12
Examination of witness
Dr Natalie Byrom.
Q40 The Chair: Good morning. This is the House of Lords Constitution Committee. We are conducting an inquiry into the constitutional impact of Covid-19. Dr Byrom, may I welcome you to the Committee? You are director of research and learning at the Legal Education Foundation, and you have been doing some work on the impact of Covid-19. Would you start by telling us the main findings of your research so far? It is very early days in some respects, but could you explain how you went about conducting the kind of work you have been doing on this very tight timescale? Perhaps you could start with a general introduction of that nature.
Dr Natalie Byrom: I should like to thank the Committee for having me here today and for your interest in this issue. It is important to say that the research that I have been doing was a project of the Civil Justice Council. This is important because it meant that while I was lead researcher, I was supported by an expert working group comprising judges, academics, court administrators and civil society representatives, drawn from around the globe. The findings of the research, which was published on Friday, have been reviewed by the Civil Justice Council, which is chaired by the Master of the Rolls, Sir Terence Etherton, prior to publication.
The remit of this review was to understand the impact of Covid-19 arrangements on court users, to make practical recommendations to address these issues over the short to medium term, and to inform thinking about a longer-term review of the impact of Covid on court users in the civil justice system.
The rapid review was conducted over two weeks. There were several approaches to capturing data. We conducted a literature review of published articles. We conducted an online survey of court users who had participated in a remote hearing, which received over 1,000 responses. We captured data on over 480 remote hearings. We held a remote consultation meeting. We invited people to submit collective responses to a consultation email address, and we received 66 of those.
In the absence of data from the Courts Service on the hearings which have taken place, we attempted to contextualise our findings by analysing the listings data for one week in May, to try to get a national picture of what was happening in the civil justice system.
While the approach that we have used means that our findings are not generalisable to the wider population of court users, this is the largest study of fully remote hearings in civil justice that has been conducted anywhere in the world. It is 60 times larger than the next most recent study of remote hearings, which was conducted by HMCTS in support of the reform programme.
To move on to the main findings, respondents were very keen to praise judges and court staff for the tremendous efforts they had made to keep the justice system moving, which contrasts favourably with international jurisdictions. However, we heard that we are talking about not one but two justice systems. The senior courts, which are better supported and resourced, have been much better able to adapt to arrangements under Covid. The county and district courts, which deal with the majority of cases, and those litigants who are most vulnerable, have had a more difficult time. There is a different story again in the business and property courts. Lots of respondents from large commercial firms were really keen to state that they were very impressed with the way arrangements had operated, and that gives us an opportunity to think about how we might deploy technology in large commercial cases.
The key findings from the review from your perspective are that we heard about restrictions on the availability of legal advice and a high rate of adjournment of cases, concerns about an unquantified backlog of cases, and a bubble of demand for when hearings resume.
We heard that the majority of lawyers were satisfied with their experience of remote hearings, but satisfaction declined the more recently hearings had been conducted, which perhaps suggests people are becoming less generous in their assessment of remote hearings over time. When asked to compare both video and audio hearings with hearings in person, the majority of respondents felt they were worse overall and less effective in terms of facilitating participation. It was also generally reported that remote hearings were more tiring to participate in. People were also more equivocal than might be expected about the impact of remote hearings on costs. People did not feel, unequivocally, that participating in them remotely made hearings cheaper. That matters a lot in the context of the ongoing programme of reform.
One of the striking findings was that nearly half of all hearings in our sample were beset by technical difficulties. This really matters because it drastically affects people’s perceptions of the fairness of the hearing that they have partaken in. It also really matters because the sample of hearings that we captured data on are not the “business as usual” hearings of the civil justice system. Our sample was overrepresented in terms of hearings which took place in the higher courts and, because of policy decisions taken around the staying of possession hearings, and altered behaviour on the part of claimant companies such as debt companies, we are reporting on a civil justice system at a point where those cases involving the most vulnerable and litigants in person were not taking place. If there are findings that suggest that nearly half of hearings experience technical difficulties when we are talking about a very capable and well-resourced client group, that poses real questions and concerns when we are talking about reintroducing cases involving more litigants in person.
The findings suggest tentative support for reserving remote hearings for matters where the outcome is less contested, for hearings that are interlocutory or procedural, or trials that are based on submissions, and for hearings where both parties are represented. They raise real questions and concerns about the suitability of remote hearings for eviction proceedings.
