Poverty, Technology and Government:  Justice and legal assistance for people on low incomes in the 2020s

Covid 19 provides a fitting closure to the 2010s, effectively the opening decade in the development of technology to serve access to justice. And May 2021 will mark five years of this blog. So, this seems a good time for reflection. But, rather than looking backwards, let’s look forward to what the next decade will bring.  Below is the synopsis for something which will begin as a paper  for the International Legal Aid Group conference in June – with possibly a longer publication to follow.

I have spent a lifetime preparing papers for committees. I have longed for the life of an academic or journalist whose golden thoughts and purple prose went untarnished by a group with little reverence for either. Now I can write largely without such constraint, I miss the refinement of ideas by collective discussion, debate and argument.

So, I offer you the first draft at an outline. At places, it sometimes uses shorthand to keep the length down. It is in numbered paragraphs for easy reference.

One part of my job is done if you but read it and it precipitates your own thoughts. However, beyond that, I  really welcome any comment and response – by way of twitter (@lawtech_a2j) or email (rsmith@rogersmith.info). And it really does not matter if you are a hardened pro who dreams only in Drupal, a  wet behind the ears first year law student – or, best of all, someone with nothing to do with the law. All comments from all perspectives are valuable and welcome. 

Two weeks for comment and then I start writing specific sections, initially for the blog. Let me know what you think.

Roger

Introduction

  1. What role can technology play in the delivery of access to justice over the next decade? During this period, governments all over the world will be grappling with the lingering effects of Covid 19 and  its consequent social and economic effects. There are likely to be large numbers of newly impoverished people precipitated into the ‘justice gap’ where they cannot afford legal assistance with any legal problem that they have. Individual countries will approach this question within their own distinctively national and political cultures. But the core issues of technology, the pandemic and the justice gap are transnational. It only makes sense to look at these issues internationally as well as nationally. It is, after all, evident that technology knows no borders. Develop a digital solution to delivering web-based legal advice or referral in New York, London, Melbourne or Bangalore and you need only to change the underlying content to make it work anywhere.
  1. In the access to justice field (as more generally), organisations and institutions have rapidly adjusted to the pandemic and its attendant lockdowns. They relied upon existing; accelerated proposed; or implemented new ‘back office’ technological improvements such as cloud-based case management systems (largely ‘trickled down’ from the commercial sector). These  kept legal services functioning so that staff and users could operate remotely. Overall, that was a massive achievement. The consequent gains in internal organisation will be consolidated after the pandemic. But what does the rest of the decade hold in terms of the use of technology to the access to justice field? Can it be transformative and improve on the creaking systems of assistance before the pandemic? What developments should we encourage? How will provision of assistance link to the likely increase of digitalisation within courts? What challenges will we face? These are crucial questions for all countries, rich and poor. Governments will respond variously according to their culture, finances and politics. But what are the common themes?

The context

  1. The decade of the 2020s began traumatically. Around the world, the pandemic transformed societies, economies and governments. In terms of almost every indicator – from health through education to income, the poorest suffered most. Technology was one of the few bright spots in response to the pandemic. It significantly helped to minimise consequent disruption. Shopping, for example, went massively online. 
  1. Providers of legal assistance have. by and large, kept some level of service running – often rising to pre-pandemic levels or higher after an initial dip.  Courts and tribunals have faced a similar challenge. Luckily, many providers (and courts) were already deep into digital transformation processes.  In the UK, good examples would be the Citizens Advice service which had already begun the process of developing its website as a prime information service and Law Centres which were in the midst of a pre-existing digital development programme. Organisations had rapidly to adjust. Tia Matt of Exeter University student pro bono centre provides an example, ‘We were due to occupy premises owned by the University in the main station in Exeter, St David’s, earlier this year just when Covid 19 struck. They were renovating a former shop for us. It is a fantastic location, very central. But, when the pandemic arrived in March, the campus closed and the students largely went home.’ The centre closed for 10 days and then re-opened on a virtual basis – with students around the world and users communicating largely by phone.
  1. In the next year or two, the immediate impact of Covid 19 will recede but will leave a legacy that is likely to flow through the decade and beyond. Much of this will be negative. Poverty and inequality is likely to grow both within nations and internationally. Unemployment is likely to rampant and employment fragile. Governments will be torn between policies that ameliorate poverty and those which favour financial austerity. This choice will take place against the background of those made previously – such as the austerity policies of the UK over the last decade which have greatly diminished services and benefits as varied as Legal Aid and Universal Credit. 
  1. The emphasis on the back office use of technology due to the pandemic should not obscure the explorations of the use of technology in the direct delivery of services to users during the 2010s. In the US, the Legal Services Corporation led the way after ‘technology summits’ in 2012 and 2013 to explore what night be done through a specific technology initiative grant programme. In the UK, the government set up a NESTA challenge fund in 2019 to accelerate initiatives in access to justice. In the Netherlands, the Dutch Legal Aid Board led the way with its Rechtwijzer programme that explored what might be done in the innovate use of technology in online dispute resolution particularly of family problems.
  1. There has been wide experiment with a range of different products – particularly document self assembly in the US and some level of experiment with AI assisted advice and referral in the US and Australia. Overall, however, the current picture is really one of fragmentation – nationally and internationally. There is a some limited evidence of a growing flow of experience between different jurisdictions manifest for example in Australian JusticeConnect’s development of US legal navigator ideas. And many jurisdictions have established or strengthened networks seeking to keep tabs on innovation. At best, the current situation can be described, however, as allowing the blooming of a hundred separate flowers. At worst, it is a chaotic and random mess. Covid makes future coherent development all the harder. 

