 Welcome to the 10th meeting of session 6 of the Qualities, Human Rights and Civil Justice Committee. Apologies have been received from Pam Duncan-Glancy and Paul Cain is attending as substitute member. Welcome Paul. Gender item 1 is to agree whether to take items 5 and 6 in private, which is consideration of today's evidence and consideration of our approach to our stage 1 scrutiny of the minor strike part in Scotland bill, are we all agreed. That is agreed, thank you. Our next agenda item is consideration of an affirmative instrument, which is the draft independent reviewer modifications of functions Scotland regulations 2021. I welcome to this morning's meeting Claire Hoche, MSP Minister for Children and Young People, Angela Leonard, policy officer, disclosure of Scotland and Barry McCaffrey, solicitor, legal director in the Scottish Government. You are all very welcome. I refer members to paper 1. I invite the minister to speak to the regulations. Thank you very much, convener, and thank you for inviting me to say a few words on the draft regulations. Those amendments are technical and are necessary to ensure that the age of criminal responsibility Scotland Act 2019 can be applied as intended. I will now refer to that as the 2019 act. The 2019 act raised the age of criminal responsibility in Scotland from 8 to 12. The act established the role of the independent reviewer who oversees the disclosure of convictions and other relevant information related to when a person was under the age of 12. The purpose of those regulations is to amend the 2019 act. The regulations are in consequence of the age of criminal responsibility Scotland Act 2019 consequential provisions and modifications order 2021. That order, which is currently being considered by the Westminster Parliament, makes provision in relation to the independent reviewer that applies in England, Wales and Northern Ireland. In particular, the order places a requirement on specified persons in those jurisdictions, such as, for example, chief police officers, to refer and provide information relating to an individual's pre-12 behaviour to the independent reviewer. Those regulations therefore modify, in light of that order, the relevant functions of the independent reviewer in the 2019 act. That is to require the independent reviewer to review that information, invite representations, notify the outcome of the review and, where appropriate, advise on the right to appeal that decision. The changes support the Scottish Government's decision to raise the age of criminal responsibility from 8 to 12 by ensuring that the independent reviewer can review relevant information received from specified persons in other parts of the UK as well as Scotland. Committee members will wish to note that those regulations do not take forward any new policy. They are required to fully implement the 2019 act. I would be happy to take any questions on the regulations. Thank you very much. Do any members have any questions or comments on the regulations? On that case, we will move to agenda item 3, which is consideration of the motion for approval, and I invite the minister to move the motion. I move that the Equalities, Human Rights and Civil Justice Committee recommends the independent reviewer modification of functions Scotland regulations 2021 be approved. Any final comments from any members? In that case, are we all agreed? That is agreed and therefore the clerks will write a note and report on our decision and the motion is agreed as moved. That completes consideration of the affirmative instrument, and I thank the minister and the officials for attending. The next item on the agenda is to take evidence from our civil justice stakeholders on remote hearings and digital justice. I welcome to the meeting Kay McCorchydale, executive director, judicial office, Scottish courts and tribunal service, Ruth Crawford QC, treasurer at the faculty of advocates, Ian Nicol, convener of the civil justice committee and the law society of Scotland, Karen Wiley, vice chair, family law association of Scotland and Professor Richard Suscand, OBE technology adviser to the Lord Chief Justice of England and Wales, who is joining us remotely. You are all very welcome to today's session. I refer members to papers 2 and 3. I invite each of our witnesses to make short opening statements starting with Kay, please. Thank you, convener, and thank you committee for asking me to be part of the round table event. I would like to make a short opening statement on behalf of the Scottish courts tribunal service. The Scottish courts tribunal service digital strategy, which was published in 2018, set out a five-year ambition to move towards an increasingly digital service. Significant progress has been made on that front, largely out of necessity. It is fair to say that the pace of change has increased to an unprecedented level over the past year and a half. We could not have anticipated the speed with which we would need to develop an increasingly digital service and conduct business remotely. Throughout the pandemic, we have supported all essential civil business by focusing our efforts on managing as much business as possible remotely, whether that be by written submissions, teleconference or virtual hearings. Throughout this period of rapid change, we worked collaboratively with the legal profession, the judiciary and our staff. We shared a common goal of getting the business done. Our use of the WebEx platform as a solid foundation for remote operations has ensured that SCTS has been able to support the conduct of civil business electronically. As a consequence, business across the civil courts has been able to proceed. There are no backlogs. Remote management of business and hearings remains the norm at this point in time. As we move through the response to Covid-19 and into recovery, we will continue to review how civil business can best be conducted. We will work with our justice partners, including the Scottish Government, to ensure that the innovations that have been essential in enabling civil business to continue are retained. However, the Scottish Civil Justice Council is a body tasked with modernising the civil justice system in Scotland, and it is ultimately the council's decision to decide how civil court proceedings should proceed. Our ambition for the SCTS is for our services in whichever way they are provided to be accessible, transparent and above all fear, and for the lessons that we have learned over the past 20 months to be put to the best possible use, promoting more sustainable and efficient options as we seek to further improve access to justice. I thank you for inviting me to give evidence to this morning's session on behalf of the faculty of advocates. It seems to us that there are two core principles when considering the benefits and advantages of digital justice, as it is described in your agenda. The two core principles underline the crucial importance of our justice system, which is itself an integral part of our democratic system. The first core principle is that of open justice. The public and indeed the media must be able to effectively access what goes on in our courts. At present, perhaps for understandable reasons due to concerns that those who are accessing the courts remotely may abuse their access, but at present access to video hearings is limited. The court has concerns going forward about how to deal with access by the public to our courts if we are going to continue with remote hearings. That principle of open justice has been part of our law since 1693, enacted in the Court of Session Act of that year. The courts have been open to all since 1693, save in specific special cases. That principle of open justice has been consistently recognised throughout the courts, both in England and Wales, as well as Scotland and, indeed, in every jurisdiction of which we are aware—safe for those of autocratic states. That reflects the principle that justice must not only be done, but must be seen to be done. The second core principle that I suggest should be at the root of your enquiries is that of the constitutional right of access to the courts. In that regard, I wonder if I could quote the words of Lord Reid in a case unison against Lord Chancellor in 2017 in the Supreme Court. As Lordship said, the constitutional right of access to the courts is inherent in the rule of law. The importance of the rule of law is not always understood, indicating a lack of understanding. That lack of understanding includes the assumption that the Administration of Justice is merely a public service like any other and that courts and tribunals are the provider of services to, quote, users who appear before them and that the provision of those services is of value only