In June 2018, JUSTICE published its Working Party report, Preventing Digital Exclusion from Online Justice (“PDE”). The background to the Working Party was the ambitious £1.6 billion Reform Programme launched by HMCTS in 2016, aimed at reforming the justice system so that cases are increasingly resolved online. JUSTICE supported the Reform Programme, on the basis that pre-existing court processes were disproportionately expensive, publicly funded legal aid had largely disappeared, procedure was complex and inaccessible and the court estate had become dilapidated and ill-fit for purpose. Having said that, JUSTICE was and is particularly alive to concerns around digital competence and practical impediments to access to what the Working Party coined “online justice services”. In PDE, the Working Party considered measured that ought to be adopted to ensure the Reform Programme was accessible to all; specifically, how access to justice could be guaranteed for people who are “digitally excluded” as more and more court processes were migrated online. The report made recommendations across three broad themes:
- Digitally excluded cohorts;
- Technology and design; and
- Cross-cutting issues
We have spent the last year engaging with HMCTS and Government more broadly on the implementation of recommendations from PDE.
Digitally excluded cohorts
The Working Party considered particular obstacles for people engaging with “online justice services”, identifying geography, vulnerability, age, homelessness and detention all as obstacles to access. To guarantee uptake of online justice services, the report recommended HMCTS provide “Assisted Digital”, the technical support service the Government proposes to accompany online justice services, in locations likely to be accessed by digitally excluded populations; “trusted places” such as community organisations and libraries. To promote the efficacy of Assisted Digital, the Working Party proposed that HMCTS exploit the potential of its “multi-channel” approach and pay particular attention to how the service operates in geographically remote regions, recommending that data on how people use the service, and online justice services more generally, inform the reform agenda.
We have sought to implement these recommendations in various ways. Over the past year, we have fed recommendations from the Working Party into the Litigants in Person Engagement Group (“LIPEG”) and held a number of meetings with HMCTS around the recommendations from PDE. We made written submissions to the Justice Committee inquiry into the access to justice implications of the HMCTS Reform Programme and our Legal Director, Jodie Blackstock, gave evidence to the Committee in June.
We are concerned at how few people are accessing technical support for online justice services, and we continue to emphasise that the efficacy and uptake of HMCTS Assisted Digital support services must be tested in remote areas. HMCTS is now testing Assisted Digital at sites including Doncaster, Sunderland and South Shields and is currently in the process of reviewing the Assisted Digital contract. We understand that Assisted Digital provision is likely to be expanded in the coming months to capture a number of smaller and more remote communities. We have made representations to HMCTS on the need to adopt tailored approaches to those particular cohorts we identified above, and over the next six months we will be engaging with civil society and NGOs around approaches needed to ensure particularly vulnerable and excluded cohorts have access to online justice services.
Technology and design
The Working Party also considered how design and future proofing could guarantee the uptake of online justice services and promote access to justice. While many prospective court users may not own a laptop, or have immediate access to a desktop computer, a significant portion of the population owns a smartphone, with around a quarter of all adults being solely reliant on devices other than computers to go online. The ubiquity of smartphone usage was cited in support of the recommendation that HMCTS provide intuitive and design friendly mobile applications for accessing justice services.
The report also stressed the importance of design in promoting accessibility. Design features such as allowing progress to be saved, enabling visually impaired users to enlarge fonts, eschewing cluttered screens for the use of white space and avoiding the need to repetitively input information was all proposed as potentially useful features for digitally excluded users. We have been pleased to see that newer iterations of the Online Civil Money Claims and the pilot for the online Social Security and Child Support (“SSCS”) Tribunal have taken on board a number of those recommendations, eschewing text heavy pages in favour of uncluttered, easy to read pages, with progress able to be saved. Intuitive design would also feature “signposting” at an early stage of a digital process, directing users to authoritative sources of legal advice and information, such as Citizen’s Advice and Advicenow. HMCTS has dedicated a team to look at the way in which signposting from online justice services is working, and we have been pleased to see that newer iterations of services like “Make a plea online” feature improved and intuitive signposting to legal advice.
The Working Party also emphasised the importance of the Online Civil Money Claims and any future online courts and tribunals having websites that depict their constitutional independence from government. The websites of the UK Supreme Court and Courts and Tribunals Judiciary both feature unique design distinct from the “gov.uk” style and were cited as illustrative examples of design that makes clear to those foreign to the system that those bodies are distinct and independent of government. In June, we produced a paper on the constitutional independence of the online courts for the HMCTS design team responsible for the SSCS Tribunal continuous online resolution pilot. As a result of our advocacy, the logo for that service has been changed, though the overall design of the page otherwise remains indistinguishable from “gov.uk” branding. We are advocating for the design to more fully reflect the independence of the service, and as a result of recent intervention by the judiciary, we expect to see online justice services featuring a wholly distinct design from “gov.uk” in the coming months.
The Working Party also recommended that to the extent practicable, Assisted Digital should be co-located with legal advice provision. A 2016 Civil Justice Council report emphasised that people using the online courts were likely to need both technical and legal assistance, a theme picked up by the JUSTICE Working Party. HMCTS’s own data demonstrates that the uptake of Assisted Digital has been extremely low, which we expect is a consequence of Assisted Digital generally being disaggregated from advice provision. Assisted Digital needs to be co-located with advice provision and we understand that some of the new Assisted Digital pilot areas will feature co-location.
Finally, the Working Party recommended that Government and HMCTS investigate how to replicate pre-existing sources of help in the physical courtroom into a virtual environment, such as a virtual duty solicitor scheme. In March, we provided HMCTS with an Online Advice Platform concept note, which proposed a platform for court users to access remotely delivered advice and set out principles around how online advice provision within the Reform Programme could be organised. We will be holding a roundtable with Government, the advice sector and members of the profession in the coming month to advance thinking on the concept.
Digitisation of the courts represents a unique opportunity to simplify court processes and promote access to justice, but it must not come at the expense of the most vulnerable users of court services. HMCTS has been responsive to PDE and, as outlined above, has engaged positively with JUSTICE in response to the recommendations. There have been encouraging developments in response to a number of the recommendations from the report, but more work needs to be done, particularly with respect to Assisted Digital.
If you have any questions about Preventing Digital Exclusion, please contact our Civil Lawyer, Andrea Fraser, at firstname.lastname@example.org