Roger Smith talks at the openJustice launch party this week on the future of access to justice in the UK
openJustice is a welcome addition to the groups lobbying for access to justice. And it has one great advantage over many of the others: it can creditably present itself as independent of the practitioners and professionals who are themselves funded by legal aid. We need a new player in the debate with lineage in discussions of democracy, constitutions and human rights. We need this for credibility at a dangerous time and we need it for support of a wide coalition for access to justice that goes beyond the usual suspects. You can see the need very clearly in reviewing the current state of development in relation to technology and such access.
January is the month for predictions. Journalists and commentators swarm into print and on the web to knock off a piece about what is coming up in the new year. For the subject of technology in the context of access to justice, this is actually remarkably hard to do. For a start, it is difficult to get the time scale right. Even in the big corporate firms, there may be deceptively little change visible in the next year, though under the surface movements of a tectonic nature are in progress.
We are working to a world in which you can ask Siri or Alexa or some other virtual creation the answer to your problem in plain English and get an answer.
Making it particularly difficult for England and Wales is the fact that technology combines with legal aid cuts radically to threaten the pattern of provision with which we have been familiar. It is pie in the sky to think that civil legal aid and legal advice will ever return in the form that they were before the LASPO cuts. We will do well even to defend legal aid to its current extent. Take what view you like of Brexit, it will not lead to a flood of new money into public services. Similarly, take what view you like of Jeremy Corbyn, he is unlikely to head a high spending administration that prioritises legal aid in the next decade. However hard it is, we have to accept that legal assistance to those on low incomes will be provided by a mosaic of provision cobbled together from a wide range of sources or not at all. The upside of this politically realistic assessment is that we will have to deliver on the insight of campaigners in the 1970s: we need to take an approach to provision based on the notion of access to justice - a holistic attempt to deploy a wider range of elements than simply traditional legal aid. Public funding - and in particular public funding in the traditional form of legal aid to largely private practitioner lawyers - can only be one element - and a much smaller one - in the mix that makes up an adequate pattern of service. In the tsunami of austerity cuts, the potential of technology provides one of the few possible islands from which we can rebuild acceptable levels of assistance - and, indeed, resistance. And there is a further problem consequent on this diverse approach: it will be hard for any one body or institution to provide coherent leadership across the board.
In this new normal, the picture of what is going on becomes even more difficult to piece together. An assessment on the level of access to justice can no longer be a simple read off from levels of legal aid scope and eligibility. What is more, some elements may advance and others retreat. In the forthcoming year, we will, overall, see some gains but there will be slippage, disappointments and reverses. And it is no help to puzzling out what is happening that commentators, developers and some practitioners have woken up to the newsworthy potential of technology. The result is that there is a blizzard of coverage of apparently breathtaking advances, some of which do not live up to the hype if you actually take the trouble to test what is being offered.
So, straining our eyes through the mist, what can we see advancing towards us in 2017?
First, we should mark the onward advance of artificial intelligence - even though there is likely to be close to zero impact on poverty law this year. The big corporate firms are getting into AI partnerships - and for a reason. AI in the law is at the same sort of stage as it is in relation to driverless cars. AI will transform much commercial practice and, in the process, much of the legal profession in ways which are as yet unknowable. That may well include areas of poverty law but not this year. So, we cannot forget about AI as potentially the most important contribution of technology to legal services but, at least for those on low incomes, we can put it on the back burner for this year.
The Ministry of Justice really needs to flog off those courthouses.
Second, and much more relevant to the provision of services to people on low incomes, will be increasing experimentation with forms of virtual legal practice and law centres. Technology offers the opportunity significantly to cut costs and to leverage existing provision. A practice based wholly or largely around Skype or some equivalent offers the opportunity of much reduced costs. And this is not an either-or. Those with longer memories will remember the ill-fated experiment with the ‘hub and spoke’ model of provision much extolled by the firm of Deacon, Golden Green before eight of its partners were bankrupted. The idea was that you could put your experts at the centre of a web of outlying low staffed offices. Technology makes that much more possible, even allowing the elimination of any physical offices. There are developments like Siaro that can cut down the time taken to see clients by getting them to complete questionnaires online and using the information to populate dashboards guiding the advisers that they ultimately see. We will see much playing with different models of provision in the coming year - both within the commercial and non-profit sector. The potential of automated document assembly has much further to run.
Third, 2017 should see some advance in how we can use the net to provide information and advice. Welcome the introduction of the ‘chatbot’ and its variants. We are working to a world in which you can ask Siri or Alexa or some other virtual creation the answer to your problem in plain English and get an answer. The content of current examples is not up to much but there is enough to suggest the potential. Furthermore, we still have far to go in using the interactive capacities of the net for information giving. This is the world opened up by the Dutch Legal Aid Board with its Rechtwijzer programme and taken forward by MyLawBC.com - an inspiring use of the technology to transform the provision of information. It is a pity that here Relate seems to be rowing back from its foray into this approach.
Fourth, for better or worse, England and Wales will see a decisive move into online determination for small claims. The Ministry of Justice really needs to flog off those courthouses. The implications of this for advice provision are, as yet unclear. British Columbia’s equivalent online programme is developing a Solution Explorer element that potentially blends online determination into the giving of advice and information. Similar imagination may be lacking here but advice providers are going to be challenged to reverse engineer their online provision into that provided by the court service. Interestingly, there is some suggestion from The Netherlands of consumer resistance to paying for the Rechtwijzer’s online dispute resolution processes. The Court Service has yet to convince everyone that it can deliver an online small claims court that does anything more than cut costs and reduce services. The year will show us a bit more clearly whether our online small claims court will be a world beater or a complete turkey. Don’t hold your breath.
Fifth, technology offers the opportunity to cut the costs of training and education both on entry to the legal profession and for those already advising. It also opens up the possibility of providing ‘just in time’ public legal education which might just be the answer to the yawning whole in family law advice. A university in Canada, Ryerson, is experimenting with a largely online equivalent to the Legal Practice Course. The year is likely to see more experimentation with what can be done.
The problems with technology are well known. Even the government admits that 18 per cent of the population cannot or will not use online provision. But, let’s be clear about the question to be posed in 2017. It is not whether legal aid in the traditional form of private practice would be the best way of providing legal services to those otherwise unable to afford them. The issue is how, facing a realistic assessment of what is available, we can use technology to construct a network of provision which provides the level of legal advice and assistance to which people are entitled - even in an age of austerity. The extent to which we shift the debate to reflect this is perhaps the big unanswered question of the year ahead. Hopefully, the formation of openJustice will increase the chances of widening out this debate.
This is a lightly edited version of an article that first appeared at http://www.legalvoice.org.uk/changes-bring-hope-hype/.