The elephant in the room
.
.
.
Administrator
James Sandbach looks at the plans for Transforming our justice system outlined by the new ministerial team at the Ministry of Justice.
No justice system can claim to be improving accessibility when access to legal aid is continuing to decline sharply.
The Ministry of Justice’s (MoJ) recent consultation on Transforming our justice system (Cm 9321, September 2016) seems, at first glance, to press all the right buttons: it has a commendably clear framework, principles, aims and vision about how the MoJ sees the justice system evolving, combined with a welcome commitment to invest substantial new resources in Her Majesty’s Courts & Tribunals Service (HMCTS) to improve digital capability, case management systems, online dispute resolution (ODR) and alternative dispute resolution (ADR), and ‘virtual’ hearing and conferencing facilities. The vision statement talks of a system that delivers just outcomes and proportionate procedures, and is accessible to users, including ‘those not comfortable with the law or technology’ (page 3). However, look deeper and the gloss peels away pretty quickly.
First, it is notable that criminal and civil legal aid are scarcely mentioned. This is despite all the post-Legal Aid, Sentencing and Punishment of Offenders Act 2012 afflictions that legal aid has experienced, the curiously mislaid promise of a review of the 2012 reforms and the massive unmet demand for legal assistance. The crisis, especially in civil legal aid (see LAG’s ‘Justice in free fall’ report on page 8 of this issue), is the real elephant in the room here: no justice system can claim to be improving accessibility when access to legal aid is continuing to decline sharply.
The consultation rightly stresses the importance of ‘assisted digital’ services (section 7.1, pages 13–14) to accompany the proposed modernisation of the court system and the Briggs reforms (see Civil courts structure review: final report, Judiciary of England and Wales, July 2016) to facilitate ‘virtual’ hearings and ODR, ‘[i]mproving process and technology for more efficient and digital justice’ (section 2.4, pages 6–7). LAG strongly supports Lord Justice Briggs’s vision of multi-channel strategies for interacting with HMCTS, with assisted digital services and public legal education attuned and responsive to the needs of vulnerable users and those with poor IT literacy. However, the consultation provides little, if any, detail about how assisted digital services might be developed beyond stating that HMCTS is looking at it. A more robust consultation would have put forward some concrete policy options such as:
developing a body of trained, motivated customer service staff within HMCTS whose purpose would be to guide digitally limited users through the legal process;
tendering nationally for a single assisted digital services provider; and
tendering for a consortium of providers to offer effective digital support services, or tendering locally for the provision of assisted digital coaches.
The extension of summary justice explored in this consultation (section 7.2, pages 15–17) similarly looks fine in principle, but deeper examination suggests the potential erosion of legally assisted rights. By all means, defendants can be encouraged to accept genuine responsibility through early guilty pleas, but not to the extent of undermining their rights to contest prosecutorial decisions, and the implication of the consultation’s approach is that some pleas should be entered online without adequate legal information, let alone obtaining legal advice beforehand. The risk is that you end up with a process lacking the necessary time to obtain full disclosure of evidence. Swift justice is not necessarily fair justice and it appears that this process could be used directly by private companies (eg, regarding transport fare evasion) seeking RoboCop-style enforcement without having to involve any judicial authority or scrutiny at all. And what about comprehension difficulties of those with learning disabilities, autism or mental health conditions who fall short of full legal incapacity? Again, the consultation is silent on this.
Finally, there is a chapter on tribunals (page 10) that includes proposals to move some entire proceedings online, starting with digitising the First-tier Tribunal (Social Security and Child Support) (FTT (SSCS)). Again, there may be a good case for some types of tribunal claims to be handled online. However, given that users of the FTT (SSCS) are already among the most excluded user groups in terms of both comprehension and digital and legal literacy and capability, this isn’t the right starting point; in fact, it is using the poorest and most vulnerable in our society as guinea pigs in a big IT experiment that could go horribly wrong, resulting in claimant appellants losing not only their rights, but also any income at all.
If that risk were not enough, another has been added: the proposal to change the usual practice and rules on panel composition, so that medical and other non-legal experts might be dropped from panels in favour of adjudication by a single legally qualified panel member (section 7.3, pages 18–20). This appears to come close to undermining the whole basis of tribunals. Sir Andrew Leggatt, in his seminal review of tribunals in 2001 (Tribunals for users – one system, one service), considered that a key reason for using the tribunal system to resolve disputes was that tribunal decisions are usually made jointly by a panel of people who pool legal and other expert knowledge, and such decisions are much the better for that range of skills. Going for a default position that panels might consist only of a single member appears, at least in part, to be driven by Department for Work and Pensions concerns, with a hidden agenda to exclude medical and disability experts from tribunals dealing with disability benefits such as the personal independence payment (PIP), thus re-engineering the system to reduce the high overturn rate on PIP decisions.

About the author(s)

Description: James Sandbach - author
James Sandbach was director of policy and external affairs at LawWorks from 2017 to 2021.