to the users themselves and those who are remunerated for their participation in the proceedings. It is important to my view, my opinion, to bear in mind that this is a constitutional right of crucial importance and that justice is not simply a service as opposed to all the other many important services that this Parliament has to address and deal with. If there are to be any inroads to the right of access to justice, it respectfully seems to me that primary legislation would be required. That importance of the right of access to justice goes to the root of the rule of law in a democratic society. The discussion that seems to me of the benefits and disadvantages of digital technology in the courts has to have those two core principles at the forefront and those two core principles should not be sacrificed or diminished in any way. I look forward to discussing the other benefits and disadvantages in the course of this morning's session. Thank you. Good morning, committee. The Law Society of Scotland welcomes the opportunity to assist the committee with its consideration of the use of remote hearings in the civil justice sector. As the committee will be aware, the society has a statutory duty under the Solicitorial Scotland Act 1980 to promote the interests of the solicitor's profession and its 12,000-plus members, as well as the interests of the public in relation to that profession. Everything that I say here today is intended to reflect that dual purpose. We have endeavoured over the period of the pandemic to understand what is working well and what is not working so well in relation to the necessary changes that were thrust upon all stakeholders in the civil courts. I hope that the lessons that we have learned can be of assistance to the committee deliberations. Good morning, and thank you for the invitation to give evidence today on behalf of the Family Law Association. The Family Law Association has a membership of family lawyers across Scotland and we are committed to the constructive resolution of family law disputes. Given that I represent the Family Law Association, the focus of anything that I have to say will be family law cases, I think that there is little doubt that the pandemic has given us many opportunities to modernise how we deal with family cases and civil cases in our courts. Where family cases are concerned, those deal with a large range of issues of great importance to the lives of everyday people such as divorce, the separation of cohabiting couples, the care arrangements for children, public law, child law cases such as permanence orders, where parental responsibilities and rights may be removed from a biological parent and authority may be given for that child to be adopted. There are also cases such as children's hearings. Some of these cases will involve parties who are some of society's most vulnerable people, individuals who may not have the financial resources to obtain the best technology, software, broadband connection to participate and individuals who also require support to participate and individuals who should not be at the receiving end, for example, of a decision about children and be sitting perhaps on their own at the end of a telephone or watching a screen in their home. There is no doubt that we have had many opportunities to look at how we do things and, for the Family Law Association, we do not want to go back to the past and how we have done things previously. There is concern among our members that we do not want to rush into a new system that has come in hastily and quite understandably as a result of a pandemic. We want to look at, as Ian has said, what is working well and what is not working well. My understanding is that, for family cases, the proposed default in the draft rules at the moment is that all family hearings will be in person, other than certain exceptions, and that is welcomed by our members. Thank you very much. I am sorry that I cannot be with you in person, but I am very appreciative of the opportunity to say a few words. Although I am billed as the technology adviser to the Lawyer's Justice of the Wings in Wales, I am not speaking on his behalf today. I speak of someone who has spent the past 40 years thinking about how we might use technology to improve access to justice. A couple of opening thoughts—one is a fundamental distinction that I hope might help our discussion between what I call automation and innovation, two ways that we can use technology. The first 60 years of court technology and legal technology have been about automation, essentially using technology to streamline and optimise and render more efficient our current processes. That is what most people think of when they think of technology. They take some inefficient process and they apply technology to it. However, there is another use of technology that you see in other sectors, which I call innovation, which is using technology to allow you to do things that previously were not possible. We have to be alive to this distinction. This is not simply about computerising how we work today. I would hope that it is about thinking how we might use the power of technology, for example, to extend the reach of our court system to people who today otherwise do not have access. Covid of course changed the discussion about the future of courts. I helped to find a website called Remote Courts Worldwide, www.remotecourts.org, where we track progress of countries across the world who have moved from physical courts to one form or another of remote courts. We now have 168 different jurisdictions represented on that service, which gives a strong sense of just the extent to which, in a very short period of time, we have seen court systems change. We have learned a number of lessons. The reality is that, although lawyers and judges are often criticised for being quite conservative, the truth was that, when the platform was burning, lawyers and judges proved to be remarkably adaptable and flexible. However, one thing that I have found slightly unhelpful—I put this before you because I find in these discussions that this unhelpful element often creeps in—is a slightly polarising effect in relation to video hearings, which has been the dominant mechanism used during Covid. What I am finding is that lawyers and judges either belong to the camp who are saying quite melodramatically, we should never go back, our future is transformed on the one hand, and others who are hankering and hunkering. I say that they are hankering after our old ways of working and hunkering down until the viral storm passes. I do not think that we need to take up one position or another, because it has already been hinted. We should be looking at the experience of Covid courts and thinking what works well that we might industrialise and what does not work well when we need to go back to physical courts or other alternatives. A bigger point, though, is that I do not believe video hearings are the end-game in the future of courts. Dropping a court hearing into Zoom is not a full transformation of the court model. It is still the same people, the same rules, the same teachers, the same problems and difficulties that many people identify with the civil court system. I agree wholeheartedly that we have to look at video hearings as an important first step, but I chaired, for example, the Civil Justice Council in England, our group on online dispute resolution, where we found different methods—I can talk about these shortly—that asynchronous hearing, which is not actually a hearing at all. There are different methods that are open to us, so we are at the foothills. That is my main message. I do not think that it is either a physical hearing or a video hearing. As for justice, it is absolutely correct, as the first witness observed, but I should say in closing that people use the concept of justice both in support of and in opposition to the developments. Some say that justice will be better served because we can offer far greater access and others say that if you do not have a physical hearing, you are not having a fair process. The problem that we face, I believe, is that civil process, in most jurisdictions, is too costly and too combative. It is unintelligible, unless you are a lawyer, and it takes too long. We should be open to new ways of working, and that is why I have been asking the question since the 1990s. In conclusion, is court a service a replace? Do we really need physically to assemble together, on all occasions, to solve our legal differences? Or might it be more appropriate and proportionate sometimes to convene online in a variety of ways? I thank everyone. The proposal now is that we have a discussion. Our committee members have some areas that they want to broad and probe, but