Understandably perhaps, news of the winners of the Legal Access Challenge in England and Wales made little headway against the blanket coverage of the coronavirus epidemic outside some of the specialist legal media. This is a pity. The challenge identified two ultimate winners – the FLOWS (Finding Legal Options for Women Survivors) project and the chatbot devised by Mencap to give legal assistance to those with learning disabilities. The organisations and people behind these merit congratulation and their success raises key questions, on the one hand, for government and, on the other, for access to justice practitioners.
Both of the substance of the projects have been covered already – FLOWS here and Mencap’s earlier chatbot version here, as has the earlier process of identifying eight initial winners. The challenge needs to be seen in context. England and Wales is still struggling with the consequences of cuts to legal advice targeted at family and general ‘social welfare advice’ that were introduced in legislation in 2012 by a Coalition Conservative and Liberal Democrat government. These actually preserved legal aid for family domestic violence cases but obstructed the path through initial advice for (largely) women to receive it and completely cut legal advice on social care and other matters relevant to those with learning difficulties.
The government’s initial target in making the challenge money available was to boost the use of artificial intelligence and to do so in the context of looking at the regulatory issues that might arise. That is why the challenge was run by the Solicitors Regulation Authority which, in turn, sought the assistance of NESTA (better understood if you know that this used to stand for the National Endowment for Science, Technology and the Arts). As the project proceeded, there seems to have been a realisation by all concerned that the issue was better phrased as studying the impact of technology rather than artificial intelligence. Neither of the winning projects has an important AI component. In the event, something may have been learned about regulation but probably more about the process of innovation and its value in compensation for austerity-driven cuts to social provision.
Coronavirus made its appearance towards the end of the process in a way that no one could have predicted. This meant that the final presentations and judging sessions took place virtually. That probably made no difference to the decisions. But it certainly makes it legitimate to ask, now that the challenge is over, what role that the winners and other participants are likely to perform in the changed circumstances in which we now find ourselves.
The two winners illustrate different issues for the future. FLOWS is a big project in its implications. Its implicit proposition is: ‘Look, we can find ways of working with the limitations now on legal aid. We will pull together – through technology – committed specialist lawyers to provide advice in difficult cases (sometimes by video) and litigation when required to protect people; pro bono lawyers who will work with not for profit organisations to help people with a litigation process which they can largely do themselves with assistance from technology and an established citizens advice programme that includes self-completed document assembly’. In total, the organisations behind FLOWS – a part of the citizens advice organisation and ROW (Rights of Women) – received £100,000 from the challenge. That probably keeps them going until the summer. What they need is a Ministry of Justice sufficiently impressed by their performance that the project can be incorporated within the truncated legal aid system.
Coronavirus makes that more urgent because domestic violence is a hidden but growing problem and consultation with solicitors in the normal way much harder. In its turn, this requires an understanding that will seem basic to almost every other jurisdiction other than ours. Legal aid must move away from a reactive case-by-case ‘judicare’ model to a more strategic one where organisations are block funded to provide new types of services that combine with greater reliance on self-represented litigants given maximum digital assistance. That will be hard for lawyers wishing to practice in the traditional way. But no government is going to reinstate legal aid as it was just a decade ago and the needs of people are only going to grow as the world hits a massive corona inspired recession.
Mencap’s project carries that challenge to the access to justice sector itself. Its development is further behind FLOWS so that it is not entirely clear how it will be perceived by its anticipated users. But here we have a potential group of vulnerable people and their carers for whom information about services and benefits is crucial. And for whom innovative ways of using interactive information may be valuable. If we are to move during and after the pandemic (as we surely will) to more use of digital communication between providers and users then interactivity in the form of such mechanisms as chatbots and self-assembly documentation will be key. Interactivity does not address the issue of digital exclusion – particularly at a time when people with smartphones cannot use the wifi opportunities of places like libraries and coffee houses – but it should extend the range of people who can usefully get information from the internet.
As a final note, I should declare an interest. I was one of the SRA/NESTA judges. And, for what it is worth, I thought it was a well-run and valuable process – more successful than would have been predicted by my early prejudice against the commercially competitive nature of the legal challenge structure.
The picture illustrates spring in a North London park. It was taken as an ancillary or incidental action to permitted activity covered by regulation 6(2)(b) of the Health Protection (Coronavirus Restrictions) (England) Regulations 2020, (taking of exercise).