Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 11’ Category

Seeking legal help online: the challenge of design

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In December 2020 Roger Smith, who runs the excellent Law, Technology and Access to Justice website (at https://law-tech-a2j.org/,) posted an item about an important report from Australia.

Written by Jo Szczepanska and Emma Blomkamp, and published by Justice Connect (a not-for-profit Law Charity, see https://justiceconnect.org.au/) their recently published report Seeking Legal Help Online –
Understanding the ‘missing majority’
offers a range of practical ideas on how to design self-help resources that can actually be used by those seeking help. In Smith’s words: “It puts Australian experience front and centre of global discussion of a key topic.”

The phrase ‘missing majority’ in the title refers to the fact that the majority of people will not or cannot afford to use the services of legal practitioners to assist in the resolution of disputes or other problems. However, in the words of the report “as the missing majority progressively adopts technology, there are increasing opportunities to find new models of providing cost-efficient and effective free legal assistance at scale”. The report aims to find a better understanding of the opportunities to assist the missing majority through online resources, recognising their limits as well as their potential.

The report sought to answer the following 5 questions:

  1. How do people search for legal help online? The first set of insights describes the variety and mixed results of searching techniques used by participants in this research.
  2. What is the self-help journey like? This looks at the difficulties of trying to solve problems on your own. For example legal jargon is confusing for most people who haven’t studied law; the rules and procedures of the legal system can be opaque; and the process to understand and resolve an issue can be incredibly time-consuming. Indeed the whole process can be highly stressful.
  3. How can different resources help and how are resources used? The report draws on participants’ own analyses and explanations of why they would select certain tools, when they would use them, and what combinations of resources would work best for them and their issue. Where self-help became overwhelming, participants would start looking for a professional to help them.
  4. How can resources be improved? This considered the shortcomings of existing legal resources and the behaviour exhibited by people as they try to decipher and then apply new knowledge. These insights highlight issues of access, trust, accessibility, appropriateness and usefulness.
    Unfortunately, many online legal resources remain limited in their design, simply putting online existing forms and leaflets. Some people with disabilities cannot access or use online legal resources at all because the resources have not been designed with their needs in mind. Resources often also contain overly technical and complex language.
  5. How do help-seekers define a legal problem? This part of the study draws attention to the question of how a diverse range of people who find themselves in need of legal information or assistance try to find that information. Overall, the stories from participants and examples from live searches and testing of resources highlight the differences and commonalities of searching for legal help and information online.

In the light of the findings from the empirical part of the study, the final section of the report presents a series of recommendations and design principles, offering guidelines for improving online legal self-help resources. The recommendations focus on how to involve people with lived experience of trying to use existing resources together with relevant professionals in funding, researching, designing, testing, implementing, promoting, and evaluating online self-help resources.

Suggestions in the report are tailored for a range of different target audiences: users, funders, service providers, and resource makers. They are grouped under five main headings:

  1. Invest in information design and user experience;
  2. Involve people with lived experience in making online resources
  3. Break down silos between sectors, organisations, communities, and self-help
  4. Establish communities of practice to support makers of online self-help resources
  5. Invest in consumer outreach, search engine optimisation, communications, and marketing.

This blog does not reflect the detailed ideas contained in the report. Anyone wanting to develop new online resources should read this report for its ideas about how this might be done in ways that would actually help. The scope for innovations seems almost limitless. Policy on access to justice needs to take self-help seriously.

(This entry has been adapted from the report’s Executive Summary.)

It can be downloaded at https://justiceconnect.org.au/about/digital-innovation/missing-majority-report/

The state of legal services in England and Wales: new report from the Legal Services Board, 2020

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A second report on legal services which was published towards the end of 2020 is that by The Legal Services Board. Entitled The State of Legal Services 2020, the Board reflects on some of the Board’s achievements over the past 10 years sinceit began its work, which it argues have contributed improvements in the provision of legal services. The Board cites, in particular, the creation of new forms of legal service arising from the use of Alternative Business Structures; users of legal services reporting greater satisfaction with the services they receive; and providers coming to see that professional regulation does not create the barriers to innovation in the provision of legal services that was sometimes though to be the case.

However, the Board is clear that there is still much to be done. Their Report notes that::

  • 3.6 million adults in England and Wales have an unmet legal need involving a dispute every year
  • More than 1 in 3 adults (36%) have low confidence that they could achieve a fair and positive outcome when faced with a legal problem
  • Nearly nine in ten people say that “law is a game in which the skilful and resourceful are more likely to get what they want”

While many are concerned about reductions in the scale and scope of legal aid and increased pressure on third sector advice agencies, other factors also contribute.

