This is a summary of Professor Roger Smith’s evidence. This long blog is divided into three parts: the complete text of the Written Memorandum he submitted in advance of his appearance on 8th March 2016, some opening remarks, and his answers when questioned by Commissioners.
Roger Smith’s CV
Professor Roger Smith OBE is a solicitor and expert on legal aid, technology and access to justice in domestic and international contexts. He has previously been the Director of Legal Action Group (LAG) and JUSTICE, as well as working for organisations like the Child Poverty Action Group and the Law society.
Roger Smith OBE
- A number of principles and observations should underlie consideration of future policy in relation to the provision of justice and access to it. These are not inherently political: the principles should be capable of agreement by all political parties.
- The extent of the cuts to legal aid other elements of the justice system has been such as to challenge the paradigm on which it is constructed. It would seem that we can no longer afford a model in which we can run an adversarial justice system in which an adjudicator in any serious case can rely on the legal representation of both parties in roughly equal terms. Personally, I regret this but the financial framework provides an unavoidable bracket around what can be provided. The current spend on legal aid is around £1.6 billion. It would seem imprudent to think of that expanding by anything more than, say, a maximum of 10 per cent. We have to face the consequences of that assessment of practicality. We will not return to legal aid in the form to which we have been accustomed prior to the LASPO reforms. So what are we going to do about it?
- We should begin by defining the task. For the Commission, this is expressed on the Fabian Society website as follows:
‘The Commission will seek to determine how the State can guarantee, in the context of an ever greater strain on public finances, that those who need access to advice or representation in order to enforce their rights have access to it.’
I believe that this is too narrow. It should be expressed as
‘how the state can ensure that citizens obtain their constitutional rights in relation to the provision of justice guaranteed by the state.’
In other words, we need a justice policy – not a legal aid or even an access to justice policy – which includes formerly separate consideration of the operation of the courts, tribunals, legal aid and the advice sector. If we can make savings in one category, we should be able to carry those over to fund within another if that would be helpful overall.
- There needs to be cross-party agreement on the objectives of justice policy. Happily, the objective can be articulated either in terms of glorious implementation of the timeless principles first outlined in Magna Carta and honed by the common law (see for example Mr Justice Laws’ judgment in Witham ). Alternatively, those that favour the European Convention on Human Rights can point to the summary of most of those principles in its Article 6 as going some way to expressing them in a modern form.
- The objectives of the government’s justice policy need to be built from the ground up – with nothing assumed about how they will be met. Legal Aid is the answer to a need: not the need itself. Any government has, in my view, a duty to ensure that:
Every citizen understands their legal rights, legal obligations and the constitution of the UK;
Every citizen can exercise their rights or defend themselves from the assertion of others’ rights against them;
Those citizens that require assistance to exercise their rights by way of information, advice or representation can do so in an appropriate way and at a proportionate cost.
- A construction of a hierarchy of duties in this form reverses the usual approach. It is necessary to begin with the obligation to provide information and education. This will include what is provided in schools (out of the immediate remit but important) and what is available on general legal information websites such as org.uk, advicenow.org.uk or specialist sites like that of Shelter. In this context, there should be increasing use of the Internet to provide assistance through interactive provision such as the Rechtwijzer in The Netherlands; the kind of site that which Relate is developing here along similar lines; or MyLawBC in British Columbia – both of which are also based on the Rechtwijzer. We should accept an Internet-led approach to general advice while accepting that we should assume that perhaps only half the population can use it effectively on their own. We should, however, encourage – and fund – organisations on the ground – like the physical CABs and other independent and/or specialist organisations – which can help people on a face to face basis. We should experiment with the use of video based face-to-face communication in areas which are ‘advice deserts’ lacking physical advice agencies but which may have other outlets for assistance.