the benefit of those round tables is that, when the panel members bounce off each other to have that discussion, to some extent we might find ourselves sitting and listening to that discussion, which is on-going, and that will help us in our further deliberations on the issue of remote hearings. Obviously, we have all heard what everyone said, and we want to come in with an initial comment on some of the points. I would like to ask Karen a question. You mentioned that, in most cases, it will be in person unless there are certain circumstances. It is a two-part question. What circumstances would they be? In regard to particular family law, where domestic abuse may be a factor, would remote be preferable for some? Have you had feedback on that? At the moment to answer the first part of your question, I understand that the draft rules are that, in the court of session, it will be pre-proof hearings in case management, so procedural hearings where parties are not present. Similarly, in the sheriff court, it is options hearings, procedural hearings and pre-proof hearings. Again, with the exception of options hearings, which at the moment clients are supposed to attend, although I think that there is some discussion amongst our members about whether that is really necessary. At the moment, the court rules require that clients attend an options hearing, but all of those are procedural hearings at which our clients ordinarily would not be present. Those hearings are not dealing with evidence. They are not dealing with opposed motions, where there is some debate about a particular issue that the sheriff or the judge in the court of session requires to decide on. Our members support that that is the way forward. In terms of what is working well at the moment, it is the procedural hearings that tend to work well ordinarily, with the exception of difficulty, perhaps with broadband connections and so on, aside. We are domestic abuses concerned. I can see that, for some clients, being online may be easier for them. I can think of an example that was given to me by a colleague where there was a child welfare hearing, which is a hearing in which they would discuss the care arrangements for children or some issue around the children of a relationship. There were allegations of domestic abuse in that particular case, and it was the wife in that situation, and she chose to put her camera off, and that was allowed. She found that easier not to be observed while the matter was on-going. I can see that there can be, in certain circumstances, benefits. There is a flexibility of having the camera on and off, so there are some benefits with that. For many parents, they may wish to be present when those matters are being discussed. Very often, when the parties can speak, for example, in a child welfare hearing, and for any decision maker listening to the matters that are being discussed and debated at a child welfare hearing, the behaviour of the parties can influence the decision on how they address a sheriff when asked a question, on how they respond, on how they behave. We talk about that in the evidential hearings and proofs that the decision maker will be weighing up the credibility and the reliability of witnesses. It is my belief that the sheriffs and the decision makers do that in child welfare hearings also. There can be benefits to being present. It can perhaps assist the decision maker for parties to be present. It might be that this is one of the things where the parties should be able to ask for a particular hearing where it suits their circumstances. I think that many parents want to be present, and it would be difficult for them. At the moment, for example, I can think of child welfare hearings in some courts where it is conducted by telephone. I do not think that a telephone hearing is appropriate for a child welfare hearing. At the very least, we should be using Webex for that. There are all sorts of practical difficulties where telephone hearings are concerned, but I think that for many parents they want to be present, they want to be involved in a greater way in matters of importance concerning their children. Just to say if folk can just indicate if they want to come in and Richard has indicated. Thank you very much. A couple of observations. One of the great and answered questions across the world is what kinds of cases are suitable for remote hearings. I use that as a generic term for non-physical hearings. What kinds of cases, frankly, do we generally agree, should be titled in the traditional way? We are feeling our way there. It is very early days. The thought that I just wanted to plant was what kind of evidence do we require to accept that one form of alternative is better than another? I hope that you will agree that our thinking about the future of the court system should be evidence-based. I have my own instincts and intuitions about the kinds of cases that are well suited to remote hearings and the kinds that we would be better dealt with in a physical courtroom. However, just as we are seeing in medicine where the undertake, for example, randomised control trials and the peer-reviewed studies of developments, we need to have the same rigor in law. All of you in the room today will have strong feelings and instincts. We will be hearing anecdotes from judges and experienced lawyers about what works and what does not work. They are all very helpful, but is not it time that we take a step back and say that, if we are going to be evidence-based in the future of our court system, what kinds of evidence do we need to have that allow us to move from the traditional system to new ways of working? Remembering also, of course, that the current system that we have is not the result of an evidence-based choice just where we are today. However, I do think that we need to start thinking in a more evidence-based way. I call here for us to be gathering far more data about our experiences of using courts, remote courts today—experiences from judges, from petitioners, but perhaps above all else from court users. Thanks very much, Joe. Good morning to everybody for joining us this morning. Picking up and following on from both Karen's points on the way in which we think about location, I am mindful of what Richard said about innovation and needing to think beyond what we have, rather than just replacing what we have with a digital or online system, but thinking beyond that. I am also mindful of what Ruth said about that second principle, the constitutional right of access to the courts. I would be interested to hear comments and thoughts about if we are thinking about the system that we have now, or pre-pandemic, I suppose, which is not the product of maybe any strategic decision-making based on evidence, as Richard has outlined. We are thinking of what we have learned over the past 18 months with the use of digital, the use of online, the use of telephone, the use of alternative mechanisms of being in contact. We also need to think about where something happens. Obviously, we have the physical place that is the courts. We have the physical places that may be people's homes or safe places, if they are supported by organisations to give evidence or that kind of thing. Is there something in what is very codified in the band's hoose or the barn hoose principle for children who are witnesses or young people who have been the victims of crime? Is there something that we can learn from that that maybe still allows for that very clear principle, Ruth, that you were talking about, but takes away from some of the tensions and the conflict that is, I think, inevitable in a court setting, whether that is online or in person in a physical courtroom? I would be interested. I know that other people want to come in on Karen's points about family courts. I would like to address a few of the matters that have been raised. It might help to put in context Karen talked about draft rules, etc. Just so that you are all aware, I talked previously about the Scottish Civil Justice Council, and that is a body that is tasked with modernising civil justice. They have just had a public consultation on the mode of attendance at court hearings. Attached to that consultation was a draft set of rules. Everybody was asked to respond. That consultation closed on 15 November, and we are fortunate enough to say that we had 82 responses, and all the non-confidential ones are already on the Scottish Civil Justice Council's website, if you want to have a chance to look at them. The whole point of that consultation was to air those issues. As Richard said, we don't want polarised views in there, but the role of the council now is to go through all those responses and analyse them. The council met yesterday and had a high-level