A guest post by Professor Roger Smith, who blogs on the use of technology to advance access to justice
Smith: Many questions left unanswered
After months of debate on the court modernisation programme led by Her Majesty’s Courts and Tribunals Service (HMCTS), we now have an authoritative analysis from the National Audit Office (NAO). The Legal Futures story is here and the full report here.
HMCTS chief executive Susan Acland-Hood professed herself happy. The report was “helpful and constructive”. She was pleased that “the NAO acknowledges our ‘early progress’”. Her comments were more reflective of spin than the span of the NAO report.
The NAO acknowledges the ambitious nature of the reform. But comments like “HMCTS’s change portfolio presents a very significant challenge” need minimal decoding to reveal a bit of concern.
The NAO reported that the HMCTS itself accepts that “the changes it is proposing are far broader than those in comparable programmes in other countries”. That reflects the international comparison which should increasingly be made of this sort of reform.
At the core of the HMCTS programme are two major elements: a reform element to digitalise court cases, and a Common Platform designed to develop a shared case management system between the major players in the criminal justice system (except the defendants). There is also a third element of upgrading compliance and enforcement procedures but it has less effect on the system as a whole.
To be fair, most users accept the success of the digital case management system for current users (except that defendants in person appear to be excluded). The major problems arise over the digitalisation and associated court closures.
HMCTS has already scaled back on its initial ambitions – lengthening the programme from a proposed four years to six. The latest judgement by the Infrastructure and Projects Authority is “that the successful delivery of the programme is in doubt and that there were major risks or issues in a number of key areas”.
HMCTS told the NAO not to worry: it knows of, and is seeking to address, the difficulties – not that it highlighted them in its response.
The NAO’s analysis is considerably more nuanced than portrayed in the HMCTS gloss. There are positives but there are some negatives which HMCTS has to address – at least five in the report and one extra.
First, the NAO’s basic position is that the HMCTS has over-promised and under-delivered: “Expected costs have increased and planned benefits have decreased… The benefits claimed so far by HMCTS exceed expectations but risk putting pressure on its ability to maintain services.”
Second, HMCTS has left other players (like lawyers) out of the loop: “Stakeholders do not fully understand how the reformed services will work in detail. The large number of interconnected projects in the portfolio make it difficult to establish and communicate how all the areas of activity fit together.”
What is more, the courts actually need investment from bodies like the Crown Prosecution Service to make sense of their reforms.
Third, there is still no primary legislation underlying the programmes. This is not the fault of HMCTS; it is a byproduct of Brexit and the failure of Mrs May’s electoral gamble last year. As a result, the reforms are basically being undertaken on a wing and a prayer, and are dependent on the judiciary as certain changes will need to be enacted through various procedural rules committees.
Fourth, it is not clear that the HMCTS has got the whole picture in its rush to implementation: “Delivering change on this on this scale at pace means that the HMCTS risks making decisions before it understands the system-wide consequences.”
Finally, the fundamental wheeze of flogging off courts to fund the programme could all get a bit dodgy if the timing does not work out: “There are gaps in the funding for reforms in later years,” the NAO says.
And the missing element? People. Digitalisation provides an opportunity to reduce cost for users, particularly those who are poor and suffering from the withdrawal of legal aid, and to make the system more accessible.
Increased access to justice has been the promise of a programme which looks increasingly unlikely to deliver it – particularly in the context of a government with the least commitment to access to justice than any I can remember.
Legal aid has been slashed; ‘hostile environments’ for claimants fostered; fees hiked to levels that have required the intervention of the Supreme Court. No one in this reform programme seems to have the least commitment to exploring the kind of imaginative involvement of users manifest in overseas models such as the Dutch Rechtwijzer or the Civil Resolution Tribunal in British Columbia.
The NAO helpfully highlights three rather revealing ‘key facts’ at the beginning of its report:
- £265m annual expenditure savings from the HMCTS change portfolio from 2023-24 onwards;
- 5,000 planned reduction in the number of HMCTS full-time-equivalent staff by March 2023; and
- 4m planned reduction in number of cases held in physical courtrooms each year.
Where is any reference to increasing the satisfaction of litigants? Encouraging the number of entrants into the court system (if not the number involved in trials)? Allowing users to share the benefit of reduced costs by lowered fees? Giving defendants in person access to the shared digital platform? Setting concrete guarantees of accessibility to physical courts for those users unable to use digital?
Earlier this month, the judiciary issued a consultation on the reforms. This is not yet publicly available but was clearly seen by Legal Futures. That had the job losses at 6,500 and emphasised the falling number of courts – from an initial 460 to a current 350 “with more reductions to come”.
The Lord Chief Justice said: “These reforms will deliver savings – a necessary condition for securing the financial support of the government – but they will transform the way we operate the system of justice for the benefit of the public and enhance the administration of justice.
“Our approach to this modernisation must be rooted in our shared commitment and dedication to improving the administration of justice and access to justice so that we continue to uphold the rule of law.”
The judges want better administration of justice and access to justice. The NAO had wants more secure delivery on ministerial promises. We, the public, need an access to justice audit of reforms, some of which could, indeed, be beneficial.
But, with increasing clarity, the NAO shows how the government will get its pound of flesh – by sacrificing that of the public, particularly unrepresented litigants and defendants. How inconvenient these people are: but how necessary it is to remember that it is they for whom the courts, in part at least, exist.
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