  • Many people and businesses lack the capability and confidence to recognise legal problems and get help.
  • Comparison websites and customer review sites are not well established.
  • Only 30% of consumers shop around, and only 2% use a comparison service before choosing a law firm.

The Covid-19 pandemic has created challenges for both the profession and people who need legal services. Many are concerned that it has made existing social inequality starker. The pandemic has made the need for services that meet the needs of society more urgent.

To meet these challenges, the Legal Services Board has started a consultative process to develop a strategy – to be published in 2021 – for the next 5 years to address these concerns. The Board has decided that this strategy should be based on the following principles

  • Fairer outcomes – widening public access to advice and support and ensuring that no one has a worse outcome or quality of service due to their background or life circumstances. The sector must also build a more inclusive culture which enables anyone to enter the law and achieve their full career potential.
  • Stronger confidence – resolving long-standing questions around the scope of regulation and broadening access to redress. It also requires regulators to put the right mechanisms in place so that legal professionals deliver consistently competent and ethical legal services.
  • Better services giving consumers the information and tools they need to drive stronger competition, creating the right conditions for providers – including those yet to enter the market – to redesign legal services that respond to their needs. It also entails regulators fostering responsible innovation that commands the trust of both the public and legal professionals.

The LSB has also commented on the Competition and Markets Authority report published in December as follows:

“The CMA’s findings echo the conclusions of our recently published State of Legal Services 2020 report. Although pricing information given to people who need legal services is more transparent, price competition is still weaker than we would wish to see. The range of prices offered by different providers for the same legal service hasn’t yet narrowed in the way we would have expected. There hasn’t been any progress on developing indicators that would enable consumers to assess the quality of providers. Although more people are shopping around for legal services, this trend has not accelerated since the CMA’s study in 2016.

“Regulators and providers can do much more to improve competition in the legal services sector and to make it easier for people who need legal advice to find and compare services that meet their needs and make informed decisions.”

As I have noted in other contexts, the challenge for the regulatory bodies is to know how to transform these aspirations for improvements in the provision and delivery of legal services into practical effect. One thing that it may be necessary for the regulators to do is to indicate more clearly how they see current business models, used by those providing legal services, being developed so that practitioners can continue to be both commercially successful and the providers of legal services needed by the public. Without assistance, busy practitioners may not have the time or energy to think about doing things differently – especially those who are finding the current demands of practice overwhelming.

The LSB Report is available at https://www.legalservicesboard.org.uk/state-of-legal-services-report-2020. This links to the full report and evidence taken from those consulted by the Board.

The LSB comments on the CMA report are at https://www.legalservicesboard.org.uk/news/lsb-response-to-the-cmas-market-study-review.

Regulating the legal profession in England and Wales – new report from the Competition and Markets Authority

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Just before Christmas 2020, two important reports were published about how the legal professions in England and Wales should become more competitive and do more to meet unmet legal need.

I consider first a report from the Competition and Markets Authority which, on Dec 17 2020, published findings from its assessment of the impact of its earlier legal services market study in England and Wales. The CMA’s assessment of changes so far made in the legal services sector found some positive developments but concludes that further progress is needed.

The CMA recommends that the Legal Services Board, working with other regulators in the sector, continues to build on the reforms made so far to improve transparency of information that can help consumers make informed choices. It also states that the LSB must address some aspects of the market study recommendations that still require progression, such as providing more information on quality.

Alongside this, the CMA repeats its call for the Ministry of Justice to undertake a review of the Legal Services Act 2007. This seems unlikely to be progressed in the short term. The CMA is broadly supportive of Professor Mayson’s Review of Legal Profession regulation which was published earlier in 2020.

In the meantime, the CMA advocates that the Ministry of Justice and the Legal Services Board take some shorter-term steps which will deliver regulatory reform in stages.

These are that:

• The MoJ should create, or empower the creation of, a mandatory public register for unauthorised providers of legal services.
• The LSB should carry out a review of the reserved activities.
• The LSB should evaluate the impact of the revised Internal Governance Rules (designed to ensure adequate separation of the regulators’ representative and regulatory functions) before deciding on further action.