summary of those responses, but now the secretariat is tasked with analysing them all, and there will be a full analysis provided to the next council meeting in January. As a result of that, the intention is that there will be court rules taking into account all those comments, which will be promulgated by the court and placed in the Parliament. That is the first point that I wanted to say. Just to put in context what those draft rules are, and another point from Karen. Yes, we absolutely do already have vulnerable witness suites where people who do not want to give evidence in court can give their evidence remotely—perfect examples in domestic abuse cases—and we will continue to expand that facility. Evidence-based, again, I absolutely agree with Richard. We so need that, and having looked at the responses to the consultation, there are polarised views, and most of them are based on anecdotal evidence. You speak to every solicitor, every judge, and they all have their own views and experiences. We need a firm evidence base if we are going to be taking that forward on a permanent basis. I know that the Scottish Government is to proceed with a remote hearing evaluation project. It is currently going out to tender. The Scottish Courts and Abunol Service have fed into that, and we are actually partly funding it, because we acknowledge that we need that firm evidence base to enable matters to be put in a firm footing for the future. Barnhouse Principal Maggie commented absolutely that the Scottish Courts and Abunol Service is absolutely very keen on implementing it. I think that one of the committees has heard evidence on that already. Lady Dorian's review of sexual offences is really touched on that, and I understand that the Scottish Government is going to be taking that forward. The Scottish Courts and Abunol Service is 100 per cent in favour of that for children who are vulnerable, who might be victims of sexual abuse, and definitely taking them out of the court system, pre-recording their evidence as quickly as possible, is definitely the way forward. We will take Alexander, then go to Ian. The legal system itself needs to be commended for how quickly it adapted to the whole of the process, because it was virtually overnight that things changed for all of us. As an organisation and as an industry, you seem to have all managed to co-ordinate extremely well. I think that Bridges' comments about evidence and data are very important as we progress, and you have already identified that there are areas that you are looking at. The area that I would like to touch on is that it is digitally excluded, because it has a huge issue to try and tap into the system that you have created, and you have talked about the pioneering issues about WebEx and so on, and we have seen some of that structure as the committee has already done in previous things, and I think that that is to be commended. There is also the whole idea of resource and funding as to how it is managed and how you, as an industry, create and support all of that so that you can include as many as humanly possible, and the reviews that will happen will identify some areas that you may even mind to capture, but there are areas also that are going to be barriers, potentially, for you to try and communicate your role and your responsibility to the general public. I think that that needs to be examined in some way as to how you square that circle, because there will be problems that you will face as we progress. I want to associate myself with Professor Shrusskin's comments about the need for data, but we at the Law Society have been calling for the Scottish courts to introduce a pilot scheme, because, as things stand, the civil courts are, by and large, not open. With a few exceptions, there are no live hearings taking place in the civil courts. We have been presented with a draft set of rules that, as I understand it, are being proposed on a medium to long-term basis to regulate the position that is going forward. Our simple position on that is that it is premature to introduce a permanent set of rules where there is no evidence base to justify them. We have suggested that a pilot scheme is introduced whereby proof hearings are held in the court of session and in sheriff courts to allow an analysis to take place about how those evidence hearings and proof hearings work, what the pros and cons of live hearings are. That has to be done in a comparison with virtual hearings. The pilot that we have proposed suggests that it takes place over the course of a year and then the issue is revisited. That would allow some empirical data to be ingathered from all court users, all stakeholders in the court system, about their experiences of live hearings. It is impossible to do that at the moment when there is a default position of no live hearings. Virtually nothing is taking place in court, apart from the inner house and cases that are deemed to have a justifiable cause for a live hearing, but they are very much in the minority. Taking up the point about digital exclusion, this is one of the major concerns that the law society has. Whether the digital poverty or exclusion issues relate to an inability to afford the hardware or an inability to use the software or simply a lack of tech know-how or poor internet connection, it is fair to say that the minority of court users face these difficulties, but it is a significant minority and it needs to be addressed. Our view is that there is no quick fix on that. Any system that is introduced has to be flexible to take account of the difficulties that those who are in that category of digital poverty, excluded for whatever reason, from interacting with the court digitally, have a means of participating effectively. Good morning and thank you for coming along to join our round table. It has been very helpful listening to the advantages and disadvantages of going digital. My question is more about the individual. Are they allowed to disagree to a default remote hearing? That could be for many reasons. They do not understand what is happening. They need a translator. It could be for what Alexander and Ian have talked about, the access to technologies or any issues that might be impeded, based on their ability to feel uncomfortable to be remotely heard. It is around that that individual's rights. Although I am a great enthusiast for technology and I have devoted my whole career to thinking about it, I do not think that you should be thinking in terms of those changes in the short term. I have always advised that a major change to a court system will take at least 10 years. People talk about court transformation projects over a couple of years. I find that entirely improbable. There are huge cultural and procedural and technical issues to be overcome. I want to stress again that we are at the foothills. Although we have had to put emergency processes in place for Covid, once we emerge from Covid, I am not of the view that we immediately rush one way or another. The observation about piloting is very powerful. That is how most technological developments in most other industries proceed. You test, you experiment, you refine too quickly to come to a set of firm rules or processes without the evidence. It seems to me to be mistaken. I urge you again to think that we are at the beginning of a process. Let's gather data, let's pilot and experiment rather than dive in with dogmatic views of the next generation. I want to say something about exclusion. Of course, there is an issue about people who are not comfortable with technology. I think that there are other issues of exclusion that are probably even more worrying. One is about literacy. Even if you have a handheld machine and you use your technology daily, that does not mean that you have the wherewithal to, for example, if you are self-represented, to marshal your evidence and present your arguments. There is also an issue of confidence. There are also cultural issues about which sectors of society feel comfortable in the kind of combat that is involved in litigation and disputes. In the UK, around 19 per cent of working adults of limiting long-term illness, impairment or disability, people for whom attendance at a physical courtroom is often very forbidding. If you look at the research of the Oxford Internet Institute, where I am, into the level of take-up of internet usage, only about 5 per cent of people in society do not have internet access. However, the problem is not for me about whether or not you have connectivity or access. It is whether or not you have the confidence, if you are self-represented, to use those systems. However, I say that balancing those against other forms of exclusion. That leads me again to the observation that surely we should