Posts From Category: blog

This response was written in December 2021 with Pauline McBride and submitted to the Scottish Government’s Consultation on legal services regulation reform.

---

Written submission from Dr. Pauline McBride¹ and Dr. Laurence Diver.²

This submission is made in a personal capacity and not on behalf of any of the organisations with which we are affiliated.

We are pleased to have an opportunity to the make a written submission to the Scottish Government Consultation on Legal Services Regulation Reform in Scotland. Our submission is structured as follows: in Section 1 we highlight the importance of the independence of the legal profession for the rule of law; in Section 2 we express concerns about the assumptions and limitations of the consultation document and the Roberton report on which it is based; in Section 3 we flag concerns about funding for the Roberton and Market Regulator models; finally, in Section 4, we highlight the need for more careful consideration of the specific characteristics of legal tech and what these mean in terms of appropriate regulation.

Section 1 – Independence of the legal profession

Independence of the legal profession is crucial. It is “a fundamental principle recognised by the international community” and essential to “