Era of judge-led reform is over, says Ryder as he warns against “privatisation” of justice

Ryder: We cannot lead reform as an exercise in the ad hoc

Reform of the legal system based on the views of a single or group of judges is “no longer acceptable”, the Senior President of Tribunals has said.

Sir Ernest Ryder also warned against “privatising” justice by allowing companies to promote their own online dispute resolution outside of the law’s control.

Sir Ernest praised Lord Justice Briggs for his “excellent” report on modernising the civil courts but said he was “perhaps the last judge” to carry out a review of the “historic type”.

He did not mention Lord Justice Jackson’s reviews, or his own review of the family justice system in 2012.

Delivering a lecture on open justice at the Max Planck Institute in Luxembourg, Sir Ernest said that in the past reform had been “the province” of Royal Commissions or individual judges.

He said that while some initiatives had been based on evidence, others had not and while some reforms had succeeded, others had not.

“We are now in a world where such an approach is, quite simply, no longer acceptable.

“Reform based on the views of a single judge or group of judges, based on anecdote or impression, or even on a certain amount of evidence drawn from willing parties can no longer be the way we approach the matter.

“Judges, while adept at researching the law, are not by and large trained in the skills of empirical, scientific research. They are not well-versed in dispute systems design.

“They do not necessarily understand or appreciate the connections, or potential connections between the courts, the legal profession, Ombuds schemes and so on. They are not necessarily at home in the digital world, in terms of design and implementation.”

He said the judiciary must also “support, promote and commission research”, as it took a “more considered approach” to reform.

“We cannot lead reform as an exercise in the ad hoc. In order to understand, to design and to test reform we must, it seems to me, engage far more than we have in the past with academia, with management experts, digital experts, with the professions, regulators, Ombuds and wider society.

“Reform must be based on proper research; robust and tested. It must consider the latest design techniques.”

Sir Ernest suggested that, at a time of having to make more policy decisions, the judiciary’s leadership could be expanded to include “representatives of the legal profession and civil society”.

“The benefits of non-executive directors are well-recognised in government, just as they are in business. Ought we not to consider drawing on those benefits to improve our governance, and through this form of engagement with wider society our accessibility?”

Sir Ernest said judges were not trained in leadership and management, but could benefit from “the latest management techniques” and proper training, particularly on the “digital world”.

The wide-ranging speech highlighted the “staggering” number of disputes being resolved online by private dispute resolution services, such as those used by eBay and Amazon.

He said that it was one thing to accept that there was a public interest in the promotion of settlement, another to accept that such disputes “are not, or could not be made, capable of” being brought before the courts.

“To accept the second proposition is to accept that we are moving towards a society where there are digital outlaws; individuals and businesses whose disputes are outside the law’s protection and control.

“We would, thereby improperly accept, that dispute resolution should be outsourced by the state to algorithms designed to the specifications of private actors.”

Sir Ernest said this would be “acquiescing in the privatisation of justice”.

However, he said digital justice provided an opportunity for the courts to adopt one of the features of online dispute resolution that had made it so successful – effective feedback.

He said the creation of “feedback loops” – for example between the justice system, ombudsman schemes and regulatory bodies – could “bring to light, and public scrutiny, widespread systematic problems” in particular areas.

“It will lay open to public scrutiny systemic weaknesses in the rule of law; providing an enhanced means to promote public debate, to highlight how and where public values instantiated in law are not being developed as parliament intended: to provide observational justice.

“It will thus increase the ability of courts and tribunals to promote the rule of law. The creation of such feedback loops is an implicit aspiration of our civil court reforms. It is equally something that I am pursuing for the digitisation of the UK’s tribunals.

“We have an opportunity to broaden and deepen our commitment to open justice through digitisation; we cannot let this unique opportunity slip through our fingers.”

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