- We should accept that courts and tribunals must now, in principle, be constructed so that a person can resolve their own case through litigation if required. We should use technology as much as possible to do this. We should fund assistance for litigants through web and physically based provision in tribunals and courts. We should facilitate electronic filing. We should implement automated document assembly so that a litigant – some perhaps with minimal assistance – can file papers in an orderly way. We should have ways in which those without credit or debit cards can pay court fees. We should construct small claims procedures that reverse the usual expectations and are built to a proportionate cost for the litigant and promise resolution within a defined time unless there are good reasons otherwise. It would be interesting to experiment with penalising a court administration by requiring it to return a proportion of fees if it did not meet time expectations in the same ways as are airlines. It is surely time for the public sector to meet the standards of the private.
- The consultation has specifically asked about personal injury litigation. Net-based provision should encourage parties to reach a settlement on acceptable terms. This has been pioneered and piloted in The Netherlands (though established interests saw that it got no further). Court-supervised software should encourage each party to state their case; minimise disagreement and come to settlement if possible or, if not, to identify and minimise divergence. This could be part of what the Briggs report on the structure of the civil courts has called Stage 1 of the small claims procedure. The relevant law on liability and on quantum can be built into the system. Those cases that lead, nevertheless, to litigation should be funded by a variant of legal aid subject to a means-tested administration fee. We should return to a modified form of legal aid with a legal aid administration responsible for consideration of merit and remove the uplift on costs that has been possible under forms of conditional fee.
- Court fees should be means-tested on a transparent basis e.g. automatically calculated on issue. Excessive fees such as those in employment tribunals should be removed. No fee should represent more than the cost of the transaction for which it is levied.
- There should be a combined review of criminal law and procedure with a view to reducing cost. Consideration should be given to employing counsel, selected on a competitive basis, on annual retainer with an obligation to work for an agreed minimum number of days per year in return for a guaranteed annual sum. The emergence of a smaller number of more concentrated criminal solicitor firms is now probably unavoidable. The consequence should be recognised. We are moving effectively to a form of contracted public defender scheme. So, we should accept quality-based assessment based on the best models in the world for quality control. In my view, that means Chile where those supplying public defence are monitored in relation to their actual results in terms of acquittal and sentence as well as through tape recordings of actual hearings. We should seek to make savings in criminal provision to be able to restore cuts to civil legal aid.
- We should provide assistance for those going through divorce. In the first instance, this should be through net-based advice and educational provision of the kind available in the Families Change programmes in British Columbia and California. Legal aid should be extended to cover an adequate definition of domestic violence.
- We must address the issue of the withdrawal of legal aid for social welfare law. The first line of provision should be through Internet-based provision with support from appropriate institutions through face-to face, physically present advisers or video-connected advisers. These could be both not for profit centres like law centres, CABs or Shelter and private providers operating under contract. I would seek a coherent regional network of provision. I would wrap this level of provision up with the general advice considered earlier.
- An overall justice policy requires appropriate institutional support. This should be led by the Ministry of Justice and the Lord Chancellor. There need to be provisions to counter institutional inertia. The Ministry should fund a Justice Commission chaired by a senior judge whose task is to advise on, foster and evaluate innovation. It should report annually. As to administration of the courts, Her Majesty’s Courts and Tribunals Service could continue as now. There should be a separate statutorily created body responsible for the funding and/or co-ordination of all aspects of Legal Aid, Advice and Representation, including what has been the separate voluntary sector. It is noticeable that countries with such a body e.g. The Netherlands, the USA or most of the provinces of Canada are encouraged to undertake much more innovation than is our rather static Legal Aid Agency. It will also avoid the problems that will undoubtedly come in relation to the rather shaky provisions as to independence of the Director of Legal Aid Casework.
I am talking about a constitutional right to justice, not rights granted by politicians.
It is in my view important to consider the budget that is likely to be available. I assume it will be £1.6 billion. Realistically, the legal aid budget will not go back to £2 billion. With a following wind there might be a 10% increase, but that is more than I think it would be prudent to allow for.
It follows that the paradigm since World War II for public funding of legal aid is over: that system is bust. We therefore need a radical rethink, combining legal assistance and representation with funding the courts. It is an opportunity to come up with some interesting proposals.
The one bright star on the horizon is the technological revolution. This provides opportunities for the law. The important question is what do we need if the state is to perform its duty of providing justice – NOT merely access to justice. Legal aid is just one part of the answer.