Trends for the next decade

  1. The way forward for the next decade is articulated by the Dutch development organisation HiiL as likely to be the product of ‘game changers’ – forces and institutions which will fundamentally transform legal services. For developed countries, that language may underestimate the extent to which existing services can be built upon an integrated within new approaches. So, to represent that distinction, perhaps we might use the word ‘agenda setters’ for the trends below.
  1. There is one ‘game changer’ that needs to be considered. If decision-making by courts, governments and institutions could become satisfactorily automated by technology then much of the need for legal assistance would fall away. This takes us into the realm, however, of ‘algorithmic justice’. Much could be built into eg benefit decision-making systems and court litigation processes to structure and improve decision-making. This was the promise behind, eg Lord Briggs proposal for the court modernisation programme in England and Wales. There is undoubtedly great scope for looking at court litigation processes to change from an adversarial process to structured decision-making. This seems to be thinking behind the current Master of the Rolls in E and W. Experiments in the US and elsewhere will continue to advance how this can be done. But, discretion will remain and prejudice will enter many processes of government as, eg, was manifest in the ‘hostile environment’ proposal for immigration which saw major injustice for the Windrush and other cohorts of migrants. But the limits of ‘algorithmic justice’ and being revealed. Recognition will, no doubt, lead to some of these worries being addressed. But, for the next decade at least, we should recognise that, push as we might on game changing decision-making, supplementary assistance will be required for those facing decisions which will be, in various ways, unfair. Court modernisation will, however, certainly be an agenda setter for the next decade.
  1. Other agenda setters for the 2020s are likely to include:
    1. Incorporating more of the philosophy of self-empowerment
    2. Improvement of online assistance
    3. The integration of digital and analogue ‘blended’ service
    4. Leadership and co-ordination
    5. The growth of ‘digital outreach’
    6. The importance of user-centred design, data and evaluation
    7. Serendipitous developments and services meeting specialist need

Let us follow these one by one.

a. Incorporating more of the philosophy of self-empowerment

  1. Want to defend a murder rap? Want to sue the President of the United States or the Government of the United Kingdom? You will need a lawyer – in ten years time just as much as now. Do not try this at home and hope it will work. But, traditional legal aid in countries like the UK was based on a model where you always needed a lawyer from advice to representation. Cuts during the 2010s have already shattered that model. Covid will  put it under even more pressure. There is no general legal advice service in England and Wales as there was. We need to find a realistic set of policies to respond. That will require the borrowing of the some of the ideas behind legal self-empowerment which have flourished elsewhere in less developed states like the countries of Africa with which Hii and other development funders have been working.  There could be a growing together of experience from very different countries. There may be much that developed countries can learn. 
  1. We will not over the next decade see full service representation and assistance for all clients too poor to pay for their own lawyers. There is neither the funding nor the will, even in England and Wales, to reinstate the legal aid scheme as it had developed in the early 2000s. We will need to specify those cases which require traditional representation and to develop the maximum use of ways in which people with legal need can empower themselves. Here we can call in aid a variety of innovations, including self assembly documentation (in which the US is a leader) and other developments such as case management assistance for individuals (as in the US Citizenship works).
  1. An issue for those advocating self-empowerment will be the extent of digital exclusion and poverty. How many people will be excluded from digital assistance because they lack the skills, confidence or language to use web-based assistance or, perhaps the better general description, suffer from digital poverty?. This will be mitigated by the potential role of helpful intermediaries and by increasing use of video lessening the need for written communication. It is also true that the population as a whole will become more familiar with digital communication as time goes on. However, a respectable estimate of the impact of digital exclusion would be something like 5 per cent of the population as a whole. That could be the equivalent of around 25 per cent of those who are poor.

b. Improvement of online assistance

  1. To help people solve their own problems, there will be improvements in online assistance. This has massively improved in recent years eg the website of Citizens Advice in England and Wales. One element of this is the guided pathway first demonstrated by the Rechtwijzer and now visible in a site like MyLawBC. Advice is individualised through interactive Q and A so that the user gets individually but automatically provided assistance with their problem. 
  1. There are other interactive ways of presenting information eg through videos and FAQs. Here we encounter the potential usefulness (or not) of machine learning and natural language programming in the provision of advice and referral.
  1. Online assistance in terms of information will ‘bleed into’ more interactive tools like document self assembly of appeal and claim forms – as pioneered in the US by such as the products using A2J author and explored by organisations in England and Wales like Law for Life in its review form for a personal independence payment.

c. The integration of digital and analogue ‘blended’ services

  1. To make the best use of resources, the development of ‘blended services’ will increase. Technology offers the opportunity of mix and matching digitally automated services and face to face ones like FLOWS in the UK which brings together family practitioners within a digital package. ‘Hub and spoke’ delivery systems with video outreach linked to a central provider of assistance, as exists in eg some California courts and in relation to assistance to people in the west of England.
  1. Services will needed to be blended in another way. Until 2010, it was just about reasonable to regard legal aid in England and Wales as provided through the centrally funded legal aid and private providers with additions like Citizens Advice and the law centres. It was always anomalous that CA was not seen as a full partner in a comprehensive scheme. With the decimation of legal aid, that is now totally incoherent. Provision in all countries needs to be seen as a mosaic of different providers providing different functions. In the UK, that would be private practitioners, law centres, local advice centres, pro bono ventures, student clinics and the CA service.

d. Leadership and co-ordination.

  1. Diversity of provision demands a degree of co-ordination and leadership not always apparent.  Technology has assisted the creation of regional, national and even international networks. Government would be greatly assisted by taking a lead or funding organisations which can do so – like the Legal Services Corporation in the US. In their absence, networks like the Self Represented Litigants Network in the US or various networks in England and Wales should be encouraged to expand to provide that leadership – from the bottom up.

e. The growth of ‘digital outreach’

  1. Digital exclusion and digital poverty are realities. But opportunities are being developed for using video to take the role of the ‘town hall meeting’ or outreach work more generally. An example would be the work of the People’s Law School of British Columbia. Sheffield Law Centre is exploring this. It provides a new and visual way in which communities may be reached – albeit requiring a degree of digital capacity on the part of the user.

f. The importance of user-centred design, data and evaluation

  1. A major feature of current innovation has been the emphasis on legal design, of providing assistance in the way and to the level that the user wants. That has unleashed a wave of creativity which should be encouraged. 
  1. Data and information has been scarce in the justice field. We have traditionally had little data about who is – and, more importantly, perhaps who is not – using existing courts and tribunals. We need to know much more both about the justice system generally and specifically we need to chart in an empirical way what works and what does not in relation to specific projects and services.

g. Serendipitous developments and services meeting specialist need

  1. There will be unpredictable advances as well. Some, like a number of services of which Project Callisto is an example, will meet very specific needs by specific technological solutions ie in that case, the ability of technology to hold private and anonymised data until released in the context of sexual harassment on campus universities.

Conclusion

  1. Going forward, we need:
    1. to foster leadership in the process of developing ideas;
    2. to develop political backing for addressing the justice gap through technology;
    3. to pool experience, to encourage an empirical approach, draw and communicate lessons;
    4. a shared commitment to addressing the worldwide justice gap.

And let’s conclude my applying these principles to one jurisdiction, England and Wales. What would that mean in practice?

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