Nimrod Ben-Cnaan raises some of the Law Centres Network’s concerns with the recent call for evidence on dispute resolution.
The recent Ministry of Justice (MoJ) call for evidence on dispute resolution is a strange and somewhat tendentious document (Dispute resolution in England and Wales: call for evidence,
opened 3 August 2021; closed 31 October 2021). ‘Our ambition is to mainstream non-adversarial dispute resolution mechanisms, so that resolving disagreements, proactively and constructively, becomes the norm,’ the introduction tells us, already with a false dichotomy. This ‘vision’ or ‘ambition’ for change comes as no surprise as it has been heavily trailed by the previous lord chancellor and more so by the master of the rolls. Were other paths of action considered at all? Why is this one preferable to them or to current arrangements?
The proponents ‘share a commitment to providing the strongest possible evidence base for the development of such an approach’ (page 4), but they ‘are not seeking views on the operation of the court service’ (page 8), even though they mention pressure on the courts as a driver. Instead, the questions are mainly oriented toward non-adjudicated dispute resolution, how well it performs and how it could be supported. Evidence, it seems, should only face in one direction.
The following has been adapted from parts of the Law Centres Network’s (LCN’s) submission. It has attempted to challenge with evidence some of the claims made in the call for evidence, and to question some of the new approach’s assumptions.
An urgency for change?
The timing of such sweeping changes suggests that the government intends to not let a good crisis go to waste. The call for evidence misleadingly cites the pandemic as a key driver of court backlogs. However, pressure on the courts is unevenly distributed across the system: the benefits tribunal, for example, has more than halved its outstanding caseload since the onset of the pandemic. There is also solid evidence that, in the worst affected areas – criminal courts and the employment tribunal (ET) – backlogs mostly pre-date the pandemic and are attributable to long-term under-resourcing, lack of appropriate infrastructure, or the effects of previous justice policies, such as the surge in ET claims following the 2017 cancellation of prohibitive ET fees.1The ET backlog may be about 52,000 claims, but 35,000 of them were there at the start of the pandemic, see: HMCTS management information – February 2020 to February 2021. For criminal courts, see: Reducing the backlog in criminal courts, National Audit Office, HC 732, October 2021. For the benefits tribunal, see: HMCTS management information – June 2020 to June 2021, Table 3.
The new direction towards ADR comes five years into the court reform programme, which is already taking two years longer to deliver less than it promised for 30 per cent more than originally budgeted. Its effects are still not fully documented and understood, so further systemic reforms seem at least premature, if not imprudent.2Even Professor Richard Susskind, a longstanding proponent of justice digitalisation, has urged caution, telling the House of Lords Constitution Committee last year that: ‘Our challenge is to take a step back and look at all the workload … A huge process analysis needs to be undertaken’ (quoted in Michael Cross, ‘Let’s be modest with change says online courts guru Susskind’, Law Society Gazette, 4 June 2020).
Speaking to the LCN conference in November, Sir Ernest Ryder, until recently senior president of tribunals, said that ‘civil justice has not got the online court that Michael Briggs, John Dyson and I conceived back in 2016–17 … It’s not quite, indeed not at all, where we thought we would be.’ One would not know this from the call for evidence, which already casts the court reform programme as a success and current ADR proposals as a natural next step.
This matters because, once again, we are being sold radical changes to justice on the promise of ‘jam tomorrow’; should it not materialise, then further ‘reform’ is introduced and the goalposts are moved. ‘We know [digitisation] can improve consistency and predictability,’ said Sir Ernest of a key plank of both the current court reform programme and ADR proposals, ‘but those things only happen by design, not by accident.’ To ‘digitise and hope’ is to make systemic unfairness more likely. What, then, is the core design of the mass diversion into ADR? What is its conceptual framework and its standard of scrutiny? How high is the illegality threshold when it goes wrong? A thorough approach needs to answer these questions comprehensively and from the outset.
A case for change?
The proposed mass diversion of people from courts and tribunals cannot rely on the claim, implied in the call for evidence, that people turn to the courts too readily – they do not. The MoJ’s own research suggests that only 41 per cent of legal problems were ‘dealt with’ at all by people taking any
course of action.3See Findings from the Legal Problem and Resolution Survey, 2014-15, MoJ, first published in March 2017, pages 86–87.
Rather, legal problems were more likely (45 per cent) to remain unresolved, or to somehow ‘sort themselves out’ (11 per cent). In fact, only 18 per cent of resolved legal problems were resolved formally, by either courts and tribunals or mediation. Therefore, in as much as legal problems were resolved at all, this is thanks to people’s resourcefulness in helping themselves (54 per cent) and to the efficacy of the legal and professional help they received (25 per cent), which resolved problems before they reached court. If the courts are overrun, it is not so much by wanton litigiousness than chronic under-resourcing – the problem that Robert Buckland QC highlighted to the prime minister in his September resignation letter.
Still, even if one intends to bolster ADR, one should maintain sufficiently accessible
– also affordable – recourse to courts or tribunals, as this is an important driver of engagement in dispute resolution and underpins settlement. As Lord Reed put it in R (Unison) v Lord Chancellor  UKSC 51
: ‘[A]lthough it is often desirable that claims arising out of alleged breaches of employment rights should be resolved by negotiation or mediation, those procedures can only work fairly and properly if they are backed up
by the knowledge on both sides that a fair and just system of adjudication
will be available if they fail’ (para 72, emphasis added). Accessible recourse to courts and tribunals is particularly important in disputes with public bodies, which we believe should not be left to mediation at all due to the inherent power imbalance between the parties. Immigration and welfare rights caseworkers, for example, are familiar with the Home Office and Department for Work and Pensions stirring to action right before certain hearings.