Also, and this is important because I have just seen the guidance that the President of the Family Division has issued about the roadmap forward, our findings raise real concerns about hybrid hearings, so part video and part audio hearings, where some parties are in the physical courtroom and other parties are joining remotely. In our study we found that hybrid hearings experienced a greater number of issues with technology, a greater number of issues with parties expressing fear and distress, and higher rates of issues with lawyers finding it difficult to communicate with their clients. This reflects the findings of both a rapid evidence review I conducted for the Family Justice Review, looking internationally at research on hearings, and EHRC-funded research on the experience of disabled people in the criminal justice system, and Home Office research on video-enabled justice, which found that hybrid hearings impact negatively on participation and outcomes for people. I very much urge huge caution when we are thinking about hybrid hearings as a solution to medium-term issues around Covid.
The other area which I think would be of interest to the Committee is open justice. Again, it is a somewhat mixed picture. We heard that for journalists and court reporters the arrangements seemed to be working reasonably well. For the public, researchers and bloggers, it is more problematic. We found that only a minority of county courts are publishing open justice notices which give people the information they need to join hearings.
The crisis has also, importantly, exposed the extent to which the current system for collecting and publishing primary legal information, such as listings, transcripts and judgments, relies on in-person workarounds. These urgently need reform. We have a world-leading service for providing free access to legislation in the National Archives, and we need the same quality of service for judgments which are equally part of the law in this country, and yet beyond the reach of many people who need to access them. Those are some of the key findings and I would be more than happy to take further questions on the report.
The Chair: That is very comprehensive and touches on many of the issues that we will wish to take up with you. Baroness Fookes, would you like to start off with some of those issues?
Q41 Baroness Fookes: Dr Byrom, I think you indicated in your first answer that there was not too much reliable data on numbers of courts. Do you have any estimate of the number of proceedings that are taking place and the numbers that are adjourned, in particular whether it affects some types of cases rather than others?
Dr Natalie Byrom: We have heard from respondents that the number of adjournments has increased. We had responses from circuit leaders of the Bar who described the number of adjournments as posing “an existential threat”, particularly to the junior Bar, as I alluded to in my first answer, due to policy decisions. We have heard that those cases involving litigants in person and the vulnerable—housing, debt—have been artificially suppressed under Covid. However, I really need to stress that we cannot verify these findings because HMCTS has simply not collected data on what is happening in the civil justice system under Covid-19, and that is a real problem.
Baroness Fookes: Should it not be doing so?
Dr Natalie Byrom: Absolutely, it should be doing so. I do not know if the Committee is aware, but I was seconded to HMCTS at the end of 2018 to support it to produce a data strategy to work with external stakeholders from academia, from policy, and with court users, to try to develop a strategy and approach to collecting data to underpin the reform programme. We presented those recommendations to it in October 2019. They were received favourably, and a commitment was made to publish a detailed response explaining what would be done about those recommendations. As yet that response is outstanding. If it had implemented the data collection that we suggested in October 2019, we would be in a far better position to understand the impact of what has happened during Covid to vulnerable court users. Even beyond that, we would be in a far better position to understand what is happening in the justice system. To gather data on the cases which are being heard, we had to sit for five hours each day with an experienced circuit judge manually going through court listings to try to understand what cases were being heard. That is a ridiculous position to be in, and it is really important that this is addressed.
Baroness Fookes: We were told today that, as of last week, in East Sussex only two courts were operating at all, which is extraordinary.
The Chair: Lord Dunlop, do you want to follow up on this in terms of some of these issues?
Q42 Lord Dunlop: There is different software in use which your research highlights. Is variety in this context a plus or a minus? Does it provide valuable flexibility or make things more complex and inconsistent? May I slip in a quick second question? You mentioned earlier the high proportion of technical difficulties. How effectively have users been supported in overcoming these difficulties, and are there lessons for the court modernisation programme?
Dr Natalie Byrom: We heard from respondents about the proliferation of guidance, and the fact of the guidance not being located in one place, and the software being confusing and difficult to navigate. That makes it really difficult for people to manage litigant expectations and to prepare their clients for hearings. In the early days of the crisis, due to the fact that the reform products that were meant to support remote hearings—the common video platform and fully videoed hearings—were not available, it was understandable that we had to switch to using whatever technology platforms were available, but I think the time has come now to consolidate and move practice over.