Disputes need to be resolved fairly, whether the dispute is between the citizen and the state or between citizens. The citizen has a right to information: the state should ensure that the citizen knows what his rights are and how to exercise them. It should also put money into a procedure for adjudicating unresolved disputes. Between these two extremes, it should provide a graded system of information. What is new is that this will be digitally led. There should be better provision to assist the courts.
I have no prejudices against the use of salaried lawyers. In other countries public defender systems work well. The bottom line is that we should reconceive the whole process.
Questioned by members of the Commission
My interest in this topic began when there was a proposal to use hotlines to replace face-to-face advice. I knew of research in the United States. Then, with Alan Paterson of Strathclyde University, I stumbled into the world of technology. My report on digital delivery of legal services to people on low incomes for the Legal Education Foundation came next. I will be starting an update on this report this afternoon, and there are exciting possibilities. And all this leads on to Lord Justice Briggs’s proposal for online dispute resolution.
There are three main hubs for the new developments:
First, there is the collaboration between the Dutch Legal Aid Board and an academic institution that has produced the Rechtwijzer. This was initially designed for matrimonial clients. It is web-based, with guided pathways (including mediation). The hope is to make provision that is better and cheaper than exists at present. The new Version 2 is much more ambitious. It brings people close to the resolution of their disputes. The Dutch are entrepreneurial. They used to sail the seas in search of wealth. They are selling their wares. They would be happy to see you. Go on their website with a Google translator. This is a paradigm vendor. No other website looks so good. Legal advice websites are usually boring. The Rechtwijzer (like BA.com) gets you the information you want. The Dutch will sell Rectwijzer wherever they can
Then there is the work of Relate. You should ask Laura Dyson about it. They have put it online. It would be interesting to know where they have got to.
In British Columbia, MyLawBC is coming into operation very soon.
There are three organisations in British Columbia:
In Victoria, civil servants are devising an online resolution tribunal. It has not yet started to operate. The scheme is much more ambitious than a small claims court. It also gives advice.
Then there is MyLawBC;
And, thirdly, there is the Justice Education Society’s public legal education website.
A Californian court bought a program from the Justice Education Society called “Families Change”. It helps people though divorce and the problems that affect children after their parents separate. It gives a representation of a village. You walk about and learn various things.
The Internet is delivering information where it is needed. California is a hub, including electronic filing and other things it is promising to do. You should study what is going on there.
On the question of simplifying the law, I believe that it is the prime duty of the state to ensure that all its citizens receive justice. Simplification is easier to talk about than to provide. The Dutch do it. But our process of law-making makes things complicated. Nobody would argue that the law should be as complicated as it is.
I have no objection to the House of Commons Justice Committee expressing interest in the Law Commission’s plans to simplify the law. However, I teach terrorism law. There was a very complicated interaction between statute law and case law, and then there were the control orders, followed by TPIMs. The law is extremely complicated. I don’t dissent from the proposition that simplification is desirable.
Yu will need a constitutional lawyer to advise you on what our unwritten constitution says about justice. I don’t know how the case law has developed. This is more a political point because politicians can always change things. I simply want to assert that there is a constitutional right to justice. Magna Carta, ECHR Article 6 and Laws J in Witham are good starting points. The common law seems pretty clear to me. I am talking about a constitutional principle, a right that is enforceable.
I am not the right person to answer detailed questions about the effect of the cuts. The number of people receiving publicly funded advice on welfare law  has dropped by 80%. Others can talk to you about the effect of this. To find where savings might be made you will need to find a sceptical legal aid practitioner who would be willing to spill the beans about the areas in which he/she is overpaid. Legal aid has been pared to the bone, but legal aid bureaucracy is still very expensive. Given the current political and economic climate, I am nervous about suggesting where money might be better sent. There would be a danger that the cuts would be made but the necessary replacement services not provided.
On the question of salaried public defenders, I would make a distinction between civil and criminal. I started in a law. If they are well managed centre law centres provide a good way of delivering services. For poverty law I would combine Internet provision with salaried provision on a tailored basis. People usually think of crime in relation to public defenders. There was, however, a major difference between Judicare and public defenders. Now there is not much difference, whether the provision is salaried or under contract. The US Federal public defender system is good. So are some of the state systems – in Oregon and Cook County, for example.