While the legal profession as a whole may not regard this report as an entirely welcome Christmas present, it seems clear that the CMA intends to keep up the pressure on the legal profession. More forward-thinking practitioners may however feel that a positive response to the report’s recommendations could create opportunities for developing new ways of working that will benefit both their bottom lines and society more broadly.

I noted Professor Mayson’s report (and his summary of it) at https://martinpartington.com/2020/06/11/legal-services-regulation-the-final-report/

The CMA report is available at https://www.gov.uk/cma-cases/review-of-the-legal-services-market-study-in-england-and-wales#review-report

I will comment on a new report from the Legal Services Board in a separate item.

Proposed Constitution, Democracy and Rights Commission

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One proposal that caught the eye in the Conservative Party’s manifesto for the December 2019 general election was that, following the UK’s withdrawal from the EU, it would be necessary to look at “broader aspects” of the UK’s constitution. The idea was that a constitution, democracy, and rights commission should be established to examine the following issues:

  • the relationship between the government, parliament, and the courts;
  • the functioning of the royal prerogative;
  • the role of the House of Lords; and
  • access to justice for ordinary people.

Other areas would include examining judicial review and amending the Human Rights Act 1998 to balance the rights of individuals, national security, and effective government.

The Government has said that it wants to ensure a range of expertise is represented on the commission. It also wants the commission to evidence from third parties and civic society to inform any recommendations. However, there are currently limited details available on the remit, form, and composition of the commission.

Several commentators and academics have welcomed the general principle of reviewing the UK’s constitutional arrangements. However, some have expressed concern about the context of the commission, particularly coming after the Supreme Court found against the Government on constitutional issues.

Those interested in starting to think about the issues which the Commission, once established, might consider will find the Research Briefing paper, written by Charley Coleman from the House of Lords Library and published in late March 2020, to be an excellent introduction.

The briefing can be found at https://lordslibrary.parliament.uk/research-briefings/lln-2020-0089/

Covid 19 and the English Legal System (11): Civil Justice – results of the Civil Justice Council rapid survey

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As I have already noted here, Covid 19 has had a major impact on the ways in the courts are delivering their services. In particular, much attention has been directed towards the use of virtual or remote hearings – online paper hearings, hearings by phone and hearings by video.

The Civil Justice Council commissioned a rapid preliminary survey of how these new processes were working. The results of that survey were published in early June 2020. It was based on responses to a survey drawn from the experience of those involved in cases in a two-week period in early May 2020. The study was carried out by Dr Natalie Byrom of the Legal Education Foundation.

Obviously, such a survey can be no more than an initial glance at what is happening on the ground. Many of these preliminary findings are what might be expected:

  • many judges and practitioners were finding that they were getting on better with using new technologies than they might have anticipated;
  • they were coping despite a lack of advance training in the use of technologies;
  • the technologies themselves were often not as reliable as participants would like;
  • some types of hearing were more suited to remote hearings than others.

These are the sorts of issue that should be mitigated as all those involved in delivering new services  become better trained and more used to dealing with cases using the new technologies.

From a rather detailed report, four important points for the way ahead may be noted:.

  1. At present HMCTS does not have an effective way of capturing information details about what types of case are brought to court. For example, data is published on the numbers of possession proceedings brought by mortgage companies or landlords against residential occupiers (mostly for failure to meet payment obligations). But it is impossible to get any detailed information about the use of courts for other potential housing law issues. The report makes a strong plea that much greater effort should be made by HMCTS to identify the ‘data points’ which would provide a much more detailed picture of how the civil court system is functioning. Effective planning of future services cannot be provided without more detailed management information.
  2. There was a strong impression that video hearings were better suited for remote hearings that telephone hearings.
  3. There were inevitable concerns that litigants in person might be in difficulty using the new technologies unless adequate support was available.
  4. The survey was unable to capture what lay users of the system, in particular litigants in person, thought of these new developments. It was essential to fill this knowledge gap if the objective of HMCTS’ reforms – to provide services that users want and need – was to be met.

The survey report and related press release can be accessed at https://www.judiciary.uk/announcements/civil-justice-council-report-on-the-impact-of-covid-19-on-civil-court-users-published/

Further information about the Legal Education Foundation is at https://www.thelegaleducationfoundation.org/

 

Public legal education: news from Law for Life

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While the importance of public legal education is widely accepted in principle, it is left to the work of a pretty small charity, Law for life: foundation for public legal education, to continue to fly the flag for this important project.

