Following drastic cuts to legal aid in the UK with the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO), the concept of access of justice has come under strain. There is a suggestion that this problem can be addressed through technology, but this comes with a risk of digital exclusion. In this article, I argue that when complemented with the provision of digital training and expert assistance, technology is a useful tool for furthering access to justice.
Access to justice may be defined descriptively as the ability to access legal information, legal advice or representation in court. Normatively, it may be defined as the ability of each individual to gain an effective remedy through the courts and protect their rights in the same way as others around them. Technological developments have the potential to increase access to justice. The mere act of making legal documents freely available digitally can increase access to legal information. This can be taken further by using technology to simplify complex legal information, as illustrated by the Decoding Law Project in Hong Kong.1 The use of mobile apps and chatboxes to provide information and signpost people also has the potential to increase information on one’s legal rights and options. Finally, the use of online courts, where the whole legal process is conducted online rather than in a physical courtroom, has the potential to reduce costs, increase access to the courts and ensure that people are able to get appropriate remedies easily. This practice has started in countries like Canada,2 and is in the process of starting in the UK.3
However, we have reason to query whether the use of technology will really increase access to justice. Those who are most at risk of being unable to access justice (the poor and vulnerable) are less likely to be digitally literate. This can be seen in the administration of Universal Credit online, with almost half a million people needing help to apply online,4 and in Scotland alone 34% of applicants seeking help from the Citizens Advice Bureau because they could not access the internet.5 This shows the significant risk of digital exclusion posed by technological projects. While technological projects are likely to increase access to justice for those who are digitally literate, it will not necessarily do so for others.
It can be argued that in our modern world, the use of technology and the internet is so widespread that the risk of digital exclusion is insignificant. In this light, Professor Susskind has argued that only 5% of people face the risk of digital exclusion, following research that suggests, “90% of adults in the UK last year had recently used the internet and a further 5% were ‘proxy users’, helped by children or grandchildren”.6 However, this reasoning is unconvincing. Even if this research was informed by a truly representative sample of people, the fact that 90% of adults had recently used the internet does not mean that they are digitally competent enough to use online courts. Moreover, the fact that they had accessed the internet recently in the last year, does not mean they have regular or easy access to the internet. This point is illustrated further by Jodie Blackstock, who explained that, “just because someone could open a web page did not mean they were able to fill in a legal form on their own.”7 Indeed, a survey by Support Through Court shows that although 50-75% of participants were largely digitally literate, 70.5% of them, “thought they would still need help with a court form, even if there were a more understandable version online.”8 This shows that the risk of digital exclusion is significant, even for those who have access to the internet.
A related point is that even those who are digitally competent and have access to the internet, cannot effectively solve their legal problems without legal expertise. While technology can be harnessed to provide people with all the information that they need, it cannot give them the legal expertise to be able to apply the information effectively – lawyers go through many years of education and training for this. We cannot therefore expect a lay person with no legal background to understand legal information with no expert help. As Lucy Scott put it aptly, “Knowledge is power, but pure information isn’t necessarily knowledge.”9
Overall, to be effective, technology must be supported by “face-to-face help”10 from people with legal expertise, as well as the provision of free digital training and internet access. Without this, the use of technology to further access to justice will have the ironic effect of decreasing access further. The state has to step up to its responsibility in not only funding technological projects, but also providing training and assistance to supplement this. The £1 billion court modernisation scheme in the UK11 must therefore be supported by projects to provide training and assistance. This is the only way to ensure that people are not digitally excluded.
Alvin Lum, ‘Hong Kong students develop web browser chatbot that helps you decode complex legislation’ (South China Morning Post, 12 May 2018) https://www.scmp.com/news/hong-kong/community/article/2145843/hong-kong-students-develop-web-browser-chatbot-helps-you
Roger Smith, ‘Take Note of Canada’s First Online Court’ (New Law Journal, 23 June 2017) https://www.newlawjournal.co.uk/content/take-note-canada-s-first-online-court
GOV.UK, The HMCTS reform programme (9 November 2018) https://www.gov.uk/guidance/the-hmcts-reform-programme
Emma Youle, ‘‘Digital Exclusion’: 470,000 Need Help To Apply For Online-Only Universal Credit’ (Huffington Post, 12 February 2019) https://www.huffingtonpost.co.uk/entry/universal-credit-online-only-help-apply_uk_5c617f69e4b0eec79b262a34?utm_hp_ref=uk-universal-credit
Graham Martin, ‘The shocking digital divide that punishes Universal Credit claimants’ (Third Force News, 17 May 2019) https://thirdforcenews.org.uk/tfn-news/the-shocking-digital-divide-the-punishes-universal-credit-claimants
Nick Hilborne, ‘Susskind clashes with MPs on digital exclusion’ (Legal Futures, 26 June 2019) https://www.legalfutures.co.uk/latest-news/susskind-clashes-with-mps-on-digital-exclusion
Support Through Court, Online courts – an LiP perspective (2017) https://www.supportthroughcourt.org/media/1413/online-courts-an-lip-perspective.pdf
Magda Ibrahim, ‘How technology is granting public access to justice’ (Raconteur, 30 November 2018) https://www.raconteur.net/risk-management/technology-public-access-justice