals service was published earlier this month by The Legal Education Foundation (TLEF).1TLEF is a grant-giving charity that has supported LAG, including a grant that assisted Legal Action with its digital services. Digital justice: HMCTS data strategy and delivering access to justice – report and recommendations (October 2019) is the work of Dr Natalie Byrom, director of research at the charity.

Byrom was appointed to HM Courts and Tribunals Service (HMCTS) as the expert adviser on open data and academic engagement for what the report describes as an initial period of three months. The Ministry of Justice (MoJ) secured a budget of around £1bn in 2016 to modernise courts and tribunals by introducing digital systems. It said that the purpose of the reforms is to create ‘a courts and tribunal system that is just, and proportionate and accessible to everyone’, and HMCTS has pledged to ‘maintain or improve access to justice’ (see para I, page 2 of the report).

The timetable for the programme has slipped from four to six years and it is the subject of an ongoing investigation by the House of Commons Justice Committee. The committee is ‘worried about the access to justice implications’ of the reforms and pledged to put these ‘at the heart of our inquiry’ (see February 2019 Legal Action 4).

The MoJ and HMCTS have committed to improving data collection systems and making data available to independent researchers. Earlier this year, HMCTS published a report that included the promise to use information on the characteristics (eg, demographics, income level and geographical location) of people who use the justice system to ‘inform service design and the design of our national services’ (Putting people at the heart of reform: response to PAC recommendation 2, January 2019, para 4, page 4).

Byrom, in her research for the report, gathered views from academics and other experts on a ‘framework’ to evaluate the impact of the reforms on access to justice (para 3.6, page 13). A crucial element of this is what she has dubbed ‘an irreducible minimum standard of “access to justice” under English law, which is capable of acting as an empirical standard for the purposes of evaluation’ (para 4.14, page 17). Four key components of this are cited:

The report also argues that the government is legally committed to ensuring measures of vulnerability are developed to evaluate the effectiveness of the reforms. Byrom has identified 13 attributes, including educational achievement and postcode, as well as protected characteristics under the Equality Act 2010, to produce a matrix of components against which the government needs to collect data in order to meet its legal obligations (fig 4-2, page 18).

At the core of the TLEF report are 29 recommendations on the collection of data and its use to improve access to justice (pages 7–8). These include putting systems in place to collect data on the 13 attributes to measure vulnerability identified in the report (recommendation 2, page 7). The use of ‘unique identifiers’ to monitor users’ progress through the system is also recommended (recommendation 1, page 7).

Perhaps the report’s most eye-catching proposal is the suggestion that the government should obtain external funding to pay for data engineering fellowships to work for six to 12 months in HMCTS (recommendation 21, page 8). Their task would be to sort out a catalogue of the data held and include explanations on who was responsible for which data sets (para 4.57, page 30).

‘We welcome this report, as if the recommendations are implemented, it will give researchers access to data in order to measure the effectiveness of the reforms in providing access to justice for the most vulnerable,’ said Carol Storer, interim director of LAG.

The report is silent on the budget reductions planned on the back of the digital and other reforms, including the selling off of court buildings (see September 2019 Legal Action 10 and a response to that article from HMCTS chief executive Susan Acland-Hood). According to the National Audit Office (NAO), £265m a year in savings are projected once the programme is completed (Early progress in transforming courts and tribunals, HC 1001, NAO, 9 May 2018, para 1.15, page 6). A 4.9 per cent increase in the MoJ’s budget was recently announced by chancellor Sajid Javid (see October 2019 Legal Action 5). Storer commented: ‘We need some clarity from the MoJ if it still anticipates that digital reforms are going to lead to the savings they were originally projecting.’ She also pointed out that: ‘The MoJ might need to commit more resources to meet the needs of vulnerable court and tribunal users identified by researchers – some users will undoubtedly require expert legal advice and support if they are to navigate the system successfully.’