Reforming Justice in a changing world? The right data is fundamental

Access to Justice for those without means, what’s the the future? This year’s focus at the annual Civil Justice Council National Forum brought together a wide range of people and organisations involved in the civil justice system including the judiciary, not-for-profit legal advice sector, corporate pro bono, academics and officials from HM Courts & Tribunals Service (HMCTS) and the Ministry of Justice (MoJ).

With civil justice undergoing an unprecedented reform, it was time to drive home the message: It’s time to design for justice not simply attempt to design injustice out. A fairer, more equitable justice system won’t happen by accident, without good judgement and a redistribution of power.

Here’s my contribution to the panel which included: Dr Natalie Byrom, (Director of Research and Learning, The Legal Education Foundation), HHJ Barry Cotter QC, (member of the Civil Justice Council), Professor Betsy Stanko OBE, (University College London and External Advisor, Data First Programme, Administrative Data Research UK).

You have led research for the Open Data Institute collecting data on protected characteristics across government — why is it so important to collect this information?

The World is Changing: During my research into Monitoring Equality in Digital Public Services, I found that many of the public and private services we use are now digital. This shift is only going to accelerate as technology becomes more and more embedded in our lives. This shift affects everyone and every institution. With our world changing, it’s vital that we use the right tools and the right information, at the right time, to reach our intended outcomes. What we do today will determine if and how we bring our complicated and sometimes complex government and justice system safely into that future. Protected characteristics are more than just classifications. They help you evidence that you are protecting individuals from unfair treatment and promoting the fair and more equal society that’s at the heart of the Equality Act of 2010.

What is the role of data in making services equitable?

Data — more than numbers and categories: If there’s one thing you must take away from today it is that data is more than numbers. Your case notes, your precedents, your speeches, all your text are data too. And all can be used alongside numbers, categories, audio, video and much more to support your intended outcomes. The ambitious programme of court reform, aiming to bring new technology and modern ways of working to the way justice is administered, cannot be achieved without good data, policies, and practices. Without good data you are working in the dark. How many cases? How long? How many more cases can we take on? Without good data you have no idea what is happening now, never mind what could happen in the future. Without good data, Artificial Intelligence or AI (a brilliant tool when used responsibly), becomes a sticking plaster at best. At worst, AI automates and accelerates the scale of harm. Without good data, you are effectively saying “We are content to be ignorant and unaccountable”. Add AI that isn’t designed to enable justice to that mix and what you’re now saying is “We are also content to abdicate our responsibilities”.

There is a better way: This doesn’t have to be our reality. We can choose to do things differently. We can choose to design a justice system that is just supported by a bedrock of good data, responsible automation, and most importantly people who have the capability to use data and digital to do their work effectively. That’s everyone from clerks to the Lord Chief Justice. The justice system in England and Wales is part of 1,000-year history of legal evolution. It has seen and seen off trial by ordeal, trial by combat, the assizes system and more. This is an opportunity, if well managed, to design access to justice that is supported by technology rather than hamstrung by it.

Some have suggested that collecting data on demographic and protected characteristics harms those who are asked, and puts people off using services. Is there any evidence for this?

Evidence not instinct: In 2018, an Equality and Human Rights Commission (EHRC) report found that third (32%) of businesses felt collecting ethnicity data was “too intrusive”, while a quarter (27%) thought “employees did not want to share the information”. Note the key words here are “felt’ and “thought”, not “evidenced” or “discovered”. Where is the proof of this? Has anyone asked the people affected?

Building trust by taking action: So, what do the organisations that represent people with protected characteristics think about collecting this data? “What gets measured, gets managed”. Stonewall, the organisation that represents the LGBTQ+ community share in their workplace guide how to make the most of sexual orientation data collection. Stonewall point out that “Data relating to sexual orientation also provides a powerful tool to measure success in eradicating homophobia from the workplace.” You’ll find this view widely adopted across the civic sector. For example, Scope, the disability equality charity in England and Wales, shared in 2018 “Why employers should make gathering disability data a priority”. At the heart of this question is this: How can you prove to the public that you serve us equally when you are ignorant about who you serve?

Safety not ignorance: That’s not to minimise that there is a lack of trust in public institutions and a frustration around the lack of progress made by civic cornerstones. The answer lies in collecting this data safely, giving people a choice to represent themselves as they identify or to opt out, and most importantly, to act using the data to change outcomes, then show that you are doing so. Trust is built and strengthened over time by the actions you take everyday.

Good data is power. Use of good data is foundational and critical to bring Justice forward to the vision of a fairer, more equal society. This will not happen by accident.

With thanks to my allies for their support and help in shaping this: Leah Lockhart and Mor Rubinstein.