Two recently published reports discuss the degree and nature of assistance that users require in dealing with ODR provision within the official court process. Both relate to the proposals in England and Wales for an online court system, particularly in relation to small claims. One is from the advocacy group, JUSTICE and entitled Preventing Digital Exclusion from Online Justice and the other is published by the Civil Justice Council, a more official judicial body, under the name Assisted Digital Support for Civil Justice System Users. Both have a wealth of information to be mined in later posts about the accessibility of digital provision. But, both raise a discrete initial issue: does it make sense to divide assistance with digital provision from help with the underlying legal issues? 

The background to this aspect of the two reports is that the government has an overall policy of assisting users with digital access to services. Her Majesty’s Courts and Tribunals Service has seen its online court in this light and has hired a Not for Profit organisation, somewhat excruciatingly entitled the Good Things Foundation, to provide digital assistance to those who might otherwise be excluded from the online court programme. This has a two year contract running from September 2017 under which from April 2018 it is  rolling out pilot provision in a variety of locations including Swansea, Sunderland and London. HMCTS will itself provide telephone assistance via call centres. The JUSTICE report notes how this works at present: ‘all the call handler can do is to talk through the process with the caller (who is filling in the form on their own screen’. It draws out the limitation inherent in the HMCTS approach: ‘HMCTS’ Assisted Digital is limited to help with the digital aspects of online justice services (ie technical help). Assisted Digital will not provide legal help. We recognise that lack of legal help for ordinary litigants in civil justice is a real problem as well’.

The same point  is made in the Civil Justice Council report. This is written by a team headed by Catrina Denvir, Director of the Ulster Legal Innovation Centre. She learnt part of her trade at the Legal Services Research Centre of the Legal Services Commission. Its was abolished along with the commission in 2013 when Government policy turned away from valuing empirical research in favour of the overriding claims of austerity. Its demise was part of the notorious ‘LASPO (Legal Aid Sentencing and Punishment of Offenders Act 2012) cuts’. The point to note is that the quality of this report could be seen as Dr Denvir’s revenge. She and her team have produced a model analysis of a relevant policy question analysed from a rigorous empirical base. This is the sort of thing that Ministries of Justice should be doing and all credit to the Civil Justice Council for taking on the job in the notable absence of our own.

Dr Denvir gets pretty close to the JUSTICE position: ‘Whilst this report focuses primarily on issues of digital capability, the level of legal capability required to make use of digital MoJ/HMCTS [Ministry of Justice/Her Majesty’s Courts and Tribunals Service] services is routinely underestimated in digital service assessments. A more realistic appraisal of the level of legal capability required to perform certain civil justice tasks (online or offline) is a critical component in the development of information and guidance that appropriately supports task completion. For this reason ADS [assisted digital services] must be understood within the context of the task that is being completed; failure to do so risks the development of an online system that is accessible in principle but not in practice.’ Her basic warning is that the digital capacity does not imply legal capacity and the two should not be conflated: ‘That users undertake a range of activities online is not to say that they have the capability to undertake legal processes online. Digital capability is not the same as legal capability and both forms of capability are likely to be required to successfully navigate an online court.’

The excellence of her report lies not only in its analysis but in its evidence. She quotes the Government Digital Service assessments of four examples of Ministry of Justice digital services. The assessment of the required specialist knowledge to evict a tenant; take an employer to a tribunal or make a lasting power of attorney were all rated the same (level 8) with ‘some legal knowledge beneficial not essential’. Well, to put the point colloquially: ‘Wake up and smell the coffee’. You might just squeeze a power of attorney into that category but you need more than an ‘ACAS reference number, employment details, earnings information and payment details’ for most types of employment claim (and heaven help you if that was all you had for a whole range of claims about, for example, relating to pregnancy, unfair dismissal, redundancy, unilateral change of terms of employment, discrimination or victimisation). You might also want more than a ‘tenancy agreement, TDS (Tenancy Deposit Scheme) reference number) and the notice provided to tenants for a successful eviction. Sometimes the lack of lawyers in the HMCTS and Ministry of Justice shows.

So, the short message from Dr Denvir’s empirical research is that, while an automated prison visitor booking service might be reasonable (rated 7 in difficulty) extending automation to a range of potentially contentious legal issues is rather different,

The obvious point here is that it makes no logical sense to divide digital from legal assistance. Someone, going back to the JUSTICE example, sitting in front of a computer seeking to make an employment tribunal application needs to press the right button but they need also to enter the right content. Had legal advice survived for most types of legal claim then there would have been some chance of a unified system. But it has gone. And, you can foresee with terrible clarity that the two year deal to provide assistance only with digital technicalities will not work well. Legal aid has probably gone never to return. But there remain a range of national and local advice agencies. There are also a network of Personal Support Units at courts. And how do they describe themselves? Thus: ‘Every year thousands of people find themselves facing the battle of their life in court, alone and without help. They have to represent themselves in cases of divorce, contact with children, or eviction from their homes. Under distressing circumstances they must navigate a complex legal system, often against professional representation on the other side. In times of austerity the reduced availability of legal aid has meant that thousands more people face the civil and family courts alone. Their access to justice is at risk, as they feel overwhelmed and struggle to represent themselves effectively in court. We are the only charity helping people in court on a daily basis. Over 700 trained volunteers, provide a free service across the country. We provide comfort, support and guidance before, during and after court. We ensure people facing court alone feel prepared and supported to access justice.’

You might want to argue that the PSU, Citizens Advice, Advice Now or local agencies could not cope with adding digital assistance to their brief: they are under enough pressure as it is. And, no doubt they can’t without additional funding. You might want to submit their operation to empirical observation under the stern gaze of Dr Denvir. But that would surely make considerable more sense than artificially splitting advice between digital (provided) and legal (absent). One of technology’s great promises is that it can collapse previous silos and distinctions: it should surely not be deployed to increase them.