Technology and Access to Justice: Asking the Questions

Got a minute? Help me out. I have taken on the task of preparing a questionnaire on the use of technology to assist access to justice for a range of different countries around the world. Methodologically, this sort of exercise is a nightmare. Get into the detail and the prejudices deriving from the drafter’s own experience becomes hard to hide. It is also pretty difficult to ask open questions that do not reflect assumptions about the expected answers. And, finally, this is a questionnaire that is likely to go out to not only to a range of different countries but to a range of different people in those countries – among them academics, activists, lawyers, paralegals and others. So, look at my first draft if you have the time and get back to me via email or twitter with improvements. I am all too aware that, to take two towns selected only for their alliteration, what looks fine in London may look loopy in Lagos.

Two preliminary points. First, our target concern is the diverse groups who require assistance to obtain access to justice. And, for this purpose, we are consciously sidestepping some of the questionable assumptions bundled up in that sentence. We are not, for example, asking how ‘access to justice’ differs from justice or whether ‘access’ is a limiting or magnifying concept. Nor are we going to ponder on the different metaphysical or political definitions of ‘justice’. 

We are concerned primarily with the legal system – the courts, the dispute resolution methods, advisers and practitioners within it – and how people handicapped by poverty, race, gender, class, culture, skills or otherwise can be assisted to access it when otherwise they could not. We want, however, to span one of the great divisions of provider philosophy. We want to capture provision which, on the one hand, sees itself as fairly conventional service delivery and, on the other, portrays itself more within the more radical tradition of legal empowerment. Both are relevant.

Second, there is an immediate issue of language. What do we call our target group? Historically, in England and Wales, we might have identified them as eligible for legal aid – in times when eligibility was subject to reasonable financial and merits tests. Cuts mean that is no longer possible. In other jurisdictions (such as the US in civil cases), the definition might be more directly in relation to income below some level of poverty. That has the advantage of clarity but it potentially underplays issues other than income and international comparisons of income levels are notoriously tricky. 

We could try hooking up with international human rights obligations. For example, for countries within the jurisdiction of the European Convention on Human Rights, the definition might be linked to its provisions or for those within the European Union, the provisions in Article 47 of the Charter of Fundamental Rights on a right to an effective remedy for breach of a right; a fair and public hearing with representation if required; and legal aid for those ‘who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice’.  But that shows a difficulty also illustrated by the United Nations. It has handed us its current set of strategic goals relating to access to justice but definitionally they take us very little further.  For example, the key provision is ‘16.3 Promote the rule of law at the national and international levels and ensure equal access to justice for all’. 

So, operationally, what phrase are we going to use so that we can move on to the meat of this exercise? Well, the key issue is actually highlighted by the European Charter – and, indeed, in the jurisprudence of the European Court of Human Rights. We are concerned with what can be done for those excluded from effective access to justice. Think you can do better than this? Let me know.

So, finally, to the draft questionnaire which is divided into sections. It is asking what provision exists in your country using technology to assist those who are excluded from effective access to justice. We are going to approach this in sections. These begin with the important general question and then break up into subsequent detailed ones to help responses. I have tried to work within a framework of a maximum of 12 questions so as not to overwhelm those seeking to provide the answers.

1. Generally

1.1 What is the general use of technology in your jurisdiction? 

For example, what is your best estimate of those lacking effective access to justice able to use the internet (with assistance if likely to be available); what is broadband coverage like, particularly in rural areas; what proportion of people would you estimate have smart phones; what is the use of unsmart mobile phones? Can you safely rely on SMS to contact people?

1.2 Are other public services assisted by technology eg are midwives or other health workers able to use the internet for immediate medical advice in remote country areas?

2. Legal Practitioners

2.1 How much (if at all) do legal practitioners, particularly those concerned with low income clients use technology for business purposes eg in basic ‘productivity tools’ such as Microsoft Office packages; specific legal client management packages; communication by email or SMS?

2.2 In your jurisdiction, are legal private practitioners involved in the significant delivery of services to those excluded form effective access to justice through pro bono? And, if so, how do they use technology?

2.3 If private practitioners are used to deliver publicly funded legal services, do they communicate with their funder electronically? Does the funder encourage them to use technology to extend their services?

3. Not for Profit providers

3.1 How much do not for profit providers use technology? 

Is this impeded by cost considerations? Is it limited to business tools? Do providers use SMS or email to communicate with users? Do they use websites to make initial contacts? Do they use phone or video connections to remote locations? 

3.2 Are any providers using technology eg in the form of user completed forms and letters to empower self-represented users to take their own cases. Is technology used in any way to help self-represented litigants?

3.4 Is technology used for campaigning and advocacy eg through social media?

3.5 Is technology used to support paralegals or other workers in remote locations away from their offices?

4. Referral and Triage

4.1 Is technology used in any way to assist in the referral of people to appropriate provision or to identify their eligibility for services?

5. Innovation

5.1 Has your jurisdiction seen the successful use of technology to provide legal services in innovative ways?

5.2 Are internationally focused organisations such as the Hague Institute for Innovation of Law (HiiL) or the Open Society Justice Initiative active in your jurisdiction and what have they done in relation to technology?

 Rsmith@rogersmith.info 

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