Data Collection and Digital Courts

In April 2018, TLEF sought advice from one of the country’s leading information lawyers, Timothy Pitt-Payne QC on the collection of equalities data in the context of the ongoing programme of court reform led by HMCTS. In particular, TLEF were keen to clarify whether Government Digital Service Standards (“GDSS”), the General Data Protection Regulation (“GDPR”) or the Data Protection Act 2018 (“DPA”) precluded the collection of this data for the purposes of evaluating the impact of reform. Timothy Pitt-Payne QC said:

“In relation to the GDSS, I do not understand on what basis this is said to be an obstacle. There are 18 principles that are central to GDSS; none of them seems to me to rule out the data collection that TLEF is advocating. Indeed, principle 15 advocates the collection of performance data, thereby acknowledging the value of taking account of data collection when designing a system. Even if there is some conflict between the GDSS and the data collection advocated by TLEF, I do not think those responsible for the Programme can properly treat this as determinative. GDSS has no specific legal basis; it is a policy framework for Government websites operating under the gov.uk umbrella. A policy framework of this kind should not operate as a fetter on the discretion of those who design and implement the Programme…The GDPR and the DPA do not seem to me to preclude data collection of the type advocated by TLEF…The GDPR and the DP Bill– read together – provide a number of bases on which the collection and analysis of this kind of data could be justified.” 

In concluding, Timothy Pitt Payne said:

“Generally, the Programme is of great importance. It has the potential radically to change the way in which citizens interact with the Court system: it intends to move the focus from interaction in the physical world to online interaction. There is considerable potential for this to have a different impact as between different groups, with an adverse effect on those who are unable or unwilling to use online services, or who face particular difficulties (e.g. related to physical disability) in doing so. There are also wider questions about how the perceived fairness and legitimacy of the Court system will be affected by the Programme. All of these are important questions, requiring careful consideration: and without a proper evidence-base, the discussion is likely to be driven by untested assumptions.”