The aims of the charity are to increase access to justice by providing everyone with an awareness of their legal rights together with the confidence and skills to assert them.

Most people struggle to cope with legal issues, and often don’t know where to go for help. Being able to cope with family and housing issues, sorting out employment and benefit matters or difficulties with goods and services is crucial. These issues are the cornerstones of everyday life that can become drivers of poverty and inequality if left unresolved.

To address these challenges Law for Life

  • publishes the online Advice Now information service that draws together the best up-to-date information about the law and rights available on the internet;
  • creates effective materials (leaflets, videos) that provide practical help on how to manage and resolve life’s legal problems;
  • delivers community-based education and training projects focussing on housing, welfare, consumer, and employment issues with an emphasis on skills;
  • offers consultancy to other organisations.

Updates on the work of Law for Life are provided in regular newsletters, the most recent of which was published on 30 June 2020.

For further details about Law for Life, see https://lawforlife.org.uk/

Advice Now is at https://www.advicenow.org.uk/

The Law for Life Newsletter is at https://mailchi.mp/42bebf74018a/8wt2tlhi1o-3120242?e=f65948d0ee

This has links to the full archive of Law for Life Newsletters.

 

 

 

 

Written by lwtmp

July 13, 2020 at 9:50 am

Computers and the delivery of legal services – the Society for Computers and Law

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It is not hard to imagine that the use of computers will increasingly impact on the ways in which legal and dispute resolution services are provided. Many will resist such developments, not least because they will threaten existing ways of workings with which people are familiar.

But those thinking about how the world of legal practice will develop over the short to medium term should be aware of what is happening and how developments may affect the future, not just in England of course, but universally.

In this context, those starting their legal studies should be aware of the Society for Computers and Law.

The Society’s website explains that it was established in 1973 “to promote the use and understanding of information technology (IT) in the context of the law”. For the first twenty years of its existence it focused more on the technical aspects of IT in use to support legal practices. Since then its focus has shifted more to the practice of IT law as a specialist subject as this has evolved to encompass new issues like the world wide web and digital media.

As a charity, the objects of the Society are

(1) The advancement of education of the public in the fields of: a. information technology law and other related legal subjects; b. information technology as applied to the practice of the law; and c. the law, by the use of information technology.

(2) The promotion of the sound development, administration and knowledge of the law relating to information technology and related legal subjects, both generally and by research and study concerning the same.

The issues which are currently at the forefront of their efforts at the start of the 21st century include:

Operational effectiveness: ranging from the choice of hardware and operating systems through to software selection and development for both lawyers and support teams.

Legal matters: such as data protection, computer contracts and software ownership.

The administration of justice: the impact of IT on the Courts.

Education: promoting the benefits at all levels that the use of information technology has to the legal profession as a whole.

The Society is currently engaged in an important exercise to promote the development of TechLaw in the legal curriculum.

Further information is available at the Society’s website at https://www.scl.org/society

 

 

 

 

Written by lwtmp

July 3, 2020 at 11:56 am

Innovation and the use of technology in the provision of legal services

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The Legal Services Board has just (November 2018) published its latest detailed picture of levels of innovation and use of technology in legal services in England and Wales.

This report looks at the attitudes of legal services providers, sets out the benefits from innovation and considers the perceptions of the main enablers, including the impact of regulation.  The headline findings are:

  • the legal sector makes use of a variety of technologies but the use of services such as Blockchain or predictive analytics are, as yet, rare
  • overall levels of service innovation are unchanged since the first wave of the research three years ago
  • ABS, newer providers and larger providers have higher levels of service innovation.

Although putting a positive spin on the outcomes of the survey, I cannot help thinking that the LSB may actually be rather disappointed at the outcomes of the survey – given all the talk that there has been about the importance of innovation and new technologies.

My impression is that change is happening, but that it will much longer for the full benefits claimed for the use of new technologies to be realised in practice.

You can read the full report at https://www.legalservicesboard.org.uk/news_publications/LSB_News/PDF/2018/20181128_Innovation_Driven_By_Competition_And_Less_Hindered_By_Regulation.html

 

 

 

 

Public Legal Education: the Solicitor General’s vision

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In the past, the Attorney-General tried to promote the cause of Public Legal Education. This role seems now to have been delegated to the Solicitor-General.

In October 2018, the current post-holder, Robert Buckland MP launched a new ‘vision’ to which he hoped interested organisations would sign up.