The report contains a number of recommendations for how practice could be improved in the immediate term, which we hope will be taken up. It is important to say that the flexibility has, in part, been driven by the lack of resources available and the absence of reform products that were not ready to scale up to cope with this crisis. While flexibility in case management is vital, because it speaks to judicial independence, it raises issues about consistency and equality under the law, which are equally important constitutional principles, and those need to be borne in mind.
In terms of the support provided, one of the things that we picked up was that, in the higher courts, judges’ clerks are playing a key role in supporting virtual hearings, whereas at the circuit court level, where clerks are not available, there is an urgent need for more administrative support for judges to help them arrange these hearings, particularly when dealing with litigants in person and lay clients, who are not as familiar with the technology. The research published previously by HMCTS showed that one really important factor in making hearings work well was having this process support from court staff, a bit like I had before I came to speak to you, telling me how to set my lighting, what I needed, how to prepare myself, how to present myself, checking my sound. That is not available at the moment in a convenient place.
The Chair: Lord Howarth, do you want to follow up?
Q43 Lord Howarth of Newport: Would you say a little more about the experience of legal professionals of remote proceedings of which you have become aware? You told us just now that, broadly, it was found that remote hearings were worse than hearings in person, but have there been some sorts of proceedings which have been at least less unsatisfactory? Can you distinguish the views expressed by people at a very senior level—judges—and the views expressed elsewhere, for example by members of the junior Bar, and indeed by providers of legal services and legal advice in places such as law centres?
Dr Natalie Byrom: It is fair to say that there was a strong message that remote hearings were less unsatisfactory and worked well, as they do under the normal system not under Covid, for procedural matters, interlocutory hearings, and even for some trials based on submissions rather than live evidence. There is strong support from the profession for those hearings to continue to be conducted remotely as we move into the recovery phase.
When you are looking at splitting the experience across different types of court user, one of the issues that was raised consistently was problems with e-bundles. E-bundles become entirely critical to the smooth conduct of remote hearings. Obviously, if you are a professional working in a well-resourced area of law, you have access to the software and the ability to prepare those e-bundles, and you have support to hyperlink content and all those things. At the foundation I work at we have spent nearly £1 million on equipping law centres with the basics—I am talking Office 365—to enable them to operate so they can prepare e-bundles. We heard from legal aid practitioners and the Housing Law Practitioners Association that there are real difficulties with being able to access and navigate that software and prepare effective e-bundles. That is a big concern if, as we have found, the e-bundle plays a vital role in allowing hearings to proceed.
We also found that there was a real emphasis on the need for two screens and multiple devices to be able to conduct hearings remotely. People had one screen for the hearing, one screen for the e-bundle and another device to enable them to receive emails from their clients or text message their clients. That starts to add up to quite a lot of hardware to enable this to work.
The other issue that has been highlighted, not just in justice but in education and all these things, is broadband access and access to data plans. That is a huge issue. One of the surprising findings was that in the hearings that we captured data on, often it was the judge’s technology which was letting the hearing down and causing issues. There is an urgent need to equip judges with a backpack of resources—the hardware, the software, access to routers—to enable them to conduct these hearings effectively. I think that is really important.
The Chair: Baroness Drake, do you want to come in and follow up on some of the issues that have concerned you?
Q44 Baroness Drake: Your review acknowledges that only a small number of lay users and litigants in person responded. It is clear that similar reviews conducted by others have encountered the same issue. There is a real issue about capturing the views and experience of this group of people. There are two questions that flow from that. What needs to be done to understand properly the impact of remote hearings on this group? Also, would you express some views as to the access to justice issues, if we could successfully capture their views?
Dr Natalie Byrom: The first thing that needs to be done is that HMCTS needs to collect better management information on the cases that are proceeding and on the characteristics of the parties who are bringing those cases; particularly data that would enable them to monitor the impact of remote hearings on individuals with protected characteristics under the Equality Act. We have been working on this issue since 2017. I know that HMCTS has prepared some of the front-end solutions to capture that data, but it urgently needs to be encouraged and resourced to roll out that data capture across all reform products. It is vital that this is done because we are talking about a vanishing window to improve the quality of data that is collected through the courts system. At the moment reform products are being closed out, and once they are closed out, it becomes much more expensive to revisit them and build in the data capture that is necessary to address this vital question. I cannot stress enough how important it is that the Government act now to build that data capture in.
