July 2021

The Legal Education Foundation (TLEF) today welcomed calls by Parliament’s Justice Select Committee for urgent reform of legal aid in order to ensure fairness in the justice system and improve access to justice for those who are vulnerable. The Committee’s report, to which TLEF provided written and oral evidence, recommends systemic changes to both the criminal and civil legal aid systems. One area the Committee raised concerns about was the significant rise in recent years of litigants in person and the impact of this increase on court capacity and access to justice. The Committee expressed disappointment with the Ministry of Justice’s approach to gathering data on access to justice and suggested the data it did hold may not adequately capture the impact of litigants in person on courts’ time. TLEF’s director of research, Dr Natalie Byrom who authored the Foundation’s 2019 Report, ‘Digital Justice: HMCTS data strategy and delivering access to justice’ said:

“The Committee is right to highlight the impact of the rising numbers of litigants in person and to call for greater support. One of the key aims of the HMCTS Court Reform Programme was to improve access to justice. The programme cannot achieve this aim unless new systems collect better data about litigants in person- both to understand their needs and design effective policy to meet them. Better data is also crucial to model the impact of litigants in person on the court system and the backlog. This data is needed urgently to allow the MoJ to make the business case to Treasury for additional funding for legal advice and representation.”

TLEF response argues for the need for the Law Commission to develop positive regulatory and legislative solutions to govern the use of automated and assisted decision-making systems by public sector bodies.  The Legal Education Foundation has today published a response to the Law Commission's consultation on its 14th programme of law reform. The response offers strong support for the Law Commission's proposal to develop a new legal framework to support the use of automated decision-making by public sector bodies. You can read the full response here. Since 2018, TLEF has developed a focus on the public and human rights law implications of the increasing use of automated and assisted decision-making technologies (“ADM/ASDM”) by public bodies. We have funded organisations working in the access to justice space to develop work to understand and respond to the challenges presented by the rapid expansion in the use of these tools in areas such as welfare benefits and immigration. We have also funded experts in equality law to examine the issues raised by particular uses of automated and assisted decision making in the public sector. In developing our response, we convened a technical legal workshop and commissioned new research from experts Professor Lilian Edwards, Professor Rebecca Williams and Reuben Binns.

Automated Decision Making (“ADM”) and Assisted Decision Making (“ASDM”) systems are widely used to support decision making across the public sector. When deployed appropriately and lawfully, the adoption of these technologies offers the potential to improve the speed and consistency of decision-making whilst generating significant savings for the taxpayer. However, recent experiences in immigration, policing, welfare and education have highlighted the risks and limitations associated with the use of ADM/ADSM systems. These risks, if unaddressed, can undermine rights, damage trust in public sector bodies and generate costly litigation. Dr Natalie Byrom, TLEF Director of Research

TLEF's response argues that existing legal frameworks are complex, piecemeal and provide insufficient clarity about whether, when or how ADM/ASDM systems can lawfully be deployed by public bodies.

Existing law creates uncertainty and increases the risk that ADM/ASDM systems will be deployed inappropriately, with deleterious consequences for individuals, public bodies and the taxpayer. Mechanisms for seeking redress are both complex and expensive to access, and the actual redress available limited. Dr Natalie Byrom, TLEF Director of Research

TLEF's response argues that to develop effective solutions, The Law Commission should examine and learn from national international approaches to regulating public sector use of ADM/ASDM systems. In identifying models of best practice on which to base the Law Commission’s approach, primacy should be given to those frameworks that can be demonstrated to:

• Address both ADM and ASDM systems
• Ensure that ADM/ASDM systems uphold existing equalities and human rights law
• Secure meaningful and effective transparency in relation to the use of ADM/ASDM systems e.g. via public registers
• Deliver certainty for public bodies, suppliers and individuals around the circumstances in which ADM and ASDM systems can be used;
• Support meaningful public engagement in determining appropriate uses of ADM/ASDM
• Focus governance at the design and deployment stage
• Are capable of managing and responding to contextual complexity
• Introduce independent external scrutiny to ensure the efficacy and accuracy of ADM/ASDM systems
• Ensure clear lines of accountability for decisions taken by ADM/ASDM systems, and secure legally enforceable rights to an explanation.
• Provide timely, appropriate, accessible and cost-effective routes to redress where this is required.

The Law Commission's consultation closes on 31st July. You can read more about the consultation and submit your own response here

Further reading

The Legal Education Foundation's response to the Law Commission's consultation can be found here. The workshop report: "Reforming the law around the use of automated and assisted decision making by public bodies" can be found here Research conducted by Professor Edwards, Professor Williams and Mr Binns: "Legal and regulatory frameworks governing the use of automated and assisted decision making by public bodies" can be found here The Legal Education Foundation's summary of: "Legal and regulatory frameworks governing the use of automated and assisted decision making by public bodies" can be found here.

Report by Dr. Judith Townend and Dr. Cassandra Wiener explores international approaches to defining, managing, and sharing justice system data and considers the impact of these approaches on judicial independence, innovation, and public understanding of and confidence in the justice system. The grant-giving charity The Legal Education Foundation has today published research that analyses the way in which ‘justice system data’- data generated by the operation of the courts and tribunals – is managed and shared in three countries: Australia, Canada, and Ireland. The research: “Justice system data: A comparative study” was commissioned to inform the development of policy and practice in England and Wales and support the newly created HMCTS Senior Data Governance Panel. Findings from the research reveal critical gaps in the evidence needed to develop data-sharing practices that enhance trust in and access to the justice system.

“Sharing data generated by the operation of the courts and tribunals can play a critical role in delivering open justice, improving public understanding, supporting evidence-based policy making and catalysing new legal service models. The digitisation of justice systems in England and Wales and worldwide provides the catalyst and infrastructure to fundamentally rethink the way data about the justice system is collected, stored, and shared. It also forces us to confront the tensions between open justice and privacy, which have historically been managed by the effort and expense involved in accessing information from paper- based systems.  We commissioned Dr Townend to help us understand what England and Wales might learn from data sharing practices in other common-law jurisdictions” Dr. Natalie Byrom, Director of Research

The research was conducted from May-August 2020 via literature review and interviews with 40 key individuals across the jurisdictions. Interviewees came from a range of different professional backgrounds, including academia, court services, legal technology, and access to justice organisations. The literature review included academic and policy materials as well as court service and legal information websites. The authors considered both higher and lower courts in regional and federal jurisdictions and examined the principles and practices of existing systems.

“Contemporary justice systems are complex and messy as a result of anachronistic structures and rules that have evolved since the medieval period. Inevitably, this means ‘justice system data’ – that is the information generated by the process of justice – is equally complex and messy, with a hybrid of policies and laws governing its collection, storage and dissemination. Across the three jurisdictions, we found a lacuna in terms of policies for access to justice system data, and a complex web of legal and ethical arrangements between a variety of justice system actors.” Dr. Judith Townend, report author 

The research found that whilst there is a common understanding across the jurisdictions of the nature and importance of justice system data, policies and processes for managing and sharing data have not been purposively designed. In opening up justice data, challenges and tensions across the jurisdictions were also exposed: the impact of legacy practices; the under-investment in and a decentralised approach to technological reform; a data deficit for user and case experience; a tension between privacy and transparency in the provision of court records containing personal data; and a lack of accountability measures to ensure the effective management of justice system data.

“There is a need for clear, public policies setting out the differing roles of the executive, court service, judiciary and third-party providers in managing justice system data. These policies should include robust accountability mechanisms, including appropriate routes of application and appeal for accessing justice data that is not already in the public domain. Sustained and meaningful engagement with court-users and the public in developing these processes is required” Dr. Judith Townend, report author

The findings and their implications will be discussed at a free public launch event today chaired by Joshua Rozenberg QC. Registration is still open and tickets can be accessed here. Read the report Copies of “Justice system data: a comparative study” can be accessed here A summary of the key findings and recommendations can be accessed here Report author Dr. Judith Townend has written a guest blog for TLEF launching the research which can be accessed here. All documents and accompanying materials, including a supporting spreadsheet and reference library can be accessed from the report page here.  For more information contact TLEF Director of Research Dr. Natalie Byrom: natalie.byrom@theLEF.org