The major problem lies in the availability of resources. You get what you are willing to pay for. We will have to take decisions on the question whether public defenders are desirable. In this country a Labour Minister who was soon to lose his seat commissioned research designed to achieve the result he wanted. In this research  a comparison was made between the cost of start-up public defender systems, partly in Cheltenham and other peripheral places, in their first year of operation and the cost of a properly functioning independent lawyer’s office. I would discount that research. There is not such a stark distinction in comparative cost now.
There are no problems about judging outcomes by criteria based on quality. In Chile the monitoring is very tough. They look at the results of cases, clients’ sentences etc. They also take and listen to tapes of proceedings. The reviewers are fully funded and fully employed.
I wouldn’t mind some public defenders being drawn from the Bar. In New South Wales some advocates were paid a retainer for one year at a time. If funding makes it more costly to use the Bar, you should get six high profile barristers to do public defence work with the likelihood of preferment when they have finished their stint. Legal aid funding has been good for the Bar, but as things stand it is very expensive, and with too much money going to the Bar, civil advice and domestic violence help is underfunded. We must free up money from somewhere out of the money we have been allotted for legal aid.
There should be a single justice fund. The spending on courts and tribunals and the spending on civil and criminal legal aid should all come out of a single budget. Then you can decide whether to buy yourself a judge or a QC or a lawyer or a website. Ultimately a minister has to decide on spending choices.
The Legal Aid Agency is a costly monstrosity. There is no evidence that it is innovative or entrepreneurial or commercially minded. You should contrast the UK with the USA or some of the Canadian provinces, where there are strong legal aid boards independent of government. The abolition of the Legal Services Commission was a mistake so far as the fostering of innovation was concerned. Nothing is going to change with civil servants stifling momentum. In other countries legal aid boards have powerful chief executives (as Steve Orchard  used to be). Policy-making here has now been stifled, and there is concern about the independence of the Director of Legal Aid casework.
In other countries powerful legal aid organisations are given the power to innovate. Look at the examples of this across Canada, for instance. The law has massive interests at play in resisting change – the professions, for example. There is so much incentive to do nothing. At least policy was being made in Steve Orchard’s day at the Legal Services Commission, and research was being conducted there until it was abolished. In other countries there are Access to Justice Commissions, often headed by a judge.
I have watched tribunals as they have become part of HMCTS. Sometimes they display greater professionalism than they used to, but they are often horrendously judicialised. The Employment Tribunal is a tribunal that has lost its way. There is a high entry fee, and it has overlapping jurisdiction with the county court. Lord Justice Briggs discusses this in his interim report. Claimants are seeking common law damages in the county court via a less expensive process. Ombudsmen are free, but are not necessarily better.
Personal injury law is an area where the use of technology can help. A system called PICE  in the Netherlands got nowhere. It tried to arrive at an agreed statement of facts on the way towards agreements on liability and quantum. It never got beyond a pilot stage, because there was so much opposition from the legal profession, liability insurers etc.
Social security tribunals have also lost their way. Presenting officers often don’t turn up until there is an appeal. I think that online courts offer a way forward here, so long as the parties play their part (including the Government). The whole system should be moving forward towards identifying the issues that are in dispute. We want a system to solve the problems affecting the Department of Work and Pensions (DWP). I would look at an adjudication system that is backed by automated document assembly and by a means of guiding people through the information they need to provide. People should be guided through the machine – or provided with face-to-face advice if they are not up to doing this on their own. The question is: how can we make the DWP processes better? There ought to be automated processes first that deal with all the administrative stuff. Ultimately there will be a question of fact to be decided, which will need a medical assessment.
You shouldn’t plan the future by taking categories of law one by one: if you do there will be a long queue of issues waiting to be tackled. If you tried to embark on an academic study of questions of law, area by area, you would face all the same problems as the Law Commission has.
Lord Justice Briggs shows that the future is in online courts. His is as good a point of entry as any. How do we get housing disrepair disputes into court? The Rechtwijzer is moving from family to housing and other areas. Consultation with stakeholders leads to the development of guided pathways on how to resolve disputes in the particular field.