Without understanding at an aggregate level who is in the system, or having the ability to follow up with them directly, it is difficult. For example, the survey of employment tribunal applicants, which was conducted by the Ministry of Justice and was a really vital tool in understanding that exercise, cannot be repeated, because we do not have the basic data of who is in the system to be able to go back to talk to them. Without reforming this, it is impossible to understand the impact of remote hearings on the people whom the justice system is here to serve.
In terms of access to justice impacts, it is useful to draw on the common-law definition of access to justice, which consists of four components: access to the formal legal system, access to a fair and effective hearing, access to a determination and access to an outcome. It looks like the transition to remote hearings creates issues for litigants in person in terms of components one and two, and, by extension, components three and four. The issues on access to justice which are raised for litigants in person involve not having access to technology—hardware, software, data allowances and broadband. I mentioned that two screens seem to be required to enable professional participants to participate, and that level of resource and equipment is beyond the reach of most litigants in person, and of lots of people in general.
The other issue under the pandemic is not being able to access information and support from court staff to enable parties to take part in hearings. An account we heard from a litigant in person was that he ended up dialling into his remote hearing from his car. He had had no communication from the Courts Service. He had driven to take part in the hearing, thinking it was going to take place in person, and was told by court staff when he got there that it was a remote hearing, so he had to scramble to take part in the hearing on his mobile phone.
We also heard some really upsetting accounts of the impact of remote hearings on litigants in person and their attitudes and confidence. We had descriptions of remote hearings as “humiliating”, “confusing” and “second-class justice”. It is incumbent on us all to remember that, for the majority of litigants, a court case is a really important event in their lives. It is not the same as for professional users. We really need to think about the message and their expectations and attitudes when we are thinking about transitioning to remote hearings.
The second area of access to justice which is impacted by the transition to remote hearings is access to a fair and effective hearing. For a hearing to be fair, and to deliver under the principles of access to justice established in the ECHR, participants need to be able to participate effectively, and that involves being able to communicate with your legal representative when you have one. We heard that the practices that have been adopted by lawyers to communicate with their clients rely on lay parties having access to multiple devices such as WhatsApp, and good written comprehension, for that reason. This creates additional barriers to effective participation.
There are also issues where litigants in person or parties have English as a foreign or an additional language, and particularly where litigants have learning disabilities, mental health issues or hearing disabilities. It is much harder to lip read or follow proceedings remotely. There are stories of the equipment interfering with hearing aids, and the ability to have real-time transcripts is only available in the senior courts.
We also heard that a combination of restricted access to legal advice—because lots of sources of free legal advice have been unable to operate as they used to under Covid—and difficulties with navigating unfamiliar technology, alongside an unfamiliar legal process, compound pre-existing practical and emotional barriers to participation. While we absolutely cannot say that remote hearings make these worse because we do not have a counterfactual, we can say is they do not seem to make them better, and we need to be concerned about that.
The Chair: Thank you very much. That is a very comprehensive answer. Baroness Corston, you wanted to come in on open justice.
Q45 Baroness Corston: Dr Byrom, in your preliminary remarks you made reference to open justice. Could you explain what you think are the effects of remote hearings for the media, the public and for the general principle of open justice?
Dr Natalie Byrom: As I said, the experience of journalists and court reporters was broadly positive. Where they had been able to make contact with courts and had been able to secure access to hearings, we found that no one had been denied access to a hearing that they wanted to report on. That is great and to the courts’ credit. However, access for journalists and court reporters is only one part of open justice. It is not sufficient to render a system open by having journalists there. There were real issues with members of the public and researchers being able to join and being able to gain access in the way that journalists are able to do. I think that that is a problem. Again, there is a split between the upper and lower courts, with the issues seeming to predominate at county court level.
Another concern is the impact that Covid-19 has had on the number of hearings taking place in private. There is an urgent need to capture data on how many hearings have taken place in private during this period, because the practice direction allows for that to happen where it is impractical to broadcast the hearing or make it open to people.
