The notion of a ‘universal basic income’ (UBI) is one of the ideas which is floating around Silicon Valley. It gets this explanation in Brynjolfsson and McAfee’s The Second Machine Age: ‘the government [would] distribute an equal amount of money to everyone in the country each year, without doing any means of testing or other evaluation of who needs the money’. Let’s look at this idea within the specific context of access to justice.
Backers of UBI include Sam Altman, who figured in a recent BBC programme on Silicon Valley and is President of the influential Y Combinator. He is putting his money where is mouth is and his organisation is beginning a pilot study with 100 families in Oakland who will receive an income for a period of up to a year of between $1000 and $2000 a month without any strings. Tesla’s Elon Musk is another fan. So too is Facebook’s Mark Zuckerberg. The apparently radical notion has some history and, interestingly, can trace endorsements among such otherwise conservative thinkers as Milton Friedman and F A Hayek.
This is not the place for a full examination of the idea though the articles linked above provide a good start for any discussion. It is a very individualised approach to dealing with poverty and one with an obvious attraction from those that benefit from the gig economy where a large pool of casual workers willing to work for extra pocket money rather than requiring a living wage would come in rather handy.
However, the main point to take here is the acknowledgement among leading players of the new technological revolution that not all of its consequences are going to be beneficial. New technology is likely to increase income and career inequality. It will make some very rich and some very poor. Amazon and Uber have set the paradigm. A large number of existing jobs are going to be eliminated. For a start, the estimated 3.5m professional truckers in the US are already getting nervous about autonomously driven vehicles. Their UK comrades Are likely to fare little better.
Nearer to the justice market, it is pretty clear that the number of overall jobs will be reduced by the application of artificial intelligence and the introduction of various kinds of automated case management. A few hopeful commentators protest that new roles will emerge. Firms will undoubtedly hire data scientists and other new specialists but asserting that there will be no overall losses is whistling in the wind. Reducing costs is, after all, largely the point. And it is going agsinst the clear view of Silicon Valley leaders speculating about a Universal Basic Income. There is no reason why law will be exempt from the iron laws of the market which will apply elsewhere.
Digitalisation will also hit the administration of the courts – where £1bn is being spent in England and Wales with the purpose of removing staff from the court service and redeploying judges. The main UK legal services market was estimated at just under £32bn in 2016: the US market at $437bn. These are figures large enough to attract the attention of those driving the new waves of change. Indeed, the size and energy of the tech start up market is evident.
Present government policy is to bless the job losses which will come from digital technology in the courts and to press ahead with cuts, now extending to around 40 per cent, of the legal aid budget as it was in 2010 when the Coalition government came into power. These can be presented as totally different but the links need to be considered. The purpose of the latter is to extend austerity and restrain public expenditure. There have been the traditional political arguments over the desirability of cuts of this magnitude which were deliberately targeted at two groups of low political clout – women in the case of cuts to family provision and NGOs in the case of legal advice. It may seem contentious to bring together government cuts and the impact of new technology but the two are linked by the common assault on cost.
The Silicon Valley backers of UBI raise a question which needs to be drawn out: does government policy of cutting staff and legal services make sense in the context of the kind of job losses with Zuckerberg, Musk and Altman foresee? Above all, if UBI has pretty low chances of political success, do any alternatives exist? Because, let’s face it, the attraction of UBI may be more rhetorical than real: it may be best seen as pre-emptive deflection from foreseeable criticism rather than as a politically realistic option. The idea of a basic minimum income for doing nothing surely just does not stand a practical prayer in countries familiar over decades with the rhetoric of ‘benefit cheats’ and, in particular, one like our own which has developed the kind of automated, technology-driven punitive benefit system portrayed in the award-winning film, I Daniel Blake.
The most likely consequence is a major escalation in equality of all kinds for which governments are unprepared.