I wouldn’t support the return to a system of Legal Help because of the cost. The Green Form scheme was brilliant when it was started, but the law centres and the legal profession saw they could make a killing out of it, and the cost of restoring it would be enormous. Those days are gone. Today you should begin by studying what the Internet can achieve. I know that some people cannot use it, and they need to be provided for.
You mustn’t try and justify spending more on legal aid by talking about the savings that would be achieved elsewhere if legal aid was restored in particular places.
We are spending £1.6 billion on legal aid and £3 billion on the courts. There is bound to be a contrast between cheap and cheerful provision lower down and the high fees in the higher courts. There should be a finite allocation of public resources devoted towards on solving people’s problems.
We don’t know what technology can achieve. 50% of people can use the Internet for legal advice at present and 50% can’t. Actually we don’t know how many people can use the Internet to resolve their disputes, but I despair at the idea that it is not worth doing. I have looked at the resolution of housing disrepair cases all round the world. We have a very long way to go in improving our advice websites and integrating what they do into systems for determining disputes. Yes, of course many can’t use the Internet, but we should give it a go. Employment and housing are priority issues. We simply don’t know how much technology can achieve in these two fields.
True believers say that Artificial Intelligence can predict how long should be spent on a case (to avoid us having to bear the cost of LAA bureaucracy). I don’t think we have got that far yet, although I think it is likely we can achieve it in due course.
Conditional Fee Agreements are another abomination. They are a way of compensating solicitors for risks they don’t take. They were introduced as a way of keeping high street firms going once legal aid was withdrawn from personal injury cases. I would bring forward some form of self-financing funding system to support personal injury litigation. Not a Contingency Legal Aid Fund (CLAF), although this solution possesses the crucial element of the need to assess risk. Having to put money upfront is the problem that confronts the creators of CLAFs. But we need some form of regulated self-financing system. Any costs that are recovered should be paid back into the Fund without any uplift. Automated systems should take the parties throughout the salient points in a case, which must then proceed to court if this is necessary.
I am recommending some form of Justice Commission. Looking round the world there are a lot of advantages in setting up a Commission as a means of promoting innovation. There is the Canadian Forum for Civil Justice, for example, which has worked well. There is also a Commission in Nova Scotia which is headed by the Chief Justice. These Commissions have no money except for research, for which money is coming from various foundations. Most of them have a judge in charge. There is a balance to be struck here. A judge will suffer from political constraints. On the other hand he/she will be interested in promoting justice.
I think the Civil Justice Council points the way to what I am talking about, with an expansion to include criminal justice. There should be a 12-person board, bringing in the major stakeholders.
In Ontario there is significant funding for legal aid: it is a good system. But Quebec is also reasonable, and British Columbia the most exciting.
I do think that realistically we should do the best we can with the money that is now available, with a justice budget within the MoJ. There is a gradient between finding out what your rights are and being a party in a case in the Supreme Court. All the requisite funding is now within the MoJ except for Citizens Advice funding. The Personal Support Unit, the Royal Courts of Justice’s Advice Bureau and the arrangements for helping Litigants in Person all currently fall outside the allocation of money for legal aid. They should all be part of the response that is required from the state when it provides justice.
How do we achieve innovation without the process getting very costly? The solution lies in a mix of digital solutions and face-to-face advice and possibly public defenders, too. There are issues around service delivery. You should look round the world and see what is being done in different places.
In the USA, 1% of the budget of the Legal Services Corporation goes on a technology grants system. This incentive gets people to think how they could do things better. There should be a challenge to people to come up with ideas. Prizes help, especially if they are awarded by a Minister. Here the Legal Aid Agency stifles innovation.
When a guided pathway approach is implemented, part of the process is inquisitorial, as the system draws out the contents of what will be a statement of claim. And if a judge faces two LIPs who don’t know the law or how to present relevant facts, inevitably he/she will move towards an inquisitorial approach. Judges must be less remote if there are a large number of LIPs. But as a matter of philosophy I wouldn’t move away from a basically adversarial system.
