In those not-so-distant days before all political discourse was dominated by the Brexit deal or no deal game, Michael Gove was spending his time as lord chancellor dismantling the legacy of his immediate predecessor
, Chris Grayling. Perhaps his greatest achievement in the top job at the Ministry of Justice (MoJ) was securing the £1bn budget for the modernisation of the courts and tribunals system, before he was dismissed from office in the aftermath of the Brexit vote. Under three years later, at a conference held earlier this week, an audience of international delegates were hearing about the progress the MoJ has made in its ambitious digital reform programme.
In her opening remarks to the conference, the chief executive of HMCTS, Susan Acland-Hood, said that more people in the world have access to the internet than access to justice and that technology gives us ‘the opportunity to rethink the justice system’. Richard Goodman, HMCTS change director, gave an overview of the progress the agency has made with the reform of the courts and tribunals system. He emphasised that the programme is a series of components that are built, tested and added in a system of layers.
Goodman said that HMCTS is not ‘turning off paper’ and that provision will be made for those unable to use digital services. He outlined the progress the department has made in building digital platforms, for example, in divorce and probate cases. The online divorce platform, he explained, has led to nearly 100 per cent of forms to initiate divorce proceedings being accepted, as against a 40 per cent rejection rate in the previous paper-based system.
Some of the international delegates showed a remarkable degree of candour in discussing the lack of progress, or even failures, in their jurisdictions. A few eyebrows were raised at the admission from one delegate that their government had wasted €80–90m on trying to graft an unsuitable case management system onto an existing court procedure. There were also big differences between countries in the challenges they face. For example, India has a backlog of 28m cases outstanding in its lower courts, while Brazil has a staggering 100m outstanding cases.
There was a good degree of agreement around the need to adopt the same case management systems across courts and to ensure compatibility of software in different agencies, such as the police, courts and prosecution services. There was less consensus around whether it is desirable to take the technological revolution to what some believe is the next stage of online virtual courts in which there are no hearings, but a judgment handed down at the end of a rolling process in which the parties submit evidence.
In the UK, the Traffic Penalty Tribunal is held up as an exemplar of this approach. The tribunal’s chief adjudicator, Caroline Sheppard, gave an engaging pitch about the service, which deals with parking ticket disputes between local authorities and motorists. All the indications are that the service works very well, but it is dealing with matters in which the facts are relatively straightforward, as they can usually be verified by video evidence and the legal issues are for the most part simple. I must confess a degree of scepticism on whether this approach can be adopted for most welfare benefits tribunals, as the MoJ plans to do.
For online courts to work, there needs to be an investment in advice and support to assist people in using the technology. Possession and use of a smartphone does not furnish the user with the necessary knowledge and comprehension skills required to deal with what may be a complex legal issue. Legal aid and other cuts have devastated the availability of legal advice services for claimants and so they are less likely to be able to obtain independent assistance.
While I don’t doubt the sincerity of the many people associated with the development of digital justice services in their belief that they can be used to increase access to justice, the investment Gove secured came at a price: HMCTS is expected to save £265m a year by 2023
, including reducing its staff by a third to 10,000. The experience of the much smaller-scale Traffic Penalty Tribunal in response to digitisation was to shift administrative staff to customer support roles to make the service work. There were no redundancies.
The roll-out of universal credit is likely to put a considerable strain on the tribunal service, which is already creaking under an increased caseload. To be effective, adopting a more inquisitorial approach in the sort of rolling process envisaged for benefits tribunals will, I’d argue, need greater support for appellants (including independent legal advice), and the tribunal system itself will require more judicial and other resources, such as a budget for ordering expert reports. Like so much else with the justice system, what is needed is not budget cuts but a change of direction from the Treasury if the potential of digital innovation to provide greater access to justice is going to be realised.