Designing out discretion: self-executing laws and the Holy Grail

Can discretion be designed out of the legal system and automation encouraged? Would that be another possible ‘game changer’? Might law and its enforcement become more ‘self-executing’ – eliminating the need for expensive individualised assistance? If this could be done to any large extent, it would be of massive assistance to those affected. Their need for legal advice, information and assistance would dramatically decrease. 

We can examine at least three ways in which this might be done. First, laws could be drafted in such a way that processes of implementation become self-executing. Second, decision-making itself could become more self-executing. Lastly, third parties could develop automated ways in which enforcement becomes effectively self-executing. 

Let’s leave for a later post issues raised by digitalising the court and tribunal decision-making processes.

Designing out legal discretion

The ‘individualisation’ of the law in recent times has been charted and debated by academics. It was described by one as the ‘holy Grail’. But it has also been a major policy battleground in which those arguing for automated decision-making might use the same phrase.

One example of the increased regulation of discretion is provided by the social security reforms in the UK during the 1980s. These were designed to remove discretion in benefit decisions. Those went through the Parliamentary process fairly smoothly. But more trouble was incurred in another major battle over simplification of the law a decade later over divorce. The Lord Chancellor Lord Mackay –  himself a member of a pretty fierce small Protestant denomination – attempted to reform divorce law to make the process more simple. Little thanks he got for this. Many of the political critics within his own party were supremely hostile to the notion of simplicity. A senior conservative, Baroness Young,  specifically objected to it: ‘No-fault divorce lowers marriage to something of less value than a television licence. There would be no punishment for breaking a marriage, whether you made a promise in church or a contract in a register office.’ Two decades later, the present Conservative government has announced divorce reform – with one aim being that ‘to make sure that divorcing couples are not put through legal requirements which do not serve their or society’s interests and which can lead to conflict and accordingly poor outcomes for children’. As Lord Mackay himself, a man of learning and not unappreciative of irony, might observe ‘the Lord moves in mysterious ways his wonders to perform’.

The point here is an important one. Everyone believes in simplicity but not always  when it conflicts with other political beliefs and objectives. Take another example. A small industry has emerged in the US over ‘expungement’. Various agencies have developed automated ways in which a person may have their criminal record, at least for some purposes, concealed. It can be a pretty complicated process. Here is one description: ‘Fill out the forms. There are six forms that need to be filled out and filed for criminal record expungement. The forms include the following: 1) Request for Police Records, 2) Petition for Expungement, 3) Order for Hearing, 4) Expungement Order, 5) Cover Letter and 6) Proof of Notice.’ Copies of the order for hearing have to be sent to seven different authorities. 

The UK equivalent is a largely automated process established by the Rehabilitation of Offenders Act 1974. This is official UK government guidance on how it works: ‘Under the 1974 Act, following a specified period of time which varies according to the disposal administered or sentence passed, cautions and convictions (except those resulting in prison sentences of over four years and all public protection sentences*) may become spent. As a result the offender is regarded as rehabilitated. For most purposes, the 1974 Act treats a rehabilitated person as if he or she had never committed, or been charged with charged or prosecuted for or convicted of or sentenced for the offence and, as such, they are not required to declare their spent caution(s) or conviction(s), for example, when applying for most jobs or insurance, some educational courses and housing applications.’  

Expungement has become a widespread political issue in the US and many states are inching their way towards a more automated approach.

The point here is not really to argue about expungement in particular but to use expungement/rehabilitation of offenders legislation as a demonstration of how systems can be beneficially automated. In 2015, the American Bar Association reported on a demonstration youth justice expungement project (which still exists) in Illinois (expunge.io). It commented, ‘In some ways, juvenile expungement is a low-hanging fruit. Most juvenile records in Illinois are eligible to be expunged eventually.’ So, why is this process not automated by government?

Self-executing enforcement

Sitting on my desk is a Penalty Charge Notice for driving within central London without paying the appropriate fee. With it are two all too clear photographs of my car and its number plate. A pity that neither show the driver (the subject of domestic friction). However, legislation clearly makes the registered owner liable in these circumstances. Never mind all the complications of digital justice to be explored later. This is an example of, effectively, automated self-executed enforcement in a potent mixture of clear legislation, car owner registration, widespread camera coverage, automated production of a penalty charge notice which is enforceable, if unpaid, through the civil courts as a civil debt. For myself and my VW Touran, the perfect storm. We have appeal rights but they double the penalty and we are skewered by a potent combination of automated evidence and  precisely drawn law. 

Another example of automated self-execution can be drawn from the social security system. Additional payment (a personal independence payment or PIP) is payable to those suffering from severe functional disability. However, if you are living with a terminal illness and a doctor gives you less than six months to live you can jump a long bureaucratic process under what are known as ‘special rules’ that should apply if the doctor simply fills in a particular form (DS1500) confirming your diagnosis and treatment plan. In practice, this generally works well but there are a constant stream of cases where benefit officials refuse the benefit seemingly even in these circumstances. 

The lesson of these cases is that we need to scour the legal system for areas where decisions can be automated and the effect of the desire to pander to prejudice or save small amounts of money minimised.

Third party self-execution

Third party self-execution takes us into the realm of automated systems to challenge adverse decisions. And who best to be our guide but Joshua Browder and his rapidly growing ‘DoNotPay’ empire? This explicitly promotes itself as ‘the world’s first robot lawyer’. If you are a corporation or a government body that allows automated actions in theory but hinders them in practice (eg the cancellation of certain contracts and subscriptions after a free period of receipt of a service or product) then Mr Browder is gunning for you. Here is the description of his assistance for cancelling a ‘Planet Fitness’ subscription: ‘Canceling your Planet Fitness gym membership is usually tricky. It often results in frustration and postponing the cancelation due to complicated procedures. We can help you avoid going through all the excruciating cancelation methods. To cancel your membership with our app, you need to: 1. Open the DoNotPay app in your web browser: 2. Tap on “Find Hidden Money”: 3. Type in “Planet Fitness” as the service you want to cancel. We will send you an email as soon as we cancel your account.’ This is an application relating to the private consumer sector but it is, in essence, the same as the automated expungement processes described above as ‘low hanging fruit’ for automation. There remains the point that, if Mr Browder can automate automated claims in areas of law as diverse as gym membership to compensation for victims of crime then it would be much better for the corporate and government agencies responsible to do this themselves.

Conclusion

Are any of these three techniques important enough to be called ‘game changers’ in the field of access to justice? Probably not. But they are perhaps a reminder that, with sufficient political will, we can design our legal system to maximise the extent to which it delivers desirable outcomes automatically rather than demanding that people need the whole structure of lawyers and legal aid to get to the same place. They do, of course, depend on political and corporate goodwill. And, as the Great Bard said, ‘thereby hangs a tale’. But, if we are looking at comprehensive approaches to access to justice then we should not forget these opportunities.

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