The other important issue is around accessing documents relating to cases which are considered vital to facilitate accurate reporting. When you attend a hearing in person, you can go to the court staff and ask for access to these documents, but, when hearings are proceeding remotely, it is much more difficult to gain access to them. Existing deficiencies in the current arrangements for accessing listings, judgments, transcripts and case documents, where they are authorised by the court, have been compounded by the current crisis. We need urgent systemic reform to the way in which information about the courts is disseminated, particularly when we are thinking about the reform programme, which aims to move to more of these digital ways of working, and more towards a system of people attending court and participating in hearings unrepresented, so people need to have access to the fundamental material that describes what the law is in this country.
We also need to end the practice of allowing parties to record hearings. It is fundamentally unacceptable. In some cases, we have heard that legal representatives have taken on the responsibility for making the recording of hearings. That has to be done by the court. It cannot be done by parties, however well-meaning they are. I think it is really important that that is addressed.
The Chair: We need to move on. Lord Faulks.
Q46 Lord Faulks: Dr Byrom, many congratulations on producing this review in such short order and thank you, too, for your evidence, which has addressed some important constitutional matters for our Committee. I am not going to ask you the question I was going to ask because it was about the need for data, and you have already given a very full answer on that. I want to ask you another question. Last week we heard from Professor Susskind, and I think he was rather more enthusiastic about what has happened over the last few months than your report perhaps would support. In particular, he said that as a result of what has happened—this rather enforced experiment—he thought that we should be thinking more generally about changes in the way that we decide issues. Has your review enabled you to have any general views as to how justice might change in the long term?
Dr Natalie Byrom: The key lesson for me—and I believe Professor Susskind said this in his evidence to you—is that technology is not a panacea for procedural complexity. What we have revealed here is that, for certain categories of cases, in certain areas of law, such as large commercial cases, where both sides are represented, there is good reason to think that we could make better use of remote technology to allow procedural hearings and hearings without evidence to go ahead. That could be transformative in a range of ways. It could have positive impacts on carbon emissions, for example, if fewer people were travelling to court to participate in what are essentially procedural hearings.
However, when we are thinking of the future of the justice system, often the question posed is: is technology the answer to access to justice? Transparently, no, of course not, but we need to understand and look at users, and look at the barriers people face in the current system that stop them from being able to participate, and design procedural and legal solutions which address those barriers. Perhaps technology will be a part of bringing more people to participate, but you also need to redesign the process.
When you look internationally at examples where it looks like this has been done more successfully—the Civil Resolution Tribunal in Canada is the example that most people point to—first, they reformed and simplified the legal process and added technology as a way to expand the reach of that tribunal. They did not start by saying, “We will take the existing system and make people access it via Zoom or Skype”. It is transparently obvious that that is not the way forward. I think the issue here is to think about what routes work best for which types of court user and which types of problems. I know that was a message that Professor Genn spoke about last week and I would fully endorse her in that.
The Chair: Following up on what Lord Faulks has just said, you have proved the need for data. Are you going to be able to do more research?
Dr Natalie Byrom: I very much hope so. The point about what we have done here is that it is not generalisable and it is a snapshot in time. What needs to happen over the next period is for longitudinal research over the next three years to follow up periodically and look at how the experience of these technologies is changing over time. I really hope that will happen. The key to reaching litigants in person and parties is having that basic data to enable us to understand who they are, so we can go back and talk to them. That is really important.
If eviction proceedings are to be resumed, there is a vital need to investigate alternative options for conducting them in a socially distanced manner, and in a way which enables people partaking in those hearings to access legal advice in the same way that they can do with the court duty scheme. Much more urgent work is needed to understand what needs to be done in remote hearings to ensure that they are fair and effective before they are scaled up. That is not to say we should pause the reform process. It is absolutely imperative that we get more resources into the courts and ensure that judges and court staff have the technology needed to reform the system, but getting some basics right around basic management information is key to facilitating better research. If that is in place, I really hope that we will be able to do more research.
The Chair: Lord Wallace, you were interested in some of the immediate issues.
Q47 Lord Wallace of Tankerness: Dr Byrom, you just used the phrase “the need for more resources in the courts”. I have been noting during your evidence a number of shortcomings you have identified, and you have used the expression “urgent need”. Looking forward to the next six months, what would you identify as the immediate priorities and where, if there are more resources, should these best be directed to maximise effectiveness?
