Richard Miller, Head of Legal Aid at The Law Society, said of our Access to Justice Campaign, launched in September 2104, “I am very keen that [it should] include guidance to our members about what they can do to make services more affordable to clients; and that, of course, includes how they can use technology either to deliver old services in new ways or to find new services to provide.”
Neither the scale of the challenge nor its seriousness should be underestimated. On the one hand, the Legal Aid, Sentencing and Punishment of Offenders (Laspo) Act 2012 sliced £330m out of the annual civil legal aid budget; on the other, according to Oxfam, one in five of the UK population lives below the poverty line. This is a toxic combination for us all, not just those, mainly recipients of help but also providers of services, who are directly affected. In the Law Society’s view, in the absence of access to justice, people are unable to have their voice heard, exercise their rights, challenge discrimination or hold decision-makers to account. Access to justice is the foundation of a fair and democratic society and an attack on those foundations is an attack on us all.
Can technology really make a difference?
In their report Face to Face Legal Services and Their Alternatives: Global Lessons from the Digital Revolution (January 2014) Roger Smith and Alan Paterson explore “the extent to which telephone ”˜hotlines’ and internet-based systems may replace face to face publicly funded legal services in the future”. The two year study, funded by the Nuffield Foundation, was carried out against the backdrop of the financial crisis and swingeing expenditure cuts to the legal aid budget. The report has since been updated in a series of papers which are summarised and published in full on the Legal Education Foundation website (see Digital Delivery of Services to People on Low Incomes).
Initially Face to Face strikes an optimistic note that is surprising. The authors describe the deployment of new technology in the delivery of legal services as “dizzyingly rampant” and suggest that because of this, and despite financial cutbacks, we are living in an “exciting time with wonderful possibilities”. Amongst the possibilities that have become realities they cite apps for road accident incidents; a wealth of free information and assistance driven by the opportunity to garner more complex and lucrative cases (described as “winnowing” or “gleaning” provision); legal aid authority websites with basic legal information and advice, document assembly packages, virtual law firms and online dispute resolution. The Dutch Legal Aid Board’s Rechtwijzer (conflict resolution guide) site is singled out for attention. It covers consumer law and relationship breakup in depth with less comprehensive coverage of employment, tenancy and administrative law. In the opinion of the authors it shows “clear signs of being a game changer and far in advance of anything else in the world in terms of its dynamic and client-centred approach.”
However, Smith and Paterson recognise the limitations of their study, in particular their lack of primary research and the inevitable difficulty of comparing like-with-like in conducting international comparative studies. They recognise that the development of a personal relationship between an adviser and a vulnerable client can often be necessary to progress a matter effectively (the need for “warm bodies” to supplement cold technology) and they acknowledge that technology “may simply underline the exclusion of those already the most marginal”. They even sound a note of caution about Rechtwijzer, pointing out that “we do not yet know how the current site will be rated by those using it in practice.” They end with a final warning. “The fate of NHS Direct ”¦ stands as a silent ghost spoiling the banquet of anyone celebrating the wonderful future predicted by new technology.”
In Digital Delivery Smith retains the mix of excitement and realism that characterised Face to Face and notes that since January there have been “significant developments” and innovation driven by “money allied to imagination and technological opportunity”. The outcomes from these developments are an increasingly professional, interactive, mobile and integrated internet environment for legal services.
The role of the internet
Smith has put forward nine propositions concerning the internet and access to justice:
- digital exclusion is real but not entirely disabling;
- it is the age of Aquarius: innovation is everywhere;
- law is national but technology is global: we can learn from other countries;
- there is convergence, both in technologies and providers;
- the future is interactive and mobile;
- the internet opens the possibility of end to end provision from diagnosis to resolution;
- the internet opens new opportunities for advancing skills;
- NGOs can have a leading role in development; and
- we need to re-engineer legal aid.