have a mixed bag of facilities available and, depending on the particular court users and the nature of the case, some cases will be heard in person, some by videos, some by audio, even by pop-up courts. I think that some cases should be handled in the papers alone. We want a flexible approach and we direct appropriate cases to appropriate forms of resolution in a way that is both proportionate and just. Let's not, as I said, jump to video hearings, put the procedures in place and think dust our hands off and say that that's digital technology and the court's done next project, please. We're at the beginning of our journey here. Paul Wynruth Thank you, convener, and thank you to everyone for their contributions this morning. I think what's coming across is a sense that this needs to be evidence-led and we need to take our time with this, because this estimate might be the mother of invention, but we want to actually take time to learn from the experience, certainly, of the past 18 months. I would just like to touch on two points. On digital exclusion, I think that I would agree with what's being said in terms of ensuring that people have the right support. My concern would be often that we end up in a two-tier system even within a digital offering. Sometimes people who don't have access to internet can't do the audio visual and end up participating via a phone. That's not always the best option particularly, as Karen alluded to in terms of children's hearings and family courts, where often these issues are very emotive, can be very stressful, can be very challenging for people. Participation on a phone can often be difficult to read people's tone, and it can be difficult to get a sense of what support someone might need. I think that, if someone is being supported by an advocate or by a legal counsel, it can be often hard for that relationship in a digital setting to be well established and for the person to get the right support. I think that there are certainly things that need to be looked at in terms of ensuring that we have a parity of access even within digital offerings. There is also something that Ruth touched on in terms of the public's access to the courts and how, where it is appropriate, can the public ensure that they can be present if that is their choice to do that. Within our own public galleries here at Holyrood, they have been empty, obviously, for the duration of the pandemic. The difference, I suppose, is that we would broadcast all of the public meetings of the Parliament via the website or via Parliament TV. The difference is that we have not reached the levels in which court proceedings are all digitally available or in live time available. I am keen to understand how we protect the right of the public to be present in court as well if we move to a digital setting. Certainly, council meetings, for example, I am currently a serving councillor. We have a strange process of joining the meeting as a member of the public. We have to request to do that prior to it and be let into the system that we use. Otherwise, you have to watch it after the live event on YouTube. Again, those are issues that we need to look at so that we protect the fundamental right that people have to be present. Thanks. Ruth, I apologise that I did not see you earlier. Not at all. I have a number of points, if I may, on picking up on some of the discussion. Forgive me, I will resort to some anecdotes because it may give you a colour. First of all, I wholeheartedly agree that this committee requires a proper evidence base before it starts considering what innovations it wishes to consider going forward for digital technology in our courts. In relation to that, Kate already mentioned the consultation in relation to virtual hearings post pandemic. I would recommend to the committee that they take some time to read the responses, albeit those contain a number of anecdotes. There is some evidence base there because the responses are from solicitors, advocates, judges but also people and representatives of bodies such as citizens of vice bureau and other voluntary organisations and some local authorities as well. Digital exclusion, yes, of course, that is incredibly important. I agree with Richard that it is not just a question of having the ability for the technology, this is where the anecdotes come in and picking up a point in which Paul made as well the support that an advocate or a solicitor can give to the client. We have been able to adapt to the courts using technology, but it is frankly very difficult to have two or three screens going at once. You have one screen, forgive me for the anecdote, with the court in front of you in the boxes of the judge and your opponent. You have another screen with the documents and then you have another screen where your client and your solicitor is trying to give you instructions as things take place. I am too old for my brain to work in that way. I cannot keep my eye on three different screens at the same time. We do have to think about those things. I realise that that is just a technical micro-element, but it is something important to consider. I suggest that it is not entirely satisfactory for a client to have to give instructions to his or her solicitor or counsel through tapping into a WhatsApp message. You missed the opportunity to discuss the case with them inside or outside of court beforehand, so that that is important. Also, when clients or witnesses are giving evidence for the digital exclusion, documents are put up on screen. They have to master that technology themselves, and often they are just with smartphones rather than a big screen. That is very difficult. I would say that those are technical problems. If the committee wishes to go down the digital route, those problems are very real and will have to be solved. There is also a question that Alexander mentioned about the resources. Who resources these matters? He very kindly praised the legal profession for what it done over the last 20 months or so, and I am grateful for that. I would not be quite so grateful for the notion that the legal profession should pay for making everything digitally inclusive. Solicitor's firms and indeed my own organisation, the faculty, we have spent a considerable amount of money over the last 20 months, not surprisingly, hardwiring our premises and making sure that there is decent connectivity, but even then I get as treasurer reports day and daily of things breaking down. Indeed, I have been in court when the connections are broken down, so even chucking a huge amount of money costs, but equally that is for our members. We provide the legal service, we do not provide the technology nor do we provide the courts. It goes back to my two fundamentals about and the second fundamental access to the courts, which is a constitutional principle. Frankly, we as lawyers should not be providing the courts. We are those who assist the users and, of course, as Lord Riedramart, we are remunerated for that. I would also agree with Richard that, if you look at the consultation responses, they do make interesting reading, although lengthy reading. The faculty's response is very much to accept that we should learn from the last 20 months so far as digital technology is concerned. In general terms, if I could summarise the faculty's response, it is a bit of the mixed bag. In general terms, we can see that there is a very real place for procedural business, for example, being held virtually. The default position for contentious or substantive business should be in person and in a courtroom, but we recognise that there will be cases either way where parties want to flip it. We propose a general test of the interests of justice, which the courts are well used to using. This goes back to the point that Pam made. What about if the parties want an in-person hearing or indeed a digital hearing? We would be firmly of the view that that is a factor that the courts should attach weight to in considering whether to have a virtual hearing or an in-person hearing. We do not think that it should be simply down as what was presently proposed to the matters of complexity or difficulty. We think that the parties, the users of the court service, are clearly at the heart of it, and their views should be given weight to, whether they are given overriding weight would be a question for the individual judge who is well used to weighing these things up. It is acknowledged that the views are polarised. The faculty has tried to be, and hopefully, will continue to be, constructive in its response, and recognises the failings of our system. Clearly, there are failings, but there is a danger in just going too quick, too fast. That is why we echo the comments that we have heard around this table, that