Authors:Roger Smith
Last updated:2023-09-25
Digital delivery and access to justice
Louise Heath
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One of the pillars of the re-conception of civil legal aid in recent proposals for a new National Legal Service1Set out by Roger Smith and Nic Madge in ‘Proposing a National Legal Service’, April 2023 Legal Action 10. is technology. That, in its turn, requires coordination with the three other pillars on which policy should be based: strategic leadership, comprehensive services and sustainable funding. Here, Roger Smith discusses its potential.
Technology: back to front
Additional reliance on technology may need some justification. The Legal Education Foundation, having prioritised technology in its first strategic plan, subsequently removed it from its second. Its assessment was that: ‘Information technology is not a magic bullet, but it has an important role to play – especially [in] the less “glamorous” essential infrastructure.’ Technology undoubtedly has a role in the back office. Indeed, both private and not-for-profit (NfP) providers only survived the interruptions of COVID-19 through their rapid development of online working.
Technology is, however, in danger of bursting out of the back office and into the front. Our proposals for a National Legal Service assume that technology can transform the delivery of legal aid in a number of ways. Indeed, since almost every other area of our society is generally accepted as being impacted by technology, it would be extremely odd if legal aid were exempt. We argue that legal aid needs to be disengaged from its traditional means of delivery. The point of legal aid should be to ‘improve the ability of people to enforce rights, resolve legal problems and settle disputes’.
There are at least five specific ways in which technology can help attain this aim:
Incorporating Citizens Advice and other online agencies into the legal aid scheme as the first line of information, initial advice and referral.
The development of online tools to assist those who can use them. We call this ‘Digital Plus’.
Online assistance to the delivery of legal services as one of a suite of potential answers to ‘advice deserts’.
A national challenge programme to fund innovation and development, such as exists in the United States.
New ways of assisting hard to reach communities.
Digital inclusion and exclusion
Let’s deal with the issue that will arise sooner or later. What is the impact of digital exclusion? Is it of such a magnitude as to scupper online possibilities of improving access to justice? The answer is complicated by assumptions of various forms of capability – digital, linguistic, etc – but there are some overall battle lines to survey. Some practitioners remain deeply sceptical, and they have the benefit of practical experience. The guru of the legal technology field, Richard Susskind, is, however, of different mind. In the new edition of Tomorrow's Lawyers: an introduction to your future, he is typically bullish: ‘Less than three per cent of British people are effectively excluded from the internet whereas the majority of citizens in England and Wales are unable to afford most of the services of lawyers and the courts.’
Let us balance Professor Susskind’s heady assessment with the more sober approach of the Office for National Statistics (ONS). It announced in 2019 that: ‘The number of adults who have either never used the internet or have not used it in the last three months, described as “internet non-users”, has been declining over recent years. Since 2011, this number has almost halved, but in 2018 there were still 5.3 million adults in the UK, or 10.0% of the adult UK population, in this situation.’ The ONS quoted Lloyds Bank with a higher figure of 20 per cent. Lloyds was concerned with the wider concept of ‘digital skills’ – people’s capacity actively to use the internet – rather than whether they can just access their Facebook account.
The policy lesson? Digital can help significant numbers, but provision must be made for those excluded. No one has any hard data, but a reasonable operating assumption might be that for the population financially eligible for legal aid, digital exclusion affects – very roughly – about a quarter. So, it is worth developing digital as a means of communication as long as we retain other channels of communication that include face to face. Thus, there will still be a continuing need for physical delivery by Citizens Advice, Law Centres and legal aid practitioners. But there is a major value in developing digital.
Digital delivery of legal information
A considerable amount of free legal information is currently available online through websites of various kinds. We should examine how the current patchwork of provision might be improved. This is where an international, national and regional strategic approach would show real dividends.
Most websites giving information on ‘social welfare’ or poverty law are pretty straightforward, and the big national providers like Citizens Advice and Advicenow, and specialists like Shelter and the Joint Council for the Welfare of Immigrants, follow much the same style. Sites have improved design and accessibility but the information is still largely displayed statically. You can, however, see the beginnings of an interactive approach: guided pathways, links to further information, illustrations of problems, interspersed videos and so on. That is apparent both here and, even more, in overseas equivalent resources – worth a look for comparison purposes – like Illinois Legal Aid Online (ILAO) in the US, the People’s Law School in Canada and Justice Connect in Australia.
