Online Dispute Resolution, Online Legal Services: the question of leadership

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On Friday, a high level panel in the last session of a London conference on access to justice addressed the question of ‘strategy on a 10 year horizon’. Asked to identify the key issue, the majority of participants (who included the CEO of the Law Society and a senior judge) identified the question of who would lead developments over the next decade. That is a difficult but important point to which the answer is not obvious and, indeed, the answer may be ‘no one’.

The conference was organised by the Civil Justice Council (CJC) for England and Wales as its Fifth National Forum on – and here the title has been changed from the previous ‘litigants in person’ – access to justice for those without means. The CJC is the sort of body that exists in many jurisdictions. It has a statutory base, established by the Civil Procedure Act 1997. It has a thoroughly respectable membership of judges, lawyers, civil servants and others and its functions include:

(a) keeping the civil justice system under review,

(b) considering how to make the civil justice system more accessible, fair and efficient,

(c) advising the Lord Chancellor and the judiciary on the development of the civil justice system,

(d) referring proposals for changes in the civil justice system to the Lord Chancellor and the Civil Procedure Rule Committee, and

(e) making proposals for research.

It is enormously to the credit of one of the judicial members of the CJC, Sir Robin Knowles (who has a long history of engagement with the pro bono movement), that the council has construed its remit to include civil justice within the wider context of access to justice. The engagement provides the opportunity to bring together a wide range of stakeholders in the civil justice system including advice and information providers, lawyers, the court service and the judiciary. The national forum has become an annual day out for advisers at the coal face to meet and discuss matters of mutual interest with the judiciary and civil servants involved in the courts. At the present time, the momentum is with Her Majesty’s Courts and Tribunals Service and the judiciary as both race to implement Ministry of Justice plans to sell off court stock and digitalise court procedures, particularly in relation to a proposed online small claims court.

The CJC has gone just about as far as it can do with its statutory remit. It has set up exactly what it said on its conference tin: a national forum for discussion. The CJC’s focus is, however, primarily only on the courts: it is only by stretching its concern with litigants in person that it looks at the overall provision in terms of advice and information available to those who are self-represented litigants or, even more distantly, those who might be.

The obvious counterpart to the CJC would be the body charged with administering legal aid. Under 1998 legislation this would have been the Legal Services Commission which was responsible for a community legal service that included advice, assistance and representation (although for historical reasons the Commission never actually had responsibility for national information and advice provided by organisations like the Citizens Advice Service or advice services funded by local government). The Commission had, however, a broad oversight and planning duty. It statutory duties included:

(6) The Commission shall also inform itself about the need for, and the provision of, services … and about the quality of the services provided and, in co-operation with such authorities and other bodies and persons as it considers appropriate–

(a) plan what can be done towards meeting that need by the performance by the Commission of its functions, and

(b) facilitate the planning by other authorities, bodies and persons of what can be done by them to meet that need by the use of any resources available to them;

and the Commission shall notify the Lord Chancellor of what it has done under this subsection.

The Commission, however, fell foul of rivalry with officials and ministers in the Lord Chancellor’s Department and was replaced by an executive agency of the Ministry of Justice, the Legal Aid Agency (LAA). The LAA has a narrow administrative brief illustrated by the fact that it played no role in the CJC’s national forum.

For England and Wales, the CJC is, to its credit, really the only body that might stretch towards a leadership role. But, this raises the question of overall leadership in a field where a number of individual actors have their own agendas and, indeed, where the driving force of technology itself is amorphous, chaotic, unpredictable and necessarily leaderless. In addition, there is the difficulty of bringing together a diverse constituency which covers fields that have long been separate. In England and Wales, the courts, lawyers, legal aid funders, advice providers and mediators have traditionally operated separately and have vastly different histories.

There is no easy answer as to who should provide a lead. Ministries of Justice or their equivalents hold the purse strings to funds for the courts and for legal aid. But, by that very fact, they have their own agendas. There is a growing movement towards Access to Justice Commissions in North America, often chaired by a judge which bring together providers and seek to leverage judicial credibility. But, these often struggle for resources.

The Canadian Forum on Civil Justice was established in response to a report of the Canadian Bar Association in 1996. It has an institutional base at York University in Toronto and a research brief: in the words of its website it ‘strives to make the civil justice system more accessible, effective and sustainable by leading and participating in projects that place the citizen at the center of our civil justice system.’ The forum has done some good work but again is not in control of any significant resources.

In the United States, the American Bar Association has established a Centre for Innovation. This was a recommendation of the report of its Commission on the Future of Legal Services. This should provide research on developments and a lead in regulatory debates. It will presumably be similar to an extent to a number of academic institutions with a brief to foster and study innovation of which the Hague Institute for the Internationalisation of Law (HIIL) is but one. HIIL is involved in a number of practical developments, notably the Rechtwijzer. But none of these bodies are really leaders in any sense of pulling together initiatives in the public and private sector to any great degree.

For the moment, it may be enough that the issue of strategic leadership and the realisation that technology disrupts the previously useful divisions in the justice system is recognised. Jurisdictions will struggle in their different ways to meet the evident need at least to take stock of rapid change, only part of which is – in any event – under their control. But, we need to keep working at bringing together what in England and Wales would be the NGO advice sector, private providers, legal aid and courts and tribunals. The key players will be broadly similar in other countries.The CJC’s final panel correctly identified a major issue.

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