Evaluating the Impact of Court Reform in England and Wales on Access to Justice
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Developing the Detail: Evaluating the Impact of Court Reform in England and Wales on Access to Justice Report and recommendations arising from two expert workshops 1 Acknowledgments The author would like to thank Professor Dame Hazel Genn and Professor Abigail Adams for their helpful comments on an earlier draft. Suggested citation: Byrom, N (2019) “Developing the detail: Evaluating the Impact of Court Reform in England and Wales on Access to Justice” 2 Contents 1 Executive Summary ............................................................................................................................... 4 2 Background ............................................................................................................................................. 6 3 About the workshops ........................................................................................................................... 7 4 Scope of the recommendations ........................................................................................................... 8 5 Defining vulnerability ........................................................................................................................... 9 6 Monitoring fairness ............................................................................................................................. 12 7 Defining “Access to Justice”- An irreducible minimum standard ............................................... 14 8 Component 1: Access to the formal legal system ........................................................................... 16 9 Component 2: Access to a fair and effective hearing: ................................................................... 18 10 Component 3: Access to a determination ..................................................................................... 25 11 Component 4: Access to remedy .................................................................................................... 26 12 Summary of recommendations ....................................................................................................... 27 13 Bibliography ....................................................................................................................................... 35 Appendix A: List of workshop attendees ............................................................................................... 39 Appendix B – Vulnerability and fairness datapoints ............................................................................. 40 Appendix C: Subjective measures of procedural fairness ..................................................................... 41 3 1 EXECUTIVE SUMMARY 1.1 The Court System in England and Wales is undergoing a period of unprecedented change. In 2016, Her Majesty’s Courts and Tribunal Service established a portfolio of change programmes1 which intend to introduce new technology, modernise the justice system and reduce costs. Cost reductions are expected to be realised through a combination of reducing staff, reducing the number of cases held in physical court rooms and reducing the court estate, as well as generating efficiency savings through reforming administrative processes. In addition to introducing cost savings, the stated aim of the reform programme is to produce a justice system that: “works better for all involved, uses court time more proportionately and makes processes more accessible to users” (NAO, 2018:1). 1.2 The HMCTS Reform Programme aims to reduce demand on courts by moving activity out of courtrooms, expanding the use of video technology, introducing online end-to-end processes, promoting the use of online negotiation, mediation and settlement and developing new asynchronous processes (such as Continuous Online Resolution) for use in areas of administrative justice (starting with appeals made in respect of a subset of welfare benefits cases in the Social Security and Child Support Tribunal). The programme consists of individual “service projects” for example, the Civil Money Claims Online project, which is creating a new service for initiating and resolving low value civil money claims online and cross cutting projects, such as court closures (estates) and video hearings. 1.3 Those involved in the design and delivery of the reform programme have made explicit commitments to ensure that the programme: “improves or maintains access to justice” and results in a court system that is: “just, proportionate and accessible”. The judiciary have adopted a crucial leadership role in respect of the reform programme, and in keeping with this role, have proposed six criteria according to which the projects developed will be: “tested, and if successful, implemented” (Senior President of Tribunals, 2019:9), the first of which is: “1. Ensure justice is accessible to those who need it ie to improve or maintain access to justice.” In addition in summer 2018, HMCTS agreed to “…write to the (Public Accounts) Committee by January 2019, setting out how it will identify and evaluate the impact of changes on peoples access to, and the fairness of, the justice system, particularly in relation to those who are vulnerable.”(HM Treasury, 2018:49). The Ministry of Justice led response, published in February 2019, confirmed the 1 The National Audit Office, who reported on HMCTS’s progress in May 2018, described the change portfolio as consisting of three related programmes which consist of many individual projects. The three programmes are: (1.)The HMCTS Reform Programme which is modernising processes and systems to reduce demand on courts by moving activity out of courtrooms. For example, it will introduce online services and digital case files and expand the use of video technology in hearings. (2) The Common Platform Programme which is developing shared processes and a digital criminal justice case management system to share information between HMCTS, the Crown Prosecution Service and the police. It is jointly managed by these organisations. (3) The Transforming Compliance and Enforcement Programme (TCEP) which is upgrading systems in HMCTS’s National Compliance and Enforcement Service, used to enforce court orders such as penalties and compensation. (NAO, 2018:1) 4 intention to evaluate the impact of the reform programme within these terms and stated that scoping for this evaluation would be finalised in Spring 2019. 1.4 HMCTS have publicly committed to: “using insights from external research and academia to validate and challenge our approach”(HMCTS, 2018b:15). To assist in this, The Legal Education Foundation, together with UCL Laws and academics at the University of Oxford, brought together 38 national and international experts in online dispute resolution, public law, civil procedure, access to justice research, court administration and evaluation to produce a set of recommendations to inform the development of a robust evaluation framework. 1.5 The paper is structured as follows. Sections 2-4 below set out the background to the current reform programme and the workshops before outlining the scope of the recommendations set out in this paper. 1.6 Sections 5 presents the definition of “vulnerability” recommended by stakeholders, which is drawn from the extant law, procedural rules and practice directions, augmented by research on digitally excluded populations. Section 6 recommends that any evaluation relating to the fairness of the justice system should encompass an assessment of the impact of reform on those individuals with protected characteristics under the Equality Act 2010. 1.7 Section 7 presents an irreducible minimum definition of “access to justice” derived from case law, which is capable of acting as an empirical standard for the purposes of evaluation. The components of this irreducible minimum standard are: i. Access to the formal legal system; ii. Access to an effective hearing iii. Access to a decision in accordance with substantive law iv. Access to remedy These components are interrelated, mutually supportive and non-divisible (for example, an observable increase in individuals accessing the formal legal system, of itself, is insufficient to justify assertions that access to justice has improved under reform). It is recommended that any evaluation of reform must examine the impact of the programme on each of these four components to arrive at a determination regarding the impact of the programme on access to justice. Assessments of the impact of reform on access to justice must be based on a holistic evaluation that explores the progression of a full range of cases and individuals through the system from claim to outcome. The Sections 8-11 set out the justification for each of the components and recommends approaches to measurement. Section 12 summarises the recommendations contained within the paper. 5 2 BACKGROUND 2.1 In England and Wales, a £1bn programme of reform (“the reform programme”) aims to develop a modernised justice system where cases will increasingly be dealt with online. In whole areas of the justice system, such as divorce and civil money claims, physical and remote hearings will be reserved: “only for those cases that cannot be otherwise resolved” (Vos, 2018:2). The stated ambition of these reforms is to create: “a courts and tribunal system that is just, and proportionate and accessible to everyone” (Lord Chancellor et al. 2016:4). By March 2023 Her Majesty’s Courts and Tribunal Service expects to: “employ 5,000 fewer full time equivalent staff, reduce the number of cases held