you do require a proper evidence base so that our court system in Scotland is fit for the 21st century and hopefully the 27th and the 23rd as well. Maggy Ddanke. Thanks, Jo. I like your optimism there, Ruth. If I can pick up on—I realised that this might be quite a broad issue around how the systems and processes that we have, and you mentioned in your remarks just then about judges being well used to determining whether certain courses of action should be taken or alternatives should be found. I am interested—this is anecdotal—to somebody who supports survivors of domestic abuse. During the Covid emergency legislation, domestic abuse trials have been virtual by default, but I understand that only about 10 have been virtual because usually the defence objects. How do we get to a point where we balance—in whose interests are those balances actually weighed? That is a very small point in a much broader question around does our justice system get gender, does it get racial and other diversity issues in a meaningful way? How can we not plug those into the system, but how can we be mindful of those—how can we work with the Equalities Unit, with other organisations, to make sure that we are not entrenching inequality? We look at both pre-pandemic and during the system, there are certain entrenched impacts that potentially disproportionately affect women, people of colour disproportionately affect some of the more marginalised people, whether they are victims, complainers or defendants. I am interested in how we navigate that space. At the moment, I do not think that our justice system gets gender, for instance. I think that we have an opportunity here to at least try to address that. Kate, then I have Fulton, Richard and then Karen. I would like to touch on a few things starting with you, Maggie. We have the judicial institute, which is a renowned organisation for training the judiciary. It certainly gets training on diversity racial issues, so that is part and parcel of becoming a judge. You go through all that training. Also, if the Scottish Court Tribunal Service and the Scottish Civil Justice Council are going forward with any new initiatives, we compile equality impact statements. There is a full one, particularly for the mode of attendance for hearings. The Scottish Civil Justice Council is going to update that in the light of the responses that are received. We take our equality duty very seriously. Digital poverty is absolutely key to flexibility, and we do what we can. We need to be better at it. We provide online resources—that is okay if you can access them. We have written information. We are developing a suite of videos so that people can see what is required to attend online hearings. Our court staff are always accessible to answer any questions. I think that we all need to be better at this. I know that the Lord Justice Clarke has mentioned at one stage having digital zoom booths in Singapore, where somebody can go into a court premises and use court technology to access a hearing. Should we be looking at that sort of initiative in our local libraries? That takes on resources, and I hear what Ruth said about that. The Scottish Court Tribunal Service has been well supported by the Scottish Government during the pandemic, and we have strong digital foundations that we did not have before. That means that we can continue with our hearings in the civil. You will all be aware of the remote jury centres model for criminal business and tribunals. That is how we are managing to get business done. Obviously, we need to keep up-to-date with that resourcing. I know that Ruth said that it is not for the legal profession to pay for that, but I would challenge that. I would say that the legal profession has a duty. For example, I attended a judicial review hearing remotely yesterday. There were two QCs who participated remotely. It was a remote hearing, and they were in the advocates' consulting rooms in the High Street. The internet connection was not good enough. We had to postpone the hearing, and they had to move into the advocates' library, which had a much better internet connection. The lesson for that is that I know that advocates are aware of that, and that work needs to be done. How that is funded is not for me to say, but it is an issue for everybody for the resourcing going forward. I was not suggesting that lawyers should not resource their own offices. What I would bulk at is the idea that we should resource the courts, because that is not our job. Of course, there are issues, but those issues with connectivity apply not just to advocates or solicitors, but to the individuals who use the courts as well. Who pays for them? I absolutely agree with that, Ruth. The other thing that we have come round to is who makes the decision as to whether it should be an in-person hearing or a remote hearing. That is a judicial decision, and they take into account all the circumstances. They will take into account if a person cannot have access in some way to any digital connectivity. I know, for example, that the inner house has had an in-person hearing because there was a party litigant who had no access. That is our most senior court, when it is three judges. The key for everything is flexibility. That is a good thing about having rules, rather than primary legislation, because rules can be changed quite easily in the life experience. It might be that we need new guidance or amendments to rules, and that is one of the advantages of putting rules and procedures in place in that way. We will go to Fulton, Richard, then Karen, then I think Karen and then Pam. Thanks to the panel for the information that you have provided this morning, I think that it has been really helpful. My question is quite a broad brush one, and it is something that everybody has already touched on. It seems to me that even when we are talking today and when I am dealing with constituents on this issue, I am sure that other members will have felt as well that, for some people, the digital courts are working well and, for other people, they are not. Probably the vulnerable witnesses that others have talked about are a really good example of that, where some vulnerable witnesses are benefiting really well from using digital technology. We can think of some examples, perhaps, where there is an abusive relationship and the witness does not need to meet the abuser. In other situations, perhaps vulnerable witnesses are being more excluded from the justice system because of the online and remote work. How do we get better at identifying cases or individuals where remote hearings are going to be beneficial in allowing more access to justice and how to identify those where it is not? I know that that has been touched on, but I am thinking, is there any work that we can do there? Is there anything that the committee can look at to try and help to establish a framework, if you like, on how we can identify that? I am happy with any MD answer, convener. I want to make a couple of observations about technology. Consider the technology that I am using, or we are all using today. This is the worst technology that is ever going to be from now on. Technologies are getting better and better. Indeed, our machines are becoming increasingly capable. Scarcely a day passes that you do not hear news of some kind of system technology app breakthrough, start-up and so forth. I know that people are often, I suppose, excluded from debate about the future of technology, but I say to you that we are living at a time of greater technological advance than humanity has ever witnessed. What we are doing a little bit today, which I forwarded at the beginning, is following into the trap of thinking that this is a discussion about video hearings or physical hearings, not taking account of the reality that, during this decade, we are going to see the emergence in a major way of artificial intelligence techniques being used in courts around the world. We are going to see the emergence of what I call asynchronous hearings. You are going to be seeing greater use of blockchain for recording hearings. A lot of those notions, I suspect, will be rather foreign to you. I want it, if it is not improper to suggest this, that I do this a lot in England. I am more than happy in my own time to provide briefings to MSPs, judges and officials on what technologies are coming over the horizon, because you have to be careful that you are not thinking about putting in place technologies, say, by 2025 that would have been good in 2021. The technologies are advancing and there are many more possibilities out there than video hearings. In relation to all of that, I look at people's faces today a little bit, all very friendly, but a little bit grim. It should actually