A major foreseeable development will be the use of the chatbot. A conversational interface with complicated information must, you might have thought, be a winner, but most examples to date have been pretty crude, both inside and outside the access to justice field. The most publicised access to justice bots are deployed in the US: the heavily hyped commercial product DoNotPay, developed originally by Joshua Browder to fight his London parking tickets, and, from the NfP sector, Renny from Rentervention in Chicago. Neither are, to be honest, that impressive.
More interesting in their implications are commercial AI-powered chatbots, of which ChatGPT is but one well-publicised example. These can convert complicated information into a simply understood conversational style. So, sooner or later, someone is going to replace a ‘passive’ legal information site with a ‘talking’ responder. And that responder will look human. Some commercial examples are impressive. Take Sophia: she has quite a YouTube fanbase; you can catch her on a date with Will Smith; and the Saudis have given her citizenship. She has been carefully crafted: her face is the designer’s mash-up of Queen Nefertiti, Audrey Hepburn and (so he flatteringly says) his wife. It has been created in Frubber, ‘a proprietary nanotech skin that mimics real human musculature and skin’. Watch carefully and she is distinctly creepy, but you can see the potential.
This all has a long way to go. And we should certainly not emulate the hubris of the Ministry of Justice in seeking to lead the world in the digital justice space. But we do need to watch developments and to invest when the time is right. The use of AI has plenty of problems, such as accuracy, but they would all seem ultimately fixable.
Self-help ‘Digital Plus’
ChatGPT can help you with tasks as well as give you information. This is very simple at the moment, but it could help you plan the creation of a newsletter and give you prompts on its timetable. This crossover from information provision to case management could prove vital. There are already examples in the US. Upsolve helps you through the process of bankruptcy. Citizenshipworks assists in the process of an immigration case.
The most obvious use of the interactive capacity of the internet is less ambitious. There have been various moves to use document self-assembly. In this country, three separate organisations developed dynamic, individually fillable review or appeal letters in relation to now demised personal independence payments. The US has run with the potential much more seriously.
The best example of interactive provision remains the Dutch Rechtwijzer. It still stands head and shoulders above anything else that has been developed in this field. It has achieved its own rather good description on Wikipedia: ‘The [Rechtwijzer] process … has three stages with two main components. First, the optional diagnosis, which is a guided pathway to information and advice to those considering separation. Then there is the mandatory intake, where a series of questions are answered to establish the needs, interests and first thoughts, in terms of solutions, for both parties. This is followed by the mandatory dialogue, where both parties collaborate on model solutions step by step to complete their agreement. There is the optional help phase, where any of the two parties can request mediation or adjudication services. Last, is the mandatory review, which is done by a certified legal professional to establish the fairness of the agreement.’
Thus, the Rechtwijzer has integrated automated assistance with the process of divorce together with the possibility of individualised assistance. There are other examples of this. Hello Divorce is run by a US divorce practitioner and stitches together packages of automated assistance through video and personalised advice. And, beyond that, you have the growth of other ‘blended services’ with automated and personalised content.
Another exciting but rather different development, of which British Columbia’s People’s Law School is a global leader, is the use of digital communication to reach new audiences. The school has taken the Zoom conference and really run with it. You invest in presentation; you choose your presenters; you change the nature of presentation – in the words of its executive director, Patricia Byrne: ‘We chunk up our 60 minutes into different bits and signal what we are doing in each. Then it is really important the moderator sums up after each segment, making it easier to follow and digest.’
Back in the 1970s, Law Centres led community outreach with meetings in tenants’ halls and claimants’ unions. Digital prospectively provides a way in which hard-to-reach communities can be targeted, with, for example, language-, area- or subject-specific topics organised by Law Centres, Citizens Advice or other advice agencies. This is begging for a regional approach.
Assess, experiment, implement
Technology is, undoubtedly, not a magic bullet, but it seems likely to prove a valuable silver one. To bring legal aid into the modern age, we need to go through three stages. We should assess what is available around the world. We should have a strategic body to lead that process and encourage all stakeholders to participate. We should experiment. We would do well to follow US practice and allocate annually something like one per cent of the legal aid budget to funds that allow that. Above all, we need strategic leadership and commitment from ministers, ministries and associated agencies. And the aim? To pounce at the right time to implement what we have discovered works; and to prove that technology can help us to reverse the decline of legal aid and demonstrate its social value.
1     Set out by Roger Smith and Nic Madge in ‘Proposing a National Legal Service’, April 2023 Legal Action 10. »