A conference in St Petersburg entitled ‘New Technology and the Law – a Human Rights perspective’ earlier this week provided an opportunity for a summary of the current state of the use of technology in relation to access to justice. The conference was organised by the UK-based lawyers organisation Citizens Watch International. Most of the discussion in the day was about the regulation of artificial intelligence – in which there was a lively interest – but this is an edited version of a contribution on access to justice, human rights and technology which may be of general interest. The delegates were Russian members of the Bar, academics and students. Their government talks of improving legal information for its citizens but has yet to invest much even in legal aid, which has traditionally been a source of formal rather than substantive assistance. Regulated members of the Bar compete with larger numbers of unregulated providers. Practices outside the large commercial corporations are small. Funds for investment are, therefore, limited.
St Petersburg is beautiful in a Tsarist kind of way and best visited in the warmer months. In November, the weather was cold and wet: the people – both generally and at the conference – were, however, warm and welcoming. If you get a chance, visit. In the summer.
Legal systems are different. In particular, common law systems differ significantly from civil law systems prevalent on the mainland of Europe. Jurisdictions have different histories. Legal practice has different forms. Cultures have developed different approaches to the delivery of legal services to those unable to pay for them. Language is used differently.
In terms of context, legal advice and assistance in the UK to those on low incomes in England and Wales is provided by four categories of provider – each of which contributes differently to the use of technology:
- at a basic information and advice level, there are largely non-lawyer, non-government agencies like the Citizens Advice Bureau (with a large volunteer workforce that owes its origins to lay advice on legal regulations during the Second World War);
- information, advice and representation is delivered by a diminishing number of non-government agencies like law centres which employ lawyers (the number of members of the Law Centres Network is currently only 41);
- fairly large numbers of lawyers in private practice have historically been funded by public funds through legal aid but now face an uncertain future in many fields as money is being cut;
- a pro bono sector has grown up, largely around the commercial lawyers in large firms.
Access to Justice and Human Rights
In the UK, we are familiar with the concept of access to justice as providing the justification for the provision of legal and advice services. Governments of all types proclaim their commitment to access to justice as a general principle. They do so, however, without that much agreement on what it actually means. At the very least, it should surely signify that everyone, regardless of resources, receive a procedurally fair result in any dispute with the state, another individual or other body.
The phrase was not around when the UN or the Council of Europe were drafting their major human rights documents. But access to justice is included – albeit without definition – in the EU Charter on Fundamental Rights and Freedoms Article 47: ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal … Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.’ The language has carried through to the UN’s latest statement of sustainable goals. Number 16 is ‘to promote justice and strong institutions’, one target of which is 16.3 ‘promote the rule of law and ensure equal access to justice’.
Access to justice is, therefore, one of human rights’ youngest children, seeking to establish itself among the more accepted human rights such as those covering privacy, criminal justice and family life.
The practical meaning
So, what might access to justice mean and how is technology relevant to its attainment? We can break it down into these components.
This is clearly the first step. Someone with a problem – eg a leaking roof – has to recognise that, for them, this may not be not just a building issue but is also a legal one – eg because they are a tenant or they hired a builder who did some lousy work. They may need more than a bucket and a new roof tile. They need to know if anyone else – for example a landlord – has a liability to assist them.
Here we have at least two approaches where technology might be relevant. First, the traditional provision of information as in sites like those run by Citizens Advice and Law for Life in England and Wales or, more interactively, MyLawBC in British Columbia. These set out the law that applies to your query. So, if you want to know your rights, the technology assists you to look them up. And increasingly that can be done dynamically asking you questions and then giving you answers only to what is relevant to your query – through the provision of guided pathways.
Within this field, there is increasing interest in the use of chatbots as a means to communicate information. In Scotland, a specialist housing organisation, Scottish Shelter, has developed an interactive chatbot to help you with precisely this task. A similar organisation in Chicago has a bot called Rentervention. Chatbots have their uses. They are increasingly being used in a commercial context. But, they also have practical limitations. Many are little more than ways of interrogating data along fixed guided pathways. Many are barely characterised and are often represented simply by a chat box. However, agencies are beginning to explore the opportunities here for visual and oral communication.
Second, we are beginning to see initiatives both in the UK and the US to translate through natural language programming ordinary language to legalese and back. These are designed to ease issues of communication so that the system can tease out legal issues from ordinary language. You ask a question in ordinary language: the system replies similarly but only after it internally translates question and answer into a legal form. This approach is exemplified by the Learned Hands project of Stanford and Suffolk Universities in the US or, more generally, the work of the EU Mirel project.