be exciting. Goodness me, we face huge problems in our justice systems around the world. Purely, we should be excited by the possibility that some of the problems that we face, if with sufficient ingenuity, imagination and innovation investment, some of those problems might be overcome by the technologies that are overcoming problems in medicine, overcoming problems in health, and in education. There are overcoming problems in all aspects of society, so we should not be looking at this as a problem. Oh, here are the various things that can do. I maintain that this is a long-term process that we are involved with, but we have to take a long-term view of the developing technologies. I would like you to have the confidence to look at this with energy and enthusiasm and excitement, rather than thinking about what are the limitations here and that this is all doom and gloom. In my 40 years of working in legal technology, I have never been more excited because the technologies are now emerging to help us to solve some fairly significant justice problems that we have had for years. In summary, the technology is not standing still and we should embrace this rather than resist this. That was a wee joke for us all, Richard. If our faces are all looking a bit gloom, it is mainly because the weather was a bit cold as we came in this morning. I am going to go to Karen, then Karen, then Pam. Really following on from what Maggie was discussing, but maybe getting a bit more specific here, but effective communication underlies the entire legal process. How will you factor in opportunities to identify impairments and make adjustments for disabilities? Thinking of the deaf community, for example, and Kay mentioned equality's duties. Will this lens be used for the evidence and any consultation analysis for any advancements? Karen, could you repeat the last part of that? Will the lens, the equality's lens, be used for the evidence that is being gathered? And will it be used in any consultation analysis for any advancements? I would certainly... It's obviously the consultation that's on going at the moment. You would hope that matters of equality, looking at people's disabilities and so on, would be looked at. I mean, I'm very conscious on a personal level, my own father's death, and I'm aware of the many, many difficulties that he has dealt with during the Covid pandemic, mask wearing, not least of it. But I'm conscious that when I think of what we're doing at the moment, that many of the technologies that are available to us, he would struggle with much of that. And it is something, obviously, that needs to be addressed. And I'm sure the consultation process that's on going at the moment will have to look at all of that. And as others have said, for some who have disabilities physically going to a courtroom is a difficulty for them, and actually for those people, the online hearings perhaps work better. So yes, I would imagine that that would be something that absolutely needs to be looked at when we consider how we're going to take this forward and how things will be in the future. I share Richard's enthusiasm about technology evolving and that this is the worst we'll have technology as. Now, that's what we've talked about today, technology, and we've talked about the advantages and disadvantages of going remotely. But what about the access? Because we know today that when we go on meetings on Zoom or anything we do, access falls. It could be wi-fi connection, it could be everything. So what about the connections and where would the onus lie here? Because if somebody did not turn up to court, there would be penalties and there would be obviously, you know, wasting court time or it could be obviously a valid reason. But what would happen if they can't connect? And what kind of reasons or what kind of test would be applied to that? And this question is for probably Kaye as well, obviously looking at the five-year digital strategy, but also with Richard as enthusiasm talking about technology evolving. What about the connection? I had practical experience of running a proof hearing where we had a witness giving evidence from Morocco and it was a serious case where credibility issues were very much at stake and her internet connection simply didn't work. And within 30 minutes of the proof starting, which was scheduled to last three days with Senior and Junior Council, the sheriff had to abandon the case and basically refixed the proof hearing for much later in the year. So that is a practical issue and there is no easy answer to that in the sense that the witness was giving evidence from abroad, she couldn't travel back to Scotland to give her evidence in person and there was really no option but to adjourn. So without better internet connectivity, that is a practical issue that could arise at any stage in a case. I've also had a situation where a sheriff principal presiding over the court at home had a very, very poor internet connection and had to adjourn in the case. I think that those issues are being addressed and I suspect that that will not be the norm going forward, but they do arise and the court just has to be flexible in taking those matters into account. Taking Fulton's point up in terms of those who have difficulty with interacting, I mean that there's two categories. There's vulnerable witnesses who I think it's been touched on before and you know the Vulnerable Witnesses Scotland Act part two of that deals with measures that can be put in place in civil proceedings and it's really a question of flagging up to the court whether someone would be deemed to be a vulnerable witness and then things like the use of live television links or the use of screens or the use of a supporter or indeed taking evidence by commission. Those are measures that can be put in place to assist that particular witness to give their evidence in the most appropriate manner. But there's the other category who are not necessarily vulnerable witnesses, but they simply have the difficulty of interacting with the court system on a digital platform. Again, those are issues that really need to be flagged up. There needs to be a formalised process put in place to flag up and highlight those difficulties well in advance so that the court is aware of any potential issues that are going to arise and can take appropriate measures. Those are discussions that would normally be held at procedural hearings and if necessary, the court can take cognisance of that and say, right, well it's not appropriate for that particular person to have to interact with the court digitally and they should be allowed to appear in person whether it's procedural business or whether it's evidential hearings. So it's just a question of making sure that the court is structured in a way that it's flexible to take into account all of these different possibilities. I would agree with what Ian Smith said there. What would normally happen is that there would be a discussion at normally a procedural hearing or a hearing in advance of the substantive hearing and it's really for the judge to decide what is appropriate in the interests of justice and the judge in that circumstance will take into account the nature of the case, the public interest and the ability of the parties to effectively participate in the proceedings. So that's how that is taken into account. I'd like to go back to the effective communication point that Karen mentioned and Karen addressed. I would just give a reassurance that particularly we're looking at the remote, the attendance of remote hearings. The Scottish Civil Justice Council did compile an equalities impact statement, it's a very full document. They will be updating that before it comes back to the council. And just to be aware as well, they're also preparing a business and regulatory impact assessment as well. So they both go hand in hand. These are documents that need to be compiled and the council will need to look at those when they're deciding what appropriate rules should be put in place. For access, where does the onus lie on how people can get access? Well, one thing that is inherent in the system is that there are practice sessions. So before any hearing is taking place, the clerk of court will make sure that all the participants are in a practice session and hopefully at that point some of the connectivity issues will arise. And that's certainly what happened in the judicial review that I observed yesterday. There was quite a few practice sessions and then the decision was taken right. We're going to have to do something differently here and it did proceed as was necessary. But if it hadn't been the practice sessions, those issues would not have been resolved. A few points just to mention. One of them being going back