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This post first appeared on Legal Futures on 25th August 2017.

For anyone who has seen Donald J. Trump’s prolific Twittering it may come as a surprise that the man holding the highest public office in the US rarely uses a computer. He shuns email, the internet and word processing. Online news articles are printed out for him and notes for improvement are written by his own hand on these copies and sent by post to the offending author. Trump’s one concession to modernity is a smart phone, which, whilst not attached to his hip in the style of Theresa May’s summer accessories collection, still enables him to shoot from it.

For someone like Trump, digital disconnectivity can be overcome by paying an intermediary to shoulder the inconvenience. For everyone else, engaging with technology is part and parcel of living in the real world. Once upon a time it was enough to know how to use a computer, then it was enough to know how to use a computer and the internet. But now, according to the vision of HMRC and MOJ, we also have to know how to use technology in order to solve our own legal problems and to go to court.

What distinguishes current endeavors to digitize the courts and justice, from previous modernization attempts circa the Tony Blair years, is the adoption of a digital by default strategy. The same strategy that led to a mandatory telephone gateway for legal aid: an initiative that has resulted in fewer calls to the service. Back in the halcyon days of the Legal Services Commission and the Lord Chancellor’s Department, online services were seen as a means by which to promote access to justice and intended to help the public identify sources of help and assistance, including government funded sources such as legal aid. It was recognized that channel plurality was important and that multiple modes of access safeguarded people against the challenges of the first and second digital divide. Austerity, a change in government priorities, and the fact that Abu Hamza has allegedly drained our legal aid kitty means that technology is increasingly being viewed as a shortcut to savings. The recent effort to revive the decades old online court idea is the latest variation on a theme first floated by the Lord Chancellor’s Department in 1998.

Spending an alleged £1 billion on technological transformation of courts (culminating in an online courts service) would not be quite so contentious were it not for the fact that those who promote the idea inexplicably overlook a well-established body of empirical research on legal need and problem resolution. This research (see here for a start) provides us with key insights into the likely ramifications of digital delivery, particularly in instances where that delivery restricts access to services via other modes. It identifies that those with mental and physical ill health are exposed to a greater risk of civil justice problem incidence; that the public generally has a poor understanding of their legal rights; that problem characterization has an influence on the problem resolution strategies an individual adopts; that digital delivery via telephone is not necessarily greater value for money; that those at the younger and older ends of the age spectrum, as well as those with lower education attainment, are less likely to use the internet in relation to resolving a legal problem; and that young people (those we typically consider to be the most digitally engaged) struggle to interact with the internet as a legal information resource and traverse the internet without regard to the reputability of source material or the relevance of jurisdiction.

It is not just the money that is at issue. Not all of the planned ‘transformation agenda’ expenditure will go to digital courts and MOJ and HMCS intend to spend money to save money. At the same time, we ought to consider what we are left with when we sell courts to buy computers. At best, we are left with a service similar in nature to eBay’s dispute resolution platform, a system that is regularly viewed as a paragon of excellence, convenience and simplicity by those who advocate for transformation. That they do, only suggests they have never had first hand experience with the process, where the most likely outcome of a dispute on the platform is both parties leaving negative feedback for each other.

The difficulties of translating eBay’s dispute resolution service to the wider civil justice space is aptly demonstrated by the recent announcement that the Hague Institute for the Internationalization of Law (HiiL), the Dutch Legal Aid Board and Mondria (who were behind the eBay system) have, after ten years, ended their cooperation in respect of the much lauded Rechtwijzer online mediation system for separating couples. Widely touted as an access to justice ‘game-changer’, the announcement took many by surprise. In a statement posted in June, HiiL’s Research Director sought to explain the decision, absolving the technology and looking instead the people and architecture of the justice system that failed to support it.

These issues only serve to remind us that the challenge of securing access to justice cannot be solved by locking coders in a room for 24 hours with pizza and energy drinks, try as the Courts and Judiciary might. Yes, we must start somewhere, but it seems appropriate that our ‘somewhere’ should be at the problem, rather than at the alleged solution. The original solution to the issue of self-represented litigants was to provide legal aid. Then it was to provide tribunals and legal aid for representation in higher courts. Now, in light of the increasingly procedural nature of the tribunals, when combined with the reduction in legal aid, we are back to creating new courts again — only this time online. Presumably, having realized that online systems do not make the process of navigating the law any easier, in a decade or so we’ll move on to algorithmic judges. What comes after that is anyone’s guess, but the robots will surely figure it out for us and I expect when the time comes, we’ll welcome the help.

Access to the internet and the ability to use Twitter, SnapChat or Facebook is not the same thing as being able to use technology to resolve a legal problem and navigate an online court/tribunal system. The fact that you are reading this on an electronic device puts you far ahead of the POTUS on many key computer skills, a fact that should serve as a somber reminder that knowledge, capability and willingness are inequitably distributed across society. Adopting a digital by default strategy in respect of courts and tribunals overlooks decades of research in the field of legal need. If digital justice offers us a more convenient, cost-effective and user-orientated means by which to access justice, then few people would fail to utilize it in preference to legacy modes. Forcing our hand through a digital by default strategy is worrying: it suggests that the Government has little inclination to design an online justice system that we would willingly use.