Dr Natalie Byrom: First, as I have said, if we are going to resume eviction hearings, we need to direct urgent resource at the question of how we enable those to happen in a way that is fair and protects people’s rights. That is an urgent need. What we are looking at there, given the timeframe, is Nightingale courts, pop-up courts, to enable those hearings to happen in a socially distanced manner. We need to improve the consistency of the guidance offered on the conduct of remote hearings and make it available all in one place for people to access. We need to improve the technology that is provided to judges, including finding ways to improve their access to reliable broadband.
We could sensibly dedicate resource to maximising the use of remote hearings for basic procedural matters where both sides are represented. It is really important that we continue to list trials because a trial date plays a vital function in encouraging settlement. It is important that those continue to be listed.
We need to prioritise physical hearings for cases involving litigants in person, particularly where litigants are identified as vulnerable, or where they have English as a foreign language. We need to proceed with extreme caution in adopting hybrid hearings and in considering proposals to livestream cases. That is a really strong message. I also think we need to act now to improve the data that we capture on the justice system so we can understand how well it is coping and how well it is dealing with the backlog. We need urgently to commission a follow-up review to enable us to understand the experience of lay users, because we simply have not heard enough from them.
The Chair: Lord Pannick, I think this is an area you know something about.
Q48 Lord Pannick: May I follow up on two matters? The first is the failure of the Courts and Tribunals Service to provide data to you and to the rest of us. Could you clarify whether you have been in contact with the Courts and Tribunals Service to ask why it is not collecting and providing data? The second question is a follow-up to a question you were asked by my colleague Lord Faulks. The pre-Covid-19 court system was much criticised, often with justification, for delays, for lack of efficiency, and for cost. Would you therefore not agree that, as Professor Susskind has been suggesting, virtual hearings offer at least part of a solution to those endemic problems?
Dr Natalie Byrom: To your first point, at the start of the review, the Civil Justice Council was in touch with HMCTS to ask if it could provide the information that we would need to contextualise the review we were conducting. We were told that it was not captured. I do not want to speculate as to why that information has not been captured, but I suspect it is because at present it relies on manual work to record that information. I know it was really hard for the Courts Service with the reduction in the availability of staff that was brought about by the pandemic.
I have to say that the issues around data are systemic. They existed before the pandemic. If urgent action is not taken now, they will exist beyond it. As I said, we put a set of 29 recommendations to HMCTS to improve its data collection in October last year. We were told that it was warmly received and that we could expect a response. The response is still outstanding. I would be really keen to hear from it what it plans to do next with those recommendations.
I do not think anything I have said should be taken to mean that we should never use virtual hearings in any circumstances. That is clearly not the case, and it would be silly anyway because telephone hearings, as I said, were used in procedural matters routinely before the pandemic happened. We need to develop a better understanding of what cases these hearings work for and whose interests are served by hearing cases remotely. I can totally see that in dealing with the backlog, listing more procedural matters to be dealt with remotely could form part of the solution, but it all hinges on an understanding of where these hearings are most appropriately used.
I have to say it is a disappointment that we are as far into the reform programme as we are and we launched into this epidemic with such little understanding of who these hearings are suitable for and who loses out when court processes are digitised. That is directly attributable to the failure to collect better demographic and protected characteristics information on users, even from those who took part in the pilots which have been held. I would say that virtual hearings are a tool, but we need to understand who they are a tool for, and until we have that information we cannot endorse rolling them out because of endangering access to justice.
The Chair: Lord Beith, I think you wanted to broaden this out a little further.
Lord Beith: I think Dr Byrom has fully answered the long-term issue which I was going to raise with her and delivered the message that we have to get the system right and apply the technology to it rather than expecting the technology to get the system right.
Dr Natalie Byrom: Exactly.
The Chair: It has been a very interesting session. Your findings, although limited in terms of the snapshot, have been extremely helpful to us. I hope that you are able to review this situation on an ongoing basis, or at least to have further snapshots in the future. That has been very helpful. Thank you very much.
Dr Natalie Byrom: Not at all. Thank you very much for your time and thank you for taking an interest in this issue. It is so important, and it is brilliant to see that you have, so thank you again.