to what Richard was saying about these are exciting times and I think there's no doubt about that. I think it will be very interesting to see how the technology develops, how we will be working in the next five to 10 years. What is somewhat discouraging to go back to the just to mention the telephone hearings as we already have a slightly better forum, the Webex hearing, but telephone hearings continue to be used. I feel very strongly and certainly some of the members who have contacted me with their views feel very strongly that these just simply practically don't work. If you've ever been on a court hearing that takes place by telephone, you can't tell if you'll lose a party during the call until perhaps someone addresses them. It could be very difficult to keep track of what's going on. You can't read people's emotions, how they are reacting, whether they are bored or interested in what you have to say. There are all sorts of issues around that and I think that really we need to be moving away from that and using the technology that's available to us. Just quickly on the open justice point, I might be stretching it somewhat to consider myself a young lawyer and probably somewhat passed that now, but my years of training are close enough in my own mind and open justice is very important for members of the public but also for those of us who are learning to be lawyers, learning to be solicitors, learning to be advocates. I know that I personally learned a tremendous amount being sent down to court for the most basic hearing, but you've got to listen to and watch your more experienced peers addressing the sheriff or indeed sitting in a court of session action addressing a judge on matters. I raise that only as a very minor point. It's just something to take account of when looking at how we will deal with matters going forward. It's helpful for the more junior members of the profession to see hearings being dealt with. It's a forum in which I have learned and given that younger members of either the bar or younger solicitors are not currently able to watch hearings in process. It's something that's difficult for them and there are certainly learning opportunities in just sitting in the courts and also just attending the courts. I would say that there is a collegiate approach in the bar and certainly in the local faculties where you have the opportunity to mix with other lawyers to perhaps approach more experienced lawyers to discuss a case and just to get to know older members of the bar. Again, as the technology develops, there may be ways to address some of that. Those are just minor points, but it's something to consider when we look at what we'll be doing going forward. Thanks, Ruth, and then we'll go to Richard. There's a final contribution. Just a couple of matters that we haven't really touched on, but I think that they are nonetheless important in this general category of access to justice, which I mentioned at the start of the session. The first is witnesses rather than parties to the proceedings. It seems to me and my experience that taking evidence from witnesses virtually is suboptimal at best. It's very difficult to know if they are on the right page, for example. It's very difficult to make sure that they are alone. They're not being tutored, and of course they're given all the wise and wherefores beforehand and the rules, but that seems to me something that we have to consider. There's also the empirical evidence lacking as to whether or not it is more effective and efficient in terms of getting to the truth to have evidence given virtually or in person. I am aware that some research has been done, but it may be of an anecdotal, nature-run and empirical nature of expert witnesses, for example, who, down south, indicated that this must be anecdotal, indicated that they felt that they had an easy time of it. Some people might think that that's a good idea around having a hard time, but it goes back to the general solemnity of the whole proceedings. You'd have to look at the experience of witnesses. The other matter I'd wish to pick up on is the final matter. It reflects what Karen was saying earlier. Training is absolutely incredibly important. We do exercise collegiality in the bar. We consider that at the root of what we do. We learn by seeing and by doing. I mentioned the consultation responses earlier. Our junior junior members—those who are five years and under who called—have a very powerful response in relation to their experiences and what they think about virtual hearings. However, there is another aspect that I think that you might also wish to consider, having in regard to the idea of going forward into the future and technologies going to evolve, which of course it will and will be able to innovate. That also segues into the resources issue. It may well be that only the well-resourced firms who deal with white-collar type work are able to afford that. I wonder if we end up having big city firms able to provide legal services where, as we know, Scotland is crying out for the rural solicitors to continue in practice and they are under increasing pressures. If we are going to advance in this way, you will also have to consider the future of the solicitor side of the profession because it may be that the big law firms see a business opportunity there to the exclusion of the smaller, more locally-based law firms. You may have those who do not live in the big cities having to travel in or dial in to see their solicitors, and that may not be satisfactory. Thank you very much. Time is tight, so I think that our final contribution will be from Richard. I wonder whether, Richard, we have come at this at a time when we are hoping to be able to influence what happens going forward rather than just to be a spectator in what is happening. If you could touch in your final contribution on what it would mean to have, for instance, asynchronous hearings and what that would mean in practice, but not your final word. I thank you again for involving me. I will lead into this by the question of connectivity. Of course, it has been a very practical issue. If broadband is not sufficient and connections fall, the whole process has been very difficult indeed. This is an example of the connectivities, the worst that we are going to be from now on. It is not just for law, it is for health education and right across Scottish society you will find that broadband will increase. By 2024, for example, you would not be having the discussion in light of 5G technologies and so forth that we are having today about pro-connectivity. The way that we sidestep the issue of connectivity in any event—this takes me to the point—in the civil justice council group that I chaired was that we came up with the idea of asynchronous hearings, communication synchronous where people need to be available at the same time to communicate, a phone call, a meeting and so forth. Asynchronous communication is where you do not need to be available, an email, a text message, a WhatsApp. You send a message and receive a message at your own convenience. Current court hearings are synchronous. Everyone has to be available. Whether it is virtual or in a courtroom, you have to be available at the same time. The idea of the asynchronous hearings, which we advocated for low-value civil cases, is that the evidence and arguments are submitted electronically by the parties. There is some kind of online discussion, almost like an exchange of emails, moderated by the judge. The judge then comes to his or her conclusion and determination in like form. There is no oral evidence, there is no physical hearings, there is no virtual hearings, there is no question of connectivity, there is no question of taking a day off work. Here we thought that there would be a proportionate way of resolving very straightforward disputes. Every year in eBay, there are 60 million disputes among traders, 60 million. Almost none of them are sorted out by lawyers and courts, they are sorted out by asynchronous process. I am not saying that this is the answer to all disputes, I really am it, but I want to put this on the table as another possibility, an illustration of something that, for example, avoids the connectivity difficulties. That proposition that we put forward was endorsed then by our Lord Chief Justice, by our Lord Chancellor. It is now part of Government policy down here. As I stress, it is not the last word, it is just another possibility in this buffet that we have of options in improving our system. I think that that is a good place for us to finish there. That has been a really useful session. Clearly, we are wanting to influence how this moves forward as a committee, so you have certainly given us lots to think about going forward.