Why justice depends on data

And why the courts and tribunals service is always offering jam tomorrow

How can we tell whether the courts and tribunals are operating effectively? How indeed can HM Courts and Tribunals Service (HMCTS) find out how successful their pandemic-related adjustments have been in England and Wales? How can taxpayers tell whether the £1bn allocated to the world’s most ambitious court reform programme is money well spent?

The answer, of course, is to start with the statistics. How many cases are completed each month? How long do they now take? How many users are satisfied with the service they receive? How accessible are the courts to vulnerable users?

But HMCTS don’t have these statistics — or, at least, not enough to answer all the questions that are being asked. Without them, it cannot deliver justice for all.

So says The Legal Education Foundation, a grant-making charity that seeks to improve public understanding of the law. To help the courts and tribunal service appreciate what data was needed and how it could be collected, the foundation seconded Dr Natalie Byrom, its director of research, to HMCTS as an unpaid expert adviser for three months at the end of 2018.

Byrom’s report was finally published a year ago. “There is an urgent need to ensure that HMCTS collect the data necessary to deliver on their public commitments in relation to evaluating the impact of reform and facilitating continuous improvement,” she said then.

As I explained at the time, Byrom recommended that HMCTS should consider the benefits and risks of introducing ID numbers for each court user. Individuals would have to provide personal identifiers each time they used a court service.

Experts in privacy law and data ethics would be consulted to ensure that the data was captured, stored and used in a manner that respected established legal and ethical requirements. But tracking individual litigants would provide a detailed understanding of how people used the courts.

Byrom also wanted HMCTS to start asking all court users 13 questions designed to assess their level of vulnerability. These would include questions on disability, income, knowledge of English, race and religion, gender, sexual orientation and fear or distress relating to the case. Replies would be optional.

That was last October. This October, we have a response from HMCTS. There’s a firm “no” to ID numbers: “unique identifiers for individuals are not part of the current scope of work”. I’m not surprised: I wouldn’t trust HMCTS to prevent highly sensitive personal data falling into the wrong hands.

What about the 13 vulnerability questions? Good idea, says HMCTS, but the only area so far where we’ve managed to implement this fully is probate. That, of course, is the one area where court users are least likely to be vulnerable. Obtaining formal authority to distribute a person’s assets does not involve a dispute with the state or anyone else — at least, at the initial stage — and if the deceased’s will is worth proving then there may well be enough money to pay a lawyer.

HMCTS has accepted the overwhelming majority of Byrom’s recommendations in principle — but offers a wide variety of excuses for what the Legal Education Foundation calls “disappointingly slow progress” in implementing them. For example:

  • Following consultation across government and with stakeholders about the design of our approach, work has begun…

  • Work is underway to gather information on initiation channels…

  • We … are engaging with experts, academics and stakeholders on the metrics used to assess effort, experience and perception…

  • We are working with MoJ to include this issue as part of the published departmental areas of research interest…

  • Extensive user research is underway…

  • We will … consult with experts, where applicable, as we identify measures for user engagement with reformed processes…

  • We are working to develop robust procedures for measurement and linkage of data…

  • We are developing approaches to collecting data…

  • We … will collect data on outcomes of cases in the future…

  • HMCTS have identified the data needed across all of our reformed services and are working to ensure that this data can be used effectively…

  • Our next step is to work with our current case management systems team to extract the information already recorded on enforcement…

  • We … will work with MOJ and the judiciary to develop proposals over the next 12 months…

  • We … will capture feedback and requests for data from other stakeholders through the new open and shared data governance mechanism…

  • We … are in the process of standing up a full data access secretariat…

  • We … have already started to test the proposed approach to data governance…

As so often, though, the real problem seems to be money. Buried away in the response to recommendation 19 is a reference to a data access panel. This, we are told,

will be fully resourced with a combination of HMCTS and research funding resources 

The phrase “research funding resources” refers to money from one of the funds that supports academic research. As the response to recommendation 15 confirms, the Ministry of Justice “has received funding from ADR UK for an ambitious data linking programme called ‘Data First’.” Administrative Data Research UK is supported, in turn, by the Economic and Social Research Council.

You can see why HMCTS is passing round the begging bowl, but shouldn’t it allocate some of its £1bn to research on which the success of the reform programme depends?

Byrom said today was a “pivotal moment” for the government to fully embrace – and fully fund —  a data strategy that will deliver digital justice for all:

Over a year on from delivering my report to HMCTS, I welcome its acceptance of my recommendations. I urge the government to now put words into action. There is no better moment than now to step up the implementation of those recommendations. Otherwise, we will waste the opportunity to make the UK a world leader in delivering digital justice for all.

In her view, the success of the reform programme depended on building in data collection at the outset — rather than “wastefully retrofitting it as an after-thought”.

Matthew Smerdon, chief executive of the Legal Education Foundation, said:

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. In our view, COVID-19 cannot be an excuse. Rather, the impact of the pandemic on the court service has shone a spotlight on why it is more important than ever to improve the quality of data collection to enable the digital transformation of the court service.

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.

HMCTS said today that it had begun to implement many of Byrom’s recommendations. Kevin Sadler, acting chief executive, said he was pleased that HMCTS had been able to make “specific commitments about the timeframes for many of these crucial areas”.

For “those areas in which the timeframe has in part been impacted by the COVID-19 pandemic,” he added, HMCTS was “committed to delivering them as quickly as possible whilst working within the current constraints”.

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