Briggs LJ: “less sureness of touch” on first stage of OC
The online court (OC) should be trialled alongside physical courts for five to 10 years because so many people will be excluded – some one in five according to government figures – from accessing digital-only services, according to a leading researcher.
Meanwhile, he argued that using fees to deter people from using the courts was a “constitutional monstrosity”.
In the most recent quarterly update to his report on the digital delivery of legal services to people on low incomes, Professor Roger Smith drilled down into Lord Justice Briggs’ proposals [1] and warned that failing to ensure a long run-in period for the OC risked “gambling” with access to justice.
He concluded that Briggs LJ lost some of his “sureness of touch” when dealing with the opening stage of the OC system – when users would identify legal problems and start to act on them.
He said the Ministry of Justice had to understand that “this will cost them money” and the implementation team at the Courts Service “should humble itself sufficiently” to follow the lead of the advice agencies on how to go about it.
He continued that court closures should not prevent “reasonable physical access”, adding: “There should be a minimum dual running period of five to ten years… We should not gamble with what is fundamentally a constitutional right of access to justice.”
He went on: “There is plenty of evidence to justify piloting an online small claims court but none to suggest that it is safe to remove or inhibit physical access to courts with traditional written procedures in the absence of an explicit policy to exclude the poor from the court process.”
Professor Smith accepted that an OC could increase access to justice in an age of public austerity, but added: “The level to which court [fees] have risen is… perhaps understandable: that does not make it acceptable.
“To the extent that some charges are now said to be designed to make a ‘profit’ is a scandal and the extent that others, such as those for employment tribunals, are designed to deter use of public provision is a constitutional monstrosity.”
Returning to the question of ‘digital exclusion’, the solicitor highlighted that in September 2016 the MoJ paper on transforming justice [2] had estimated that while 30% of people had the skills to use digital services unaided, 52% needed some assistance and 18% could not or would not engage digitally at all.
He said: “These figures are striking enough. The government is accepting that one-fifth of the population ‘cannot or choose not to engage digitally at all’. The majority of the population ‘need some help’ and only just under a third are likely to be fully capable.”
Another source – a House of Commons report [3] in June – estimated the proportion of digitally excluded at 23% of the population (12.6m people). Of these, 49% were disabled, 63% were over 75 and 60% had no formal educational qualifications.
These figures, said Professor Smith, implied that “mandatory use of online procedures… would, at this moment, be premature. 13 million adults – disproportionately poor, elderly, female and on low incomes – have insufficient digital skills”.