Law for Life (incorporating Advicenow) Summary of the Justice Select committee Inquiry into the HMCTS Reform Reporting 31 October 2019

The following summary provides an overview of the inquiry by the Justice Select Committee to which Law for Life provided evidence:

Serious concerns exist about the effect on access to justice and its efficient despatch of the current court and tribunal modernisation programme, led by the Ministry of Justice and the senior judiciary of England and Wales.

Courts service modernisation, including use of better IT to be more efficient, is long- overdue. But we have found that poor digital skills, limited access to technology and low levels of literacy and legal knowledge raise barriers against access to new services provided by digital means. The HM Courts and Tribunals Service (HMCTS) has not taken sufficient steps to address the needs of vulnerable users, who lack adequate legal advice and support. Face-to-face support is essential. We recommend that by April 2021 the network of assisted digital Online Centres be extended to deliver comprehensive national coverage with walk-in access.

We received powerful evidence of a court system in administrative chaos, with serious staff shortages threatening to compromise the fairness of proceedings. HMCTS must not proceed with planned much deeper staffing cuts unless it is confident of being able to provide acceptable service. We are concerned about delays, for example in processing divorce petitions, and we call on HMCTS to publish ambitious targets for divorce completion times.

Between 2010 and 2018, half of magistrates’ courts closed, along with more than one third of county courts. These closures have created alarming difficulties for many court users, who are now expected to travel too far to attend court and to spend too many hours of their days or weeks in doing so. There should be no further court closures without robust independent analysis of the effects of closures already implemented. We recommended earlier this year that HMCTS urgently establish more supplementary venues (such as pop-up courts in non-traditional courts buildings), and these should be established in every area where there has been a court closure in the past 10 years.

Existing court buildings are dilapidated and sometimes lack the basics, such as facilities for disabled users. This is unacceptable and must be addressed. The interests of justice are not served by unreliable video equipment and WiFi facilities throughout the criminal courts estate; HMCTS must expedite planned investment upgrading these. There is not enough research on the impact on justice outcomes of video hearings and video links in the UK; the MoJ should commission this. Existing access to online justice processes only via the gov.uk website should be discontinued and replaced without delay.

Open justice—that is, the public resolution of criminal and civil disputes—must not fall by the wayside. HMCTS should, in consultation with the senior judiciary, develop technological solutions to support open justice. We recommend that the senior judiciary convene a working group to consider how to protect and enhance media access to proceedings. The Government should commit to piloting public legal education within its action plan for legal support, with a view to rolling out a national programme by 2022.

HMCTS has struggled to explain its vision for the reform programme, and needs to be more rigorous in engaging with and responding to stakeholders. The MoJ should also do more to evaluate the reforms, especially their impact on vulnerable and excluded groups.

Legal capability

51.Many witnesses mentioned the importance of legal capability, which Law for Life described as having three broad elements: knowledge, skills and confidence. The Bingham Centre saw legal capability as linked to equal access to justice, a key principle of the rule of law. According to the Law Centres Network, legal capability helps litigants “to assess their options and prospects and competently to conduct themselves against a legal adversary who is likely to be represented.” The distinction between digital capability and legal capability was highlighted in a research report by Catrina Denvir commissioned by the Civil Justice Council. She concluded that users undertake a range of activities online, but this is not to say that they have the capability to undertake legal processes online. Both digital capability and legal capability are likely to be needed to successfully navigate an online court.

52.Research based on data from the 2010 and 2012 waves of the English and Welsh Civil and Social Justice Panel Survey (CSJPS) explored areas of legal capability including public understanding of law and legal services and how these relate to people’s experience of legal problems. The report described a “substantial knowledge deficit” in the public’s understanding of the law, and evidence that erroneous beliefs about the law are likely to prove stubborn to dislodge.

53.Lisa Wintersteiger, Chief Executive of Law for Life, told us about barriers that those with low legal capability might experience when using online justice systems without legal advice:

We know that there is an enormous problem around legal information for the public. There are very low levels of legal capability in the public realm. People are now being asked to access an increasingly digital-by-default system with very low capacity and no access to lawyers, and are expected to navigate that system.

She explained that legal capability ranged from having very basic knowledge of rights and procedures, through to knowing whether one could submit evidence or speak in court, and illustrated this point by stating that “lots of people do not understand that there is a civil justice system at all ….. [T]he vast majority of people would not know if there had been a breach of contract”.

54.The Senior President of Tribunals, Sir Ernest Ryder, accepted that there were “serious issues relating to legal capability”, an issue that the judiciary had to deal with daily to ensure access to justice for vulnerable users. He confirmed the judiciary’s commitment to reforming process and language for the benefit of ordinary users: “[y]ou change that process first, before you digitise it, as otherwise you end up ossifying a poor, ancient service that is not usable at the moment by litigants.”

55.According to Lisa Wintersteiger, a wide range of support was required to address low legal capability; people might need somebody to sit alongside them and help them perform a basic task or more substantive assistance with a critically important life decision such as an application for divorce involving a financial settlement and arrangements for children. A similar view was expressed by Jodie Blackstock, from JUSTICE, who thought that two things had to be provided: online guidance integrated into online forms “to give people their own legal capability to understand the process”, and legal assistance, whether from an advice agency or a solicitor. This raised the question of how signposting to advice would be built into online systems.

56.The role of legal advice in supporting users’ access to digital processes was emphasised by many witnesses, coupled with concerns about shortfalls in advice provision since legal aid changes were introduced by the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012. The then Secretary of State, Rt Hon David Gauke MP, accepted the importance of identifying the best way of signposting users to access the legal advice they need, and said that his Department was working with the advice sector to develop its signposting approach.

Public legal education

57.Public legal education has been defined as providing people with awareness, knowledge and understanding of rights and legal issues, together with the confidence and skills they need to deal with disputes and gain access to justice. It also helps people recognise when they may need support, what sort of advice is available, and how to go about getting it.

58.The role of public legal education in supporting access to his proposed Online Court online was recognised by Lord Justice Briggs in his 2016 report on the structure of civil courts. He considered it would be “quite wrong” to think that support for users should be limited to online assistance and assisted digital services; in his view, the success of the new online court in extending access to justice would depend on progress being made with public legal education. He went on to suggest that reductions in the scope of legal aid had had a negative impact, because private lawyers were no longer able to provide legal education for those unable to afford it:

It is not therefore surprising that, now that Legal Aid has largely been withdrawn in relation to civil litigation, we are generally less well advanced in the provision of public legal education than some countries where there has never been Legal Aid at a comparable level.

59.Support for public legal education also came from Law for Life among other witnesses. Research by its Advicenow project concluded that litigants in person needed to adopt attitudes such as objectivity and confidence and required information, to help them:

• understand the role of the court, and understand and follow process, legal language and the law;
• apply the law to their case and evaluate it;
• identify, obtain and fill in the correct form;
• develop skills, for example, preparing, filing and serving documents, engaging and negotiating with the other side, and speaking succinctly and confidently in court;
• know where to get more help and support.

60.The Ministry of Justice action plan for legal support, published alongside the Post-Implementation Review of the LASPO Act 2012, recognises the role of legal information within the spectrum of legal support services, especially at the early stages of a legal problem. However, this appears to refer to providing information about specific legal problems rather than building a broader knowledge and understanding of legal rights and supporting legal confidence and skills. While the Government has committed to undertaking a pilot to explore how legal support can be better co-ordinated and signposted, its action plan does not specifically mention public legal education, or acknowledge any shortfall in the skills and attitudes that, according to our evidence, underpin legal literacy.

61.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.