To build up personal injuries cases, we try to reach an agreed statement of facts and then identify where the disagreements lie. The system will demand that you produce the documents to prove your case. It will be a system designed to bring people together.
My reading of history is that the Legal Services Commission had a real strength when Steve Orchard was delivering services at a time when policy was minimal. He had the data and he knew what was going on. Ministry officials should have lumped it. It was a golden time. Policy was developing. Steve Orchard controlled the budget. I think the Ministry wanted a weaker Board.
Lord Justice Briggs’s plans will succeed if more people enter Stage 1 than do at present, and fewer enter Stage 3. We want to bring more people into the pot. I would divide Stage 1 in two. Stage 1A would be the broad pre-action funnel and Stage 1B seeks determination by a court (or prior agreement).
Judicial review is the most complicated area. It is concerned with constitutional accountability. It would be the last place for IT: it is least suitable (and personal injury litigation is the most suitable). These cases take a lot of bottoming out. Technology will do best where the area is not too complex.
If you can attract income from other sources in addition to the £1.6 billion from the state, I would support it.
There should be an automatic rebate on court fees following a means test.
We are currently bumping along the bottom, but any new Government will say that this is what we have got to live with. It would enable people to know where they stand if the Ministry of Justice is told that this is your budget for justice for the next 5 years. I believe that Central Government has an overall responsibility to ensure adequate access to justice. There should be an overall central plan in relation to the provision of what is to be met from the budget. There should be some local provision – for advice agencies, for example – but a central website and central co-ordinating provision will be essential. I would have 12 regional centres which would make physical provision to support the websites. The CLACs and CLANs were a bit heavy-handed. Each centre should have £250,000 per year to supplement the websites.
We should maximise people’s capacity to understand their entitlements and then minimise the number of people who have to go to court because they cannot settle their dispute. There should be a law that the arrangements have to be simple and straightforward. It would be helpful to have simple propositions.
With a digital means of delivery all the costs are upfront. It will cost money upfront, but I don’t think a lot of money will be needed: I would resist big bangs. I would do it incrementally, starting with housing. I would encourage Shelter to devise the best housing website on the Internet.
Finally, the Commission must look at the Rechtwijzer. Overseas jurisdictions should be studied and allowed to make their mistakes, so that we can learn from them.
 “We will sell to no man, we will not deny or defer to any man either Justice or Right.”
 “Access to the courts is a constitutional right; it can only be denied by the government if it persuades Parliament to pass legislation which specifically – in effect by express provision – permits the executive to turn people away from the court door.”
 “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law… Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
 Face-to-face legal services and their alternatives (R.Smith & A.Paterson) (2014).
 Roger Smith – Digital Delivery of Services to People on Low Incomes (December 2014).
 Lord Justice Briggs: Interim report in the Civil Courts Structure Review (January 2016).
 “I prefer to refer to poverty law, not welfare law”.
 Evaluation of the Public Defender Service in England and Wales (Lee Bridges et al, 2006).
 He was Chief Executive of the Legal Services Commission until 2003.
 This “personal injuries claims express” project was devised by some of the team who had been responsible for the development of the Rechtwijzer.
 “ Personal injury litigation is an example of its own. I don’t know the answer. How do we deal with it in an efficient way which enables people to settle fairly with insurance companies?”
 It has an annual budget of $4 million per year.
 The Technology Initiative Grant Program. “Since 2000, when Congress first appropriated special funds for the Technology Initiative Grants program, LSC has been a leader in the development and use of technology to more effectively meet the legal needs of low-income Americans. Over the past 16 years we have awarded $53.2 million in grants for more than 640 projects that leverage technology to help meet the civil legal needs of low-income people. In 2016, we have approximately $4 million available for TIG awards.”
 I.T. is there to help people prepare for court, with documented assembly preparation. It helps people to present their case in a way that is more appropriate for the dispute resolution system.
 For example, bank levies in criminal fraud cases in the banking area, or frozen assets being used to pay costs into the Fund, or by attracting contributions in myriad forms.
 Community Legal Aid Centres and Community Legal Aid Networks, which started to be developed between 2007 and 2010.