The Press Release stated:

The statement creates a shared vision for the PLE community to aspire to which will help drive forward legal education initiatives. The statement reveals 7 goals for where PLE might be in 10 years’ time.

The goals are:

  1. PLE will be supported by a robust evidence base, showing what the need is and what works best.

  2. PLE will be of high quality, maintained to ensure that it remains accurate and accessible and useful for the people who need it.

  3. PLE will be universal and reach across all demographics, prioritising children, young adults and vulnerable groups

  4. PLE will be scaled up through delivery by the legal community

  5. PLE will harness technology and be delivered through innovative methods, both on and offline

  6. PLE will be embeded into public services and government departments

  7. PLE will be understood as beneficial and utlised by other sectors

Whether much can be achieved without additional investment in the development of PLE must be a moot point, but I suppose that a statement such as this is better than nothing. The statement was launched at an event organised by the All Party Parliamentary Group on Public Legal Education and Pro Bono legal work.

See https://www.gov.uk/government/news/our-vision-for-legal-education

Written by lwtmp

November 21, 2018 at 3:51 pm

Preventing digital exclusion

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A great deal of effort is currently being put into finding ways of using IT to deliver legal services, whether in the form of: providing legal advice and assistance to those who need it;  conducting various types of legal activity/process on-line; dealing with disputes online.

In general, the modernisation of the practice and procedure of the law through IT is to be welcomed. At the same time, there are concerns that some of the most vulnerable in society may be excluded from this brave new world. They may not have easy access to computers, or the ability to use them. In rightly encouraging digital solutions, at the same time policy makers need to ensure that the most vulnerable are not left behind.

In a recent policy paper, the human Rights group JUSTICE has drawn attention to the importance of ensuring that people are not excluded from the rapidly developing digital legal world.

In their report Preventing digital exclusion from online justice (published in June 2018), they analysed the potential issues that those engaged in the reform of legal procedures need to bear in mind.

The report makes a number of recommendations, directed primarily at HM Courts and Tribunals Service. They include:

  • Greater investment in “trusted faces” in “trusted places” i.e. services already providing digital support and internet access.
  • Considering the specific challenges of providing support to the digitally excluded, especially hard to reach cohorts – including testing Assisted Digital services in regions where the internet may be difficult to access. (Assisted Digital envisages a flexible mix of telephone, webchat, face-to-face, and paper-based support services. HMCTS is commissioning a programme of work to evaluate what types of support and in what combinations works best.)
  • Paying specific attention to highly digitally excluded groups, like homeless people and detainees.
  • Designing online justice services with an independent “look and feel” to reflect the constitutional independence of the courts.
  • Maximising the benefits of the “multi-channel” approach – helping people move with ease between digital access, phone assistance, face-to-face assistance, and paper.
  • Ensuring online justice services cater for the most affordable and ubiquitous mode of digital interaction: mobile technology.
  • Conducting end-to-end pilots of online justice services, learning from hearing and enforcement stages what is required at earlier stages.
  • Researching how people behave in an online environment and choices between Assisted Digital channels.
  • Collecting and making available the widest range of data possible to support research by external experts.

Internationally, there is a great deal of experiment going on with different forms of communicating advice and assistance. There are being kept under review by Professor Roger Smith who, with funding from the Legal Education Foundation, provides – among other things – an annual review of development in the use of IT to increase access to justice. He also writes a blog which looks in mor detail at specific initiatives relating to trying to improve access to justice – not just through the use of new technologies but also new ways of funding them such as crowd funding.

For those interested in how the application of new technologies might change ways in which the delivery of legal services are undertaken, this is an outstanding resource – full of links to detailed initiatives. At the same time, the need for realism in potential impacts is also stressed. It is important not always to believe the hype surrounding new applications.

The JUSTICE report is at https://justice.org.uk/new-justice-report-on-preventing-digital-exclusion/.

The Annual Reviews of digital delivery of legal services can be found at https://www.thelegaleducationfoundation.org/digital/digital-report.

Roger Smith’s blog on developments in Law, technology and Access to Justice is at https://law-tech-a2j.org/publications/

Also relevant is the report, published in July 2018, from the Centre for Justice Innovation, which also looks at public attitudes towards the greater use of IT in the justice system.

See http://justiceinnovation.org/portfolio/just-technology-emergent-technologies-justice-system-public-thinks/