The call for evidence asks whether ADR can achieve ‘better outcomes’ compared with those achieved through the courts (page 11). This question is misleading because it does not compare like with like. The court has the power to investigate and request evidence be brought before it, in order to make findings of fact and then apply and interpret the law in the circumstances of the case. It has a clear procedure aimed at ensuring fairness and it can order that remedies be made to the wronged party. Mediation, however, is primarily preoccupied with reaching an agreed resolution; it is, more or less, a structured negotiation. The primary interest here is not in applying the law or vindicating rights or attaining substantive justice, and, with current statements suggesting the use of private services, it lacks the authority of the court. We also know that: ‘The top two things that people desire as an outcome to their contentious legal issue are [a material settlement] and for somebody to recognise their rights or meet responsibilities
.’4Legal needs of individuals in England and Wales: technical report 2019/20 (‘Legal needs’), Legal Services Board and The Law Society, page 8 (emphasis added).
Can a service that does not primarily concern itself with rights and responsibilities be universally appropriate for resolving contentious legal problems?
The notion put forward by the Civil Justice Council (see page 7 of the call for evidence), that ADR must be made compulsory in order to increase engagement with it, is problematic: can one be said to be exercising one’s voluntary
consent to a resolution if one is compelled
to take part in the negotiation leading to it? ADR channels have been available for some time and are popular among lawyers in private practice. Those finding the level of public engagement with them unsatisfactory should ask why this is so before toying with compulsion. They may find that, in line with the consistently low levels of public understanding of legal services in general, people simply do not know enough about ADR, and probably not enough to trust in its validity as an appropriate alternative to courts or tribunals.5Successive legal needs surveys show that only about one in six people with a legal problem understand it as such, making their path to help longer and more tortuous. General ignorance about legal services has preoccupied both the Legal Services Board and the Competition and Markets Authority since 2016.
Many still seek the experience of justice
at courts and tribunals, and to force them elsewhere would deprive them of their sense of ‘having their day in court’: feeling that court is ‘for you’ (especially if you experience some form of disadvantage), following and participating in proceedings and having one’s voice heard. Policymakers should bear this in mind because research increasingly associates a positive experience of justice with increased legal confidence and legal capability, as well as enhanced trust in civic institutions.6Legal needs, page 33.
Cause for concern
Justice policies of the past decade look like successive attempts to curtail access to justice. The stage was set by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) (2013), which claimed to seek to divert people from the courts by restricting access to legal aid, creating a surge of litigants in person left to fend for themselves.7The claim of intending to divert people from the courts was rather undermined by subsequent remarks. Criticised by the Public Accounts Committee in 2014 for embarking swiftly on a large reform programme with no prior research into evidence to support it, then-MoJ permanent secretary, Dame Ursula Brennan, admitted that: ‘The evidence … required … was that the government said, “We wish to cut the legal aid bill …”’
The only help the court reform programme (2016) offered them was technical support for digital interactions, without increasing their legal capability. Instead, the MoJ spent minimal amounts on sporadic initiatives, indirectly to mitigate against this damage, first through the Litigants in Person Support Scheme (2014) and later through the Legal Support Action Plan
(2019). As Sir Ernest Ryder told our conference, this ‘lack of any meaningful response to LASPO [is] a continuing thorn in our side, it’s frankly a festering sore in respect of access to justice’.
Would diverting more people from the courts help address this? I doubt it can, without setting out to be demonstrably equitable by design. We already know who is in greater need of targeted support of the kind that LASPO removed: they tend to have the lowest incomes and be from an ethnic minority, and tend to have problems to do with their livelihood (benefits, employment and finance) or with their individual rights.8Legal needs, page 35.
They are at higher risk of digital exclusion and data poverty. They also tend to belong to the third of the population (32 per cent) who have low legal confidence in achieving fair outcomes, and who are more likely to not take action, thinking it would not make a difference.9Legal needs, pages 22 and 80.
To address inequalities in access to justice is, then, down to strengthening people’s agency
: helping them to identify a legal problem as such, know where to seek help, discern among regulated services, take action and make informed decisions, and offering them legal assistance if they are unable to adequately represent themselves. To not do all this and simply send them to ADR would make them feel that they are at the lean end of a two-tier justice system. They would, of course, be right, because the courts would still remain available to those who have the means to ‘lawyer up’ and seek adjudication.
This issue calls for more open and careful consideration of the evidence, and research to cover knowledge gaps. The gaps between positions in this debate are narrower than they appear. Digitisation is here to stay and should be widely utilised, only carefully, after thorough testing and with meaningful support for those struggling with it. Non-adversarial dispute resolution is valuable in some circumstances, but patently inappropriate in others. We all want to help people ‘access the support they need at the right time’ to help them ‘get the most effective resolution’ (see page 6 of the call for evidence); except that beyond this, our justice system must continue to be premised on facts and the law, and enable people to vindicate their rights, rather than merely invite them to compromise on them.