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December 8, 2018

David and Goliath or cat and mouse? Getting information on digital court reform out of the Ministry of Justice

I must be the bane of the Ministry of Justice with my endless FOIs (freedom of information requests). But asking nicely doesn’t always work. In 2016 I was told that a report on unrepresented defendants in the Crown Court would definitely be published. I emailed several times for a year, and kept being told that it would be signed off for publication any day. In the end I lost patience, discussed it with Lord Beecham and his parliamentary question about it prompted the real answer – that the government had no intention of the publishing the report. At which point I resorted to FOI and, eventually, they released the summary report, while a secret longer document was leaked to Emily Dugan. It was a slightly pyrrhic victory since neither this report nor Transform Justice’s own report on unrepresented defendants have led to any policy analysis, let alone policy change, on this important subject. And we still have no data on the proportion of defendants in magistrates’ courts who are unrepresented.

The department never promised they would publish another report I spent two years trying to obtain – I always knew it would only come out via FOI. I heard in 2016 that the mighty Boston Consulting Group (a management consultancy) had done a negative report on the digital court reform programme. At that stage, the outlines of the programme had been developed by the courts service and the Judiciary. The Ministry of Justice were slightly sceptical, and the Boston Consulting Group was commissioned to assess the viability of the project, in particular by comparing it to other countries which had tried similar things.

I first requested publication of the report in September 2016. The request was initially ignored then batted away. The report did exist, but in May 2017 I was told “the information is exempt from disclosure under section 35 of the FOIA. We are not obliged to provide information if it relates to the formulation of government policy”. This reason didn’t really wash, since the policy had by that time been agreed and they had tabled legislation. I gave up as I often do, but decided to try again a year later when the National Audit Office alluded to the BCG report in their damning assessment of the progress of the digital court reform programme: “HMCTS’s change portfolio presents a very significant challenge. In 2016, HMCTS commissioned a review which found that the changes it is proposing are far broader than those in comparable programmes in other countries”. It seemed absurd that a report, that raised concerns, was being referred to in a public document, yet was not in the public domain.

I put in another FOI request on the basis that it was now three years since the policy on digital court reform had been agreed, and therefore the report could not possibly still be actively in use for policy development. But I was eventually told: “Whilst it was recognised there may be merit in the release of the information leading to a greater understanding of the decision-making process, the wider consideration favoured withholding the information due to the continuing implementation period of the Reform Programme and the potential misunderstanding of changes if information were to be released at this stage”. So I appealed to the information commissioners’ office and the ICO took on the case in July.

Out of the blue a few weeks ago I received an email with the report attached. The department said that Section 35 of the FOI Act was still relevant but that they were releasing the report given: “Time has passed since the Boston Consultancy review, which has enabled major changes to how the program operates and as such much of the information within the review has less relevance to how the program now operates”.

What happened next presumably reflects the frustration of someone in the Ministry of Justice/the courts service, that I had pressured them to release the report. Normally when the department releases something to a private individual via FOI, it is not published by them for a couple of months. But only days after receiving the email, while I was still mulling the meaning of the document, I opened my (excellent) daily Law Gazette email to find an article about the BCG report which made no mention of Transform Justice or the two years I had spent trying to get it. In transpired that the Ministry of Justice had given the report exclusively to journalist Monidipa Fouzder the day after releasing it to me.  They told her that they were giving it exclusively to her because someone had FOIed it, without telling her who.

How can I complain? I had the report and the Ministry of Justice had every right to give it to anyone. But why did they give it exclusively to one journalist rather than releasing it to all, or publishing it on their website? Why didn’t they tell the Law Gazette that I had FOIed it?

What I do know now is why the department didn’t want to publish the report. The Law Gazette article summarises the most worrying aspects well. In management consultant speak it says

  • this project is incredibly risky
  • no other country has done this scale of digital court reform in this timescale – reforms “will surpass what might be considered best practice among leading overseas jurisdictions today”
  • the Ministry of Justice is not at all convinced that the project is a good idea (while the courts service is convinced it is). The report refers to a lack of trust and co-operation between the Ministry of Justice and the courts service.
  • The programme seems to be aimed at saving money rather than enhancing justice: “reforms are framed around efficiency and proportionality not policy or broader social benefits”
  • there is a paucity of data to really understand the system’s users. Thus all the modelling may be wrong.

The report concludes that the programme should be radically remodelled: ‘By comparison to other reforms, the level of ambition is very high, especially for a four-year programme. Operating under the existing governance structures and state of relationships, the programme will not succeed.’. The rest is history. The cost has risen £79 million from the £737 million quoted in the BCG report and the department are going full steam ahead with the programme despite criticism from the Public Accounts Committee and stakeholders. As foretold by the report, the timing of the project has slipped considerably.

HMCTS claims that all the risks cited in this report have been mitigated, but I’m not convinced.  They have spent £30 million on PWC management consultants to help them with change management but

  • It is still not clear what the key aims of the programme are – whether it is still money saving or “broader social benefits”. Bar making justice more convenient for some, how will it improve access to justice?
  • The data on court users is still lacking and it looks as if initial estimates of digital uptake (despite the protestations of Richard Susskind recently) were way too optimistic.
  • The reformed services are being tested with court users but the process is not as recommended by BCG. Instead of starting with users and their needs, the researchers have started with the new products, and then asked whether they fit user need. I went to an HMCTS roadshow the other week where I met a researcher who was gathering user feedback on a particular video screen to be used in civil hearings. He wasn’t asking whether users wanted to use video for civil hearings but whether they liked that screen.

Everything in this project has been done backwards. HMCTS sought capital funding from the Treasury for a set of digital solutions, to a problem that had not been subject to rigorous analysis and about which there was no data. The Treasury bought the shiny proposal and offered the funding. Then the Ministry of Justice commissioned BCG to review whether it was a good idea. Then HMCTS and the Ministry of Justice decided to go ahead with the project despite significant misgivings expressed in the report. Then HMCTS designed digital services, and decided to close many courts, despite not having any data on court users and how users behaved in court hearings. I’m usually quite negative about management consultants but in the case of BCG’s 2016 report, I think it was pretty prescient.

NB The appendix of the BCG report was redacted in the version I received. This included the sources of information used for the International benchmarking. This was apparently commercially confidential, which is slightly surprising, given the International projects cited are all public sector projects.