This is important, seminal, work but, as Neils Bohr famously pointed out, “prediction is very difficult, especially if it’s about the future.” How then can we evaluate these claims? There would seem to be at least three, non mutually exclusive, ways. The first is through further research, the need for which Face to Face describes as its “constant refrain”. Although research can only ever offer a clearer view from a rear view mirror it discloses direction of travel if not future prospects. Hopefully more research will be undertaken in due course. The second is to build rather than predict a digital future. For example, Smith argues that 1 per cent of the legal aid budget should be allocated to innovation; that MOJ should introduce national annual awards for digital legal services and pilot an online dispute resolution programme from 2016 and so forth. We don’t need to predict the future; we simply make it happen. Clearly many solicitors, NGOs and others are already doing that. The third, however, may be to go back to basics and ask what drives technological innovation in modern societies.
Is technology a neutral tool?
A widely-held but largely discredited explanation of innovation combines celebration of the heroic inventor / entrepreneur with the belief that technology develops according to its own internal logic. It is often associated with the related idea that technology is in some sense “neutral” – that it does not embody particular political, social or class interests. On this view the internet is simply a tool that anyone concerned about access to justice can use, or fail to use, in ways that are more, or less, effective in delivering access to justice.
Other factors – the economy, the often conflicting interests of relevant social groups including regulators, and the considerable margin of flexibility in how technologies are developed and deployed – tend to attract less attention. What is often obscured in the process is that the use value of a service or a technology – its ability to meet human needs – may well be subordinated to its exchange value – its ability to generate surplus value or profits (or contribute to systems that do). The development of the high-intensity daylight fluorescent light bulb in the late 1930s is one well-known example, amongst many, of how technologies are constructed in this way. High-efficiency fluorescent lamps threatened to reduce the utilities’ electricity sales; a “need” for high-intensity fluorescent lighting that delivered “daylight quality” was therefore constructed (in a complex interchange between the lamp manufacturers and the utilities) in order to maintain wattage consumption.
What are the implications of this way of looking at technology for thinking about technology and access to justice? One interesting implication is that what we mean by meeting a need for “access to justice” will, in part, be defined by the technology that we deploy to deliver it. Indeed, Smith points out that a favourable constitutional context for digital services at its best “extends to a commitment to simplifying legislation to allow citizens to help themselves”. It is not unimaginable that the law itself could be shaped by the desire to deliver it digitally – or that future laws are embodied in code in interactive digital systems (the outputs of which would therefore constitute legally binding products) rather than in static text. This has serious implications for legal practice. Most accounts of the “traditional” role of a solicitor emphasise that it involves far more than acting as a legal technician to solve a pre-defined legal problem. For example, “a good deal of the lawyer’s competence is connected with his legal knowledge only indirectly or not at all. Since the law is a generalized mechanism of social control, its application covers a great variety of social situations. Different applications require a grasp of these social contexts as well as the law” (Rueschmeyer, 1964), and “clients bring many issues to the solicitor, expressed and constituted in terms of everyday discourses. The lawyer translates these, and reconstitutes the issues in terms of a legal discourse which has trans-situational applicability” (Cain, 1979). One thing that is often lost in digital delivery is wider social context.
A political struggle
However, the most important implication of rejecting the assumption that technology is a neutral tool is the appreciation that it is therefore part of the wider battle over access to justice (including what is meant by access to justice). Innovation, creativity and imagination undoubtedly have an important role to play in deploying new technologies to deliver legal services to all – but how they do so, and with what success, is surely a question of values (including traditional professional values) and political struggle.
The coming years may be decisive in settling the outcome of that struggle and embedding it in our technological systems. Active engagement of the kind illustrated – and advocated – by Face to Face will determine whether or not we develop helpful, socially responsible tools, that help to deliver justice or construct yet another digital cage in what is already our digitally-enabled surveillance society.
Timothy Hill is the Law Society’s technology policy adviser. He currently leads the Society’s work in a number of areas including cyber security, cloud computing and electronic surveillance. He is a qualified barrister, a professional member of the BCS Chartered Institute for IT and holds an MSc in Business IT and an MBA in Technology Management.