The government was running out of time to embed a data strategy at the heart of the courts’ £1bn reform programme to assess whether digitisation would actually improve access to justice for all court users, according to a new report published this week. Last October, the Legal Education Foundation (TLEF), published its ‘Digital Justice’ report making 29 recommendations evaluating the government’s online courts programme and its impact and seeking to ensure all court users understood the system and had their needs met.
In 2016 Her Majesty’s Courts and Tribunal Service (HMCTS) announced the £1 billion reform programme to ‘modernise and upgrade the justice system’ (here) by reforming the courts and increasing the amount of work they undertake online. In the report published a year ago, the TLEF’s head of research Dr Natalie Byrom argued that whether access to justice was ‘maintained or improved’ through reform was ‘both an empirical and a legal question’. ‘In order to test, review and, where necessary, improve systems to meet this commitment, a robust strategy for data collection, analysis and sharing must be in place’.
Byrom argued that data must be collected to confirm that legal duties relating to access to and the fairness of the justice system were met. The report calls for ‘an irreducible minimum standard’ of access to justice under English law ‘capable of acting as an empirical standard’ for the reforms and evaluating their impact. The components of this standard would be access to the formal legal system; access to an effective hearing; access to a decision in accordance with substantive law; and access to remedy. The report identifies measures of vulnerability to evaluate the effectiveness of the reforms including educational achievement and postcode, as well as protected characteristics under the Equality Act 2010. ‘The collection and publication of this data is critical to building trust in reformed processes and encouraging adoption of new services,’ she said. TLEF seconded Byrom to the courts as an unpaid expert adviser for three months at the end of 2018.
Twelve months after the publication of Digital Justice, HMCTS responded to Byrom’s report accepting the majority of the recommendations, at least in principle. Acting chief executive Kevin Sadler, welcomed the recommendations on data collection and set out their plans on open data including establishing a new data governance mechanism.
However TLEF was critical of HMCTS’s slow take up of the proposals. Byron called it ‘a pivotal moment’ for the government to ‘fully embrace – and fully fund – a data strategy that will deliver digital justice for all’. There was ‘no better moment than now to step up the implementation of those recommendations’, she said. ‘Otherwise, we will waste the opportunity to make the UK a world leader in delivering digital justice for all.’
TLEF’s chief executive, Matthew Smerdon, said that over the last 12 months, the courts had made ‘disappointingly slow progress’ on moving forward on any of recommendations. ‘If the window of opportunity was vanishing a year ago when we first published the ‘Digital Justice’ report, it is now at risk of disappearing completely,’ he said; adding that COVID-19 ‘cannot be an excuse’. ‘Rather, the impact of the pandemic on the court service has shone a spot-light on why it is more important than ever to improve the quality of data collection to enable the digital transformation of the court service.’
‘One of the Government’s own key objectives, rightly, is to improve access to justice for all, whether that means white working class men in Wakefield, inner city black teenagers in Tottenham or disabled pensioners in Ipswich. If the recommendations in this report are not implemented, services will continue to be designed without the necessary evidence that shows that they are fair to people from different backgrounds. It will undermine the whole point of the Reform Programme to improve the judicial system, reduce costs and ensure everyone has access to justice. The Government will have failed its own test.’
Matthew Smerdon, TLEF