There can be no question of seeking to limit the impact of technology on legal services – which should be, overall, positive. However, governments surely need to develop a longterm response to the coming jobs armageddon rather than just throwing their hands up when it happens. There are opportunities to open up debate. A House of Commons Select Committee has been established on Artificial Intelligence: it has issued a call for evidence. That gives an opportunity for a wider discussion but, in the field of access to justice, Technological advance in private legal services, predominantly but not only through AI, needs to be linked to the development of Online Dispute Resolution and cuts to the bedrock of legal aid because all three will interact in their consequences for people on low incomes seeking access to justice.
There are a number of points to bear in mind which bring together elements that would conventionally be seen as separate. As a policy area, access to justice has a distinctive nature as compared to, say transportation. It involves similar elements of public subsidy and private competition but, in addition, provides the means by which a society attains an acceptable degree of equality to all its members.
First, access to justice is, as the earlies Coalition Minister of Justice, Ken Clarke, said, ‘the hallmark of a civilised society’ and we need to ensure that it is carried forward as a constitutional right for all.
Second, as a consequence, the right to access to justice trumps austerity: it is a ‘must- provide’ for government. That does not mean that there has to be money for lawyers but there has to be commitment to effective access to justice for all members of society. Any notion that our courts can be cleared of low value domestic litigants to make room for more lucrativeoverseas litigants such as feuding or divorcing Russian oligarchs is just not acceptable. This might, however, be the unintended consequence of the online solutions court. It is similarly unacceptable to exclude from justice those who cannot deal with digital means of communication.
Third, as our economy fractures and implodes, more and more of our citizens will need legal assistance to survive in the modern gig world. The need for effective access to justice will get stronger. For example, the removal of legal aid and assistance for housing disrepair and employment cases looks, in the light of Grenfell Towers and the battles over employment protection, increasingly unacceptable. Public regulation of private provision has been the hallmarkof the post-Thatcher, post-Regan economies. As stronger and stronger market forces are released by technology, states will need to regulate more and more forcefully. The laissez faire approach of the last twenty or thirty years will, hopefully, pass out of fashion. That will require enforcement, both collective and individual, to be effective – a renewed role for legal services to those on low incomes.
Fourth, more effort will be required to ensure the great motors of the new technological revolution pay their fair share towards its costs. It is just not acceptable that a player like Amazon can reportedly increase its profits in the U.K. by over 50 per cent and half its tax liabilities. The big Four – Google, Amazon, Facebook and Apple – will need to reform their attitude to payment of tax if a UBI or any alternative is introduced: government should ensure that they do. The new world will need strong government to counteract the fracturing impact of technologically led destruction. Silicon Valley seems to have in mind others for the raising of the costs of a UBI and not more tax payable by themselves.
Fifth, a logical response to both the ravages of public austerity and technological development is to buttress the idea of community in the face of destruction which may well be as severe as that which swept through mining communities in the 1980s but which, this time, will be distributed through the whole economy.
A very practical illustration of the value of community legal provision is provided by the way in which the UK’s most venerable law centre has played a blinder in pulling people together in its local community in the aftermath of the Grenfelll Towers fire. There is valuable symbiosis between a community-based delivery system for legal services, like the community legal clinics in Ontario or North Kensington Neighbourhood Law Centre, and the digital delivery of digital advice and information through a mechanism like MyLawBC. They are not alternatives: the one should supplement the other.
Finally, never mind left or right, the smart response to the current threats to our society is surely to reverse a blind austerity designed simply to reduce government expenditure without discrimination; to ensure that technological businesses pay their share in a tougher approach to tax overall; to foster community-based projects which will hold together those whichare all too likely to be split asunder; and to develop career paths – not benefit opportunities – for those who want to work with distinctly human skills – for example, in arts, care, health and even the human element of the practice of law. People need roles and the value that comes with them within their communities: not dole from an abstract and distant government.
Silicon Valley leaders are being more foresightful than most politicians in recognising the problems to come. That does not mean that the individualistic solution of a Universal Basic Income Is the answer. But players in the justice field need to engage in the debate that this idea should engender and not limit themselves to the micro effects within a narrow field of technology. We are at a moment, as – to their credit – some close to Silicon Valley recognise, where the whole effect of technologically driven change will be greater than its individual parts. We, as societies, need a coherent response before it is too late.