Sarah Moore is a Senior Lecturer in the Department of Social and Policy Sciences at the University of Bath.
The Justice Alliance was in the news in May for a visually-striking protest against court closures in England and Wales. Their guerilla slideshow, projected onto the building wrap of a recently sold-off London court, detailed the radical changes to the court estate. It made for grim viewing.
Between 2010-11 and 2017-18, the government closed roughly 250 court and tribunal buildings (Caird and Priddy, 2018: 30). To put that into context, it means that half of the magistrates’ courts in England and Wales have been closed in the last decade, as revealed by data produced by the House of Commons library in collaboration with The Guardian. And the government’s future court reform strategy is very likely to bring further rounds of court closures.
So why is the government — to borrow the title of the Justice Alliance’s campaign — ‘Selling off the Silver’? It’s tempting to see the reduction in court buildings as a simple case of austerity-era politics in action. Certainly, financial expediency has come to dictate many government decisions about our justice system in the last decade — and at the cost of access to justice, something I’ve written about elsewhere.
It’s also important to think about how court closures fit into the highly ambitious £1 billion court reform programme currently underway. Here, the aspiration is for the physical courts of yesteryear — seemingly sluggish, anachronistic, expensive, and paper-bound — to be replaced by a new, virtual court estate. As the 2016 announcement of the court reform programme made clear, the ambition is for all cases to begin online, for some to be carried out entirely online, and for physical court hearings to make more extensive use of video conferencing.
We know now, in light of a devastating House of Commons Committee of Public Accounts (2018) report last year, that much of the court reform programme is in jeopardy due to (their words) ‘poor progress measures’ and ‘weak governance’. Still, to see this as a set of reforms bound to miss the mark is to ignore the overall purchase of the set of ideas set out in the government proposals. We are already on a course that takes us towards a digital-first justice system.
The court reform programme is worth taking seriously for another reason. As I argued in a recent article, it tells us much about the bases of digital-era government. The idea of virtual hearings will be familiar to anyone with an interest in twenty-first century public policymaking. It is part of a global shift towards digital solutions to policy problems.
In one sense this is a piecemeal set of developments — evident, for example, in the introduction of digital management systems and online hubs for public services. Governments envisage a more wholesale change, too: the emergence of ‘government as a platform’, a phrase coined by US computer strategist Tim O’Reilly to refer to a vast, online government edifice, developing systems and processes algorithmically in response to citizens’ use of online services and processes. Whilst digital technology might appear to be the driving force behind these developments, I think we should think some more about where this shift has come from, and where it’s potentially taking us.
The move towards ‘virtual courts’ is a case in point. Digital technology has made the move into a virtual realm thinkable, but there are other powerful ideas at work here too. The radical re-thinking of the court estate is driven at least partly by a new orthodoxy within policymaking— in the UK and elsewhere — that public processes and services are best approached as design problems. In the UK, the work of the Policy Lab — founded in 2014, in response to the UK’s Civil Service reform plan’s call to diversify the policymaking workforce — is a case in point. Here, and elsewhere, the focus is on a creative, design-oriented, incrementalist approach to policymaking, one that prioritises the usability and convenience of public services and processes for individual-users.
It’s an approach that fits neatly with the tenets of ‘nudge’ — another key principle of twenty-first century policymaking. The central idea behind ‘nudging’ is that policymakers should use unobtrusive and non-prohibitive mechanisms to encourage citizens to make the ‘right’ choices. Nudging works by exploiting people’s tendency to follow the path of least resistance by altering what Thaler and Sunstein (2008) call the ‘choice architecture’ (such as — their example — putting healthy food at eye-level in the school canteen).
Design-thinking and ‘nudge’ have become central to the practice of twenty-first century policymaking, providing a new way of thinking about the role of policy in improving public services and processes. This has served as fertile ground for the development of digital-era government initiatives.
Take, by way of example, virtual hearings. Only in circumstances where the main aim of policy is to re-design services, and citizen decision-making and participation has become conflated with convenience, can virtual courts appear to be such a no-brainer. This is the underlying logic to government statements about the court reform programme — such as this characteristic statement from the Ministry of Justice and HCTMS’s joint response to the 2016 consultation on court reform:
In a society where people transact digitally in so many aspects of life, they expect a service to be available when they need it. Access to justice cannot, therefore, be defined solely by proximity to a court or tribunal building. It must be defined by how easy it is for people – witnesses, victims, claimants, police and lawyers – to access the service they need, however they choose to do so (MoJ and HCTMS, 2016: 4).
Digital technology figures here, but what is more striking is the accompanying vision of citizens’ needs in relation to justice as based entirely on the availability of a service or process (nevermind the faults therein, or the citizen’s ability to understand what’s going on, act on the information provided, have their say and be heard, or participate in decision-making).
Something else is evident here — and across court reform proposals — and that is the lack of consideration for what happens to the public when the work of the court is moved online. That the courtroom has, historically, made space for the public to ‘see justice being done’ makes this question an especially pressing one. A number of academics have explored the problems herein, notably Mulcahy (2008), who suggests that the rise of the ‘virtual court’ means the loss of an important public ritual — important, that is, because it takes place in public.
Another way of thinking about this is to consider how the place and role of the public in ‘seeing’ justice might change in the shift towards a digital-first justice system. A report by Transform Justice (2018) suggests that the public might be able to watch streamed footage from specially-constructed viewing pods in court foyers. Or maybe, in line with the extension of courtroom filming, the ‘new normal’ will be for members of the public to watch selected streams on their laptops at home, via a court’s online platform.
Whatever happens, the public’s role is being radically altered away from co-present observers and towards virtual viewers of official court processes. This means, amongst other things, that the public will be a public no more; just a set of individual viewers, invisible to other court participants (but always potentially watching, in their own time and space). Digital-era government initiatives more generally reconfigure the public into a set of individual viewer-users. Indeed, as noted above, the aspiration is to build upon this capacity for technical individuation by tracing citizens’ online behaviour and adjusting public processes and services accordingly. We might not be able to feel the physical presence of the public in the civic virtual spaces of tomorrow — the court included — but we will almost certainly be able to register their presence as a wave of online viewing behaviour.
This shift — from feeling, to registering public presence — tells us much about the changing nature of state-citizen relations in digital-era government. This is something that the political theorist Bonnie Honig (2017) is broadly interested in too, in a blistering critique of the decline and loss of civic spaces in the USA. She calls these ‘public things’, a phrase that seeks to capture the role of — amongst other things — public parks, libraries, and other municipal buildings in ‘teaching’ us how to be citizens. Just as children learn emotional attachment through seminal objects in their lives, citizens, too, Honig wants to suggest, develop a sense of belonging and responsibility through their use of public ‘things’. When we’re quiet in the library, observing process in the courtroom, using the bins in the local park, waiting our turn to speak at a constituency meeting, or protesting with others outside of parliament, we are honing our civic abilities. These aren’t experiences borne of convenience; often, they test our ability to deal with resistance, to go out of our way, to wait our turn, and to recognise others’ claims to shared resources.
It’s an observation that should give us pause to think again about the ‘virtual court’, and — more than that — the new digital interfaces and platforms that are coming to take the place of physical, public ‘things’ in our lives. The focus, in much political debate, is on what’s gained in this brave new world of online public service-use. Above, I’ve suggested that this discussion is too narrow, shaped as it is by the underpinning idea that the task of policy is to make services as convenient as possible. Broadening our sense of what citizens need from public services and processes would sharpen our sense of what’s potentially lost in the move towards digital-era government.
Caird, J.S. and Priddy, S. (2018) Court Closures and Reform. Debate Pack, Number CDP-0081. London: House of Commons Library.
Honig, B. (2017) Public Things: Democracy in Disrepair. New York: Fordham University Press.
Mulcahy, L. (2008) ‘The unbearable lightness of being? Shifts towards the virtual trial’, Journal of Law and Society, 35(4): 464-89.
Thaler, R. and Sunstein, C. (2008) Nudge: Improving Decisions and Health, Wealth, and Happiness, USA: Yale University Press.