The following post is based on opening remarks delivered by The Legal Education Foundation’s Director of Research, Dr Natalie Byrom, at an expert seminar held on the 21st July 2021.
“My name is Dr Natalie Byrom, and I am Director of Research at The Legal Education Foundation. We are delighted to welcome you to this afternoon’s event which brings together leading experts working at the intersection of data and justice for a discussion chaired by the brilliant Joshua Rozenberg. I will hand over to Joshua shortly, but before I do, I wanted to explain why the Foundation has convened this event and set out some of the background to and context for this afternoon’s discussion
With my colleague Tracey Gyateng I lead on developing the Foundation’s Justice Lab initiative, which aims to bring about a cultural shift in the way justice systems are studied and understood. The Justice Lab initiative catalyses and commissions robust research to build a justice system that works for everyone. Key to delivering our vision, is improving the quality and accessibility of justice system data, including data relating to the operation of the courts and tribunals.
In England and Wales, the ongoing £1bn programme of digital court reform led by Her Majesty’s Courts and Tribunals service provides the opportunity and the infrastructure to radically rethink the way in which data about the justice system is collected, stored and shared. The Foundation’s interest in improving the way data is collected and managed by the courts and tribunals led to my secondment to the court service between 2018 and 2020. As part of this secondment- I worked with stakeholders and the court service to define the data that new digitised services should collect, recommend reforms to existing information flows, including those relating to judgments and case law and propose new governance models to support improved data sharing- across and beyond government.
The recommendations developed through my secondment were published in 2019 in TLEF’s “Digital Justice” report. In 2020, the court service responded accepting the majority of the recommendations made. Progress on implementation has however, to date, been varied- and much will depend on the outcome of the upcoming spending review.
Why is it so important that work to improve justice data is prioritised? Put simply, because without it, we are ‘flying blind’: wasting money, designing poorly evidenced policies and letting court users, court staff, victims, witnesses and the public down in the process. Which is more effective at reducing case backlogs- remote hearings or nightingale courts? We don’t know. How many disabled people have participated in remote hearings? We don’t know. How many judges sat during COVID? We don’t know. What have COVID-19 arrangements done to case outcomes? We don’t know. Just last night, a Channel 4 documentary called attention to the way in which domestic abusers are using allegations of “parental alienation” to encourage courts to remove their partners access to their children- effectively weaponizing the family justice system. How often does this happen? How many parents and children are affected? Again- We don’t know. The data used to support the governments judicial review bill, published today, was so incomplete and contested that five separate figures were provided in answer to the same basic question and the statistics regulator was forced to intervene. Analysis conducted by the Centre for Public Data of written parliamentary questions submitted in 2019/2020 revealed that a staggering 40% of questions directed to Ministers in MoJ could not be answered due to lack of data. Choosing to continue as we are, squandering the opportunity presented by reform is the equivalent of starting a new hospital and choosing not to record how many operating theatres it has, how many surgeons are available or how many patients die. It is not and cannot be accepted.
So action must be taken to improve and expand the data that is collected by the courts and tribunals system. This data can be used for a range of internal purposes, to provide better support to court users, to drive operational improvements, improve resource allocation and support research and policy. If made available for secondary use, such as external research and commercial innovation. it could also be used to support the development of new service models. There can be no doubting the level of external demand and interest. Just last week a report published last week by Law Tech UK, an organisation funded by MoJ, identified action on data collection and access as one of its seven priority areas. How should the court service respond to this demand? What rules, principles and procedures should govern access? Which models are most effective? In order to begin to answer these questions, in 2020 we commissioned Dr. Judith Townend to review existing practice across three common law jurisdictions – and you will hear from her about what she found in a moment.
Since this research was commissioned, there have been some positive developments. ADR-UK investment in the MoJ Data First project has created a new and trusted route for research access to some court microdata. The Open Government Action Plan will, for the first time in the UK contain a commitment to Open Justice that is likely to be framed around data and information. Crucially, a new Senior Data Governance Panel has been created to advise the Lord Chancellor and Lord Chief Justice on “novel or contentious” applications to access and use data held by the courts. This governance panel is based on models developed in the health context (such as the Confidentiality Advisory Group). Confidentiality Advisory Group model was recommended because there are parallels between the data held by the courts and those held by health agencies- the justice system interacts with people at their most vulnerable and gathers data that is personal (in both the legal and colloquial sense). However, there are significant differences- the principles of open justice require that some kinds of data are public, courts acting judicially are exempt from GDPR and FOI. Critically, unlike in health, the Senior Data Governance Panel has not been placed on a statutory footing- the Confidentiality Advisory Group on which the panel is based provides advice to NHS Digital on the role of data sharing as part of its duty to: “promote public health”. There is, at present, no analogous framework for the Senior Data Governance Panel to provide advice on data sharing: “in the interests of promoting the effective administration and access to the justice system”.
How then should the panel make decisions? How can it make the right ones, and why does this matter so much now? National and international experience, both in justice and other fields, suggests that strengthening the Senior Data Governance Panel, and developing a public mandate for data sharing is critical to support innovation, prevent costly mistakes, and protect both the public and the reputation of the justice system. The recent experience of GPDPR and the Ofqual exam grading scandal of last summer shows the dangers of moving beyond public acceptability, and in the justice context, we simply do not know what the public thinks- especially in relation to commercial re-use of data.
In France, a rush to open justice data led to a rapid expansion in the use of litigation analytics to predict judicial decisions, which was then subsequently banned, undermining nascent business models. In the USA- legal publisher Lexis Nexis has attracted criticism for selling information on individuals, aggregated from court records, to the US Immigration and Customs enforcement agency. A recent paper published by Adams and Adams-Prassl has outlined the threats posed by online publication of employment tribunal decisions, including blacklisting – these threats have also been reported by poverty lawyers working in the US. How do we identify and respond to material risks in the context of information assymetries? Is restricting access to data the answer (at the expense of open justice) or should we look instead to regulate misuse? In the context of decisions being made about the coverage and publication practices of the forthcoming National Archives judgment repository, these questions are particularly pressing. The Legal Education Foundation is committed to supporting further work in this space, and I hope todays event is the start of a longer conversation.”
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