212.It is widely agreed that modernisation of the court and tribunal system is long overdue. Even those who have expressed trenchant criticisms of some aspects of the HMCTS reform programme recognise the need to update IT systems, improve WiFi and video technology in court and tribunal hearing rooms, upgrade court buildings and improve HMCTS administration. In times of fiscal restraint, many have welcomed the Government’s investment of more than £700 million in the modernisation of courts and tribunals, with a further £270 million promised for the criminal justice system.
213.HMCTS engagement with stakeholders has been mixed. Some witnesses they felt that they had been kept in the dark about developments in the reform programme, or believed they had been encouraged to respond to Government consultations about court closures after decisions had effectively been made. Others found it hard to understand the programme’s overall direction. HMCTS has struggled to communicate its overarching vision for the programme and that there is still an unacceptable level of uncertainty in the criteria by which success will be measured. We have recommended, above, that reform projects be evaluated by reference to established access to justice standards.
214.One of our main concerns is that enhancing access to justice appears to be ancillary to the reform programme rather than being adopted as its central goal. Had access to justice been the primary focus of the reforms, we do not think we would have received such a volume of evidence criticising the approach of the HMCTS—in particular, its response to the experiences of those who lack digital or legal capability or who are too poor to afford access to the internet, and the needs of those who are disabled, elderly or caring for young children, making it hard to manage a multiple-bus journey to a courtroom over two hours away. HMCTS’s enthusiasm for video links and video hearings is in sharp contrast to the views of people with first-hand experience of using this barely researched technology, who pointed to the communication barriers that it can create. A shortage of front-line staff in many courts has sometimes compromised access to justice.
215.Reductions in the scope of legal aid and difficulties in obtaining first-stage advice and support were mentioned time and again by witnesses. Many argued that the impact of restrictions imposed by the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 and the related phenomenon of “advice deserts” could not be ignored when considering the impact of the reforms and individuals’ access to the court and tribunal system. While the Post-Implementation Review of the LASPO Act led to publication of the Government’s Legal Support Action Plan in February 2019, progress in implementing that plan appears to have been very slow.
216.The steps HMCTS has taken to address barriers to accessing digital justice services are insufficient in the absence of adequate legal advice/support and public legal education. Closure of court counters has had a particularly harsh effect on people who cannot obtain legal aid. All this highlights a more fundamental problem within the reform programme: the mistaken assumption that people with limited legal capability will be able to navigate their way through conventional and digital court processes without the benefit of legal advice.
217.As we noted above, the court reform programme has constitutional importance, and we emphasise that access to justice is a central element of the rule of law. While cost savings and efficiencies are important, HMCTS must confirm that these take second place to access to justice in the vision that underpins the reform programme.
218.We cannot ignore the Government’s failure to provide enough publicly funded legal advice and representation to support court users who, for whatever reason, struggle to navigate the justice system without support. The success of many aspects of the reform programme depends on this being addressed as soon as possible. We urge the Ministry of Justice to ensure comprehensive delivery of its legal support action plan within the time frames stated in the action plan document.
334 We acknowledge that the judiciary has established six important principles by which the transformation programme should be judged, including: to ensure justice is accessible to those who need it; and to design systems around the people who use them.
335 For example, Bonavero Institute of Human Rights (); Chartered Institute of Legal Executives (); Institute for Criminal Policy Research (); IPSEA (); Law Centres Network (); Law for Life (); Prison Reform Trust (); Public and Commercial Services union (); Revolving Doors Agency (); The Association of Consumer Support Organisations (ACSO) (); The Law Society of England and Wales ()
Published: 31 October 2019