Third, we can begin to see the use of technology in assisting in answering questions on the application of the law in fields such that, for example, require the detailed consideration of decided cases. But, the frontier of development is around specialist provision more focused at practitioners in such areas as case prediction than general advice to individuals. But, this is an area where provision is bound to expand.
After you have recognised that you have a legal problem, you have to decide what to do about it. This is where much public legal education kicks in.
In terms of taking matters forward on an individual basis, you have to make a decision based on a number of elements – the importance to you of the problem; the likely benefits of resolving it; any disadvantages of taking it further; your temperament as to the mode of resolution; the range of options and so on. A Dutch project, the Rechtwijzer, offered users a scale for their own and their partner’s willingness to use mediation in family breakdown proceedings from 1 to 5 as an aid to deciding how a problem should be dealt with. That opens up the very interesting area of advising users not only not the law but on the various approaches that they can adopt to enforce – or if they wish – ignore it.
In the resolution of any dispute, the collection and presentation of evidence is likely to be crucial. Technology can play a part in its accumulation through such provision as Justfix.nyc which steers the collection of data on housing disrepair or the various programmes that allow recording of sexual harassment so that a case of persistence can be built up – like Project Callisto. In addition, there are highly sophisticated, AI assisted programmes such as those developed in high profile cases by human rights organisations such as UK-based Forensic Architecture. This. for example, taught a programme to recognise the packaging of a particular tear gas and was able to identify photographs in which they were present – a crucial issue in a legal case.
4. referral and triage
Your problem having been defined and you having decided how or whether you are going to resolve it, you may want to explore what legal assistance you can get through some legal aid scheme, pro bono assistance or self-help assistance. A lot of work has gone into the consequent programmes to help you in finding out where you might qualify for assistance – particularly in the US with the Legal Services Corporation’s Legal Navigator or Illinois Legal Aid Online’s online triage and information service or, in Australia, with JusticeConnect’s Gateway. This is again a field where claims are being made for the potential use of AI to assist the process of matching users with provision.
One of the largest areas of technological innovation in the field is assisted self-help document assembly. Organisations in almost all jurisdictions are exploring self-assembly documentation and programmes which will assist you dynamically through the necessary legal process. Various private practice law firms are offering online fixed fee packages to help you to, for example, undertake your own. A really good example of self-completed documentation is provided by the US A2J author programme in the United States. This allows you to compile a document from the answers to a number of key questions through a guided interview which can be programmed for any field. The questions are set out along a visual pathway to a distant court. Answer them and the programme will complete a document such as a request for a change of name.
You need a way in which your problem can be resolved. This may involve the provision of, or assistance with negotiation, mediation, arbitration or determination online. Disputes are often experienced as individual. However, many – particularly those involving individuals against state agencies or commercial organisations – can also be seen as indicators of more general conflict. This can help in their resolution. Technology can assist in logging different individual cases on common issues that would benefit from collective resolution eg certain recurring problems in relation to the collection of state benefits. Let us leave for the moment, the various moves to court-based online dispute resolution.
Improving business efficiency
The major way, however, in which technology is actually helping the achievement of access to justice at the present time in the UK is probably not actually through assistance with any of these individual functions. It is the ‘trickle down’ consequence of use developed in more commercially profitable sectors of business efficiency software.
At one level, business efficiency can be increased significantly by the simple adoption of basic tools like cloud computing and the Microsoft suite of programmes. Beyond that is the realm of case management packages like those produced by Canadian firm Clio which provides both its own case management tools and also a platform on which others can plug different packages. This has attracted major investment and is seeking to establish itself as the industry standard. In doing so, it will rival packages already developed within the legal aid and legal services movement. The US Legal Services Corporation has provided the funding for its own case management software, LegalServer. AdvicePro is a UK equivalent, associated with AdviceUK and widely used in the not for profit sector. The English and Welsh Citizens Advice Service – the largest national information and advice provider – has developed its own product, Casebook.
One issue is whether adapted commercial products will, in time, become better than those developed in-house. Another is the tapping of the potential of the guided online pre-interview questionnaire. This was the premise behind Siaro, developed by Alan Larkin and his Brighton firm Family Law Partnership. Behind this was a clear commercial imperative: ‘I calculated that that if we could just get 30 per cent of the clients using the questionnaire then there would be a worthwhile reduction in the soft cost of time otherwise being spent in initial telephone calls and some free interviews.’ Siaro, in the event, did not go into commercial production. But, it showed how practice management programme could reduce the cost of services to low income clients.
You need to decide how much of this work might be useful to you in your very different circumstances. What better way, however, to keep in touch with global developments than to follow law-tech-a2j.org.