Conclusions and recommendations
1.We are concerned about delays in processing divorce petitions after the initial digital application, as this slows down parties’ ability to resolve arrangements for children and financial disputes. We recommend that HMCTS set and publish ambitious targets for divorce completion times. (Paragraph 22)
2.HMCTS has achieved some successes in developing user-friendly digital processes. However, our evidence raises important questions about accessibility and indicates potential barriers to access to justice, even for users who have good digital skills. (Paragraph 24)
3.There are clear risks to fairness in inviting unrepresented defendants to enter pleas online in criminal cases. We recommend that this facility, should it be introduced, be restricted to defendants who have obtained legal advice and that the legal aid rules be changed to allow access to advice in all such cases. (Paragraph 25)
4.Poor digital skills, limited access to technology, low levels of literacy and personal disadvantages experienced by particular groups create barriers to access to digital justice services. HMCTS has not taken sufficient steps to address the needs of vulnerable users, particularly as regards an absence of adequate legal advice and support. (Paragraph 38)
5.We are concerned that some people contacting HMCTS about their court or tribunal case, particularly on pay-as-you-go mobile phones, may incur significant call charges that they cannot afford. We recommend that HMCTS establishes a Freephone service for members of the public, similar to the Freephone system for Universal Credit. (Paragraph 39)
6.We welcome HMCTS’s commitment to maintaining paper processes in parallel with new digitised justice processes but it is unclear how, in practice, users can obtain and complete necessary documents without using the internet or having access to a printer or the support of a legal adviser. We recommend that HMCTS make it clear how it will ensure that people can access court forms in paper format without using a computer to do so. (Paragraph 42)
7.We welcome the intention behind the HMCTS assisted digital service but note that take-up so far has been low. We recommend that, by April 2021 the network of assisted digital Online Centres be extended to deliver comprehensive national coverage. Centres must provide walk-in access, and where possible be co-located with advice agencies to facilitate referral for legal advice and support. (Paragraph 49)
8.We commend the initiatives within the tribunal system that have enabled tribunal staff to provide personalised support for applicants using digital processes and recommend that this standard of customer care be adopted within Court and Tribunal Service Centres. (Paragraph 50)
9.Digital literacy must not be confused with legal capability, which gives users the skills and confidence to deal with legal processes and helps them recognise when they need to seek legal advice; equally, the role of public legal education in supporting legal capability needs to be better understood. The Government must acknowledge the role of public legal education in building legal capability and should make a commitment to piloting public legal education within its action plan for legal support, with a view to rolling out a national programme by 2022. (Paragraph 61)
10.We are concerned by evidence suggesting that some defendants appearing by video link face communication barriers with the court and their legal representatives, and that there appears to be no guidance on facilitating participation. We recommend that, by April 2020, HMCTS develop guidance in consultation with stakeholders on recognising and addressing communication barriers that may affect vulnerable defendants in court. (Paragraph 71)
11.We do not consider that the interests of justice are served by HMCTS providing video equipment that is unreliable or of poor quality, nor by providing inadequate video conferencing facilities for defendants and their legal representatives. HMCTS must expedite planned investment in upgraded video equipment and WiFi facilities throughout the criminal courts estate, as well as expanding video conferencing facilities for the defence. (Paragraph 72)
12.We recommend that HMCTS does not introduce fully video remand hearings before robust piloting and evaluation have been carried out, alongside sufficient investment in video equipment and reliable WiFi. (Paragraph 75)
13.Video links and fully video hearings have value for administrative hearings in civil, family and tribunal cases involving legal professionals, but may compromise justice for vulnerable people, especially those unrepresented. While judicial discretion in use of video hearings provides important protection, we recommend that all litigants in civil, family and tribunal cases have the right to decline to give evidence by video. (Paragraph 82)
14.Research on the use of video hearings and video links in the UK is limited. What there is raises many questions as to its suitability for anything other than straightforward cases. We recommend that, as a priority, the Ministry of Justice commissions independent research on video hearings and video links with a primary focus on justice outcomes. This research should be completed before HMCTS makes more widespread use of video technology in courts and tribunals. (Paragraph 88)
15.Court closures in urban and rural areas have created serious difficulties for many court users, with worrying implications for access to justice. We recommend an immediate moratorium on further court closures pending robust independent analysis of the effect of closures already implemented, with a particular focus on access to justice. (Paragraph 108)
16.We agree with the Lord Chief Justice that it is wholly unreasonable to expect judicial office holders, HMCTS staff and external court users to put up with dilapidated and uncomfortable court buildings. We are alarmed by evidence that disabled facilities are not reliably available in court buildings. We recommend that HMCTS accelerate its programme of building repairs, if necessary by increasing its maintenance budget, and that it adopt more ambitious management standards for routine maintenance work in court and tribunal buildings. (Paragraph 114)
17.Notwithstanding the possibility of “mitigations”, application of the new HMCTS travel benchmark to potential future court closures could create access barriers for an unacceptably high proportion of court users, including many who live in poverty, who have caring responsibilities or who are otherwise vulnerable. (Paragraph 124)
18.We recommend that HMCTS adopt a revised travel benchmark: that the overwhelming majority of users should be able to reach their nearest court or tribunal hearing centre within 1.5 hours by public transport. No user should be expected to leave home earlier than 8.00 am or return home later than 6 pm and, where necessary, courts and tribunals should be willing to adapt their sitting times to accommodate this. HMCTS should consult on how it will take into account the cost and complexity of journeys to court in addition to travel time. (Paragraph 125)
19.We recommend that HMCTS adopt a clear strategy for establishing and using supplementary venues, including a default position that supplementary venues be established in every area where there has been a court closure in the past 10 years. (Paragraph 129)
20.To support transparency and consistency of approach, we recommend that the suitability of supplementary venues for different types of case be subject to published judicial guidance. (Paragraph 130)
21.We received powerful evidence of a court system in administrative chaos, pointing to the harmful impact of staffing reductions on the experiences of victims, witnesses and legal practitioners as well as litigants and defendants. Staff shortages in many courts are so serious that they may undermine access to justice and threaten to compromise the fairness of proceedings. (Paragraph 149)
22.We recommend that HMCTS does not proceed with planned and much deeper staffing cuts unless it is confident of being able to provide an acceptable level of service to court users. (Paragraph 150)
23.Our evidence suggests that the move to centralised service centres is not fulfilling the needs of many court users, particularly the most disadvantaged. We are particularly concerned about the loss of public counters in civil courts. Sufficient staff should be based in court buildings to provide reassurance and expert, face-to-face guidance for court users. (Paragraph 151)
24.Staff in courts are clearly overworked and under-remunerated. We are deeply concerned by HMCTS’s over-reliance on agency staff and the low morale rates indicated by its staff surveys. We recommend that HMCTS seek to retain existing experienced staff, through addressing problems of remuneration, workload and morale as a matter of urgency. (Paragraph 152)
25.Open justice is a centrally important principle, and one which helps to maintain the rule of law. We do not doubt the Government’s preference for maintaining public and media access to courts and tribunals, but this appears to be a secondary consideration within its drive for modernisation, and one that we fear may fall by the wayside because of competing priorities in delivering the reform programme. (Paragraph 167)
26.We recommend that, in consultation with the senior judiciary, HMCTS prioritises the development of effective and accessible technical solutions supporting open justice to keep pace with the evolution of digital and video-enabled processes that take justice out of conventional courtrooms. (Paragraph 168)
27.Media access to court and tribunal proceedings, an important element of open justice, is likely to become more challenging because of digital and video processes. We recommend that the senior judiciary convene a working group to consider how to protect and enhance media access to proceedings, taking into account approaches used in other jurisdictions such as the PACER system in the USA. (Paragraph 171)
28.Modernisation of the court and tribunal system has potential constitutional implications which merit the scrutiny of Parliament. (Paragraph 177)
29.Given the importance of preserving and communicating the independence of the justice system from the Executive, we recommend that existing access to online justice processes only via the gov.uk website be discontinued and replaced without delay. (Paragraph 178)
30.Our evidence suggests that HMCTS has struggled to explain its vision for the court and tribunal reform programme. Given the programme’s constitutional, strategic and operational significance, we recommend that the Lord Chancellor and Secretary of State for Justice takes clearer ownership of the programme and assumes the lead in communicating its vision. (Paragraph 196)
31.Consultation and engagement should never be mere “lip service.” Early and effective engagement with stakeholders including judicial office holders at all levels is critical to the programme’s success, because this provides external expertise and detailed scrutiny of untested proposals. (Paragraph 197)
32.We recommend that the Ministry of Justice and HMCTS increase the resources dedicated to stakeholder engagement and adopt a more rigorous approach to analysing and reacting to the feedback received. (Paragraph 198)
33.We regret that the Ministry of Justice’s plans for evaluating its court and tribunal reforms are not as far advanced as might have been expected at this stage in the programme. We are concerned that reliance on “agile” design techniques in some projects may distract from analysis of implications for access to justice. The Ministry could do much more to evaluate the impact of the reforms on vulnerable and excluded groups. (Paragraph 210)
34.The Ministry of Justice should be as transparent as possible in its evaluation of the reforms. We recommend that the following evaluation approaches are adopted:
- projects within the reform programme, and the programme as a whole, should be evaluated against the access to justice standards set out in law: these can be broadly summarised as (a) access to the formal legal system (b) access to a fair and effective hearing (c) access to a decision and (d) access to an outcome;
- evaluation should prioritise monitoring the impact on access to justice for digitally excluded and vulnerable people, with a particular focus on justice outcomes rather than on processes alone;
- the transfer to digital systems should be used as an opportunity to collect detailed, anonymised data on the operation of courts and tribunals and the experiences of users by reference to their personal characteristics;
- the evaluation of the reforms should be seen as a long-term and ongoing commitment, and one for which the investment of resources is required. Evaluation must be robust and objective, using a comparator group where possible. (Paragraph 211)
35.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. (Paragraph 217)
36.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. (Paragraph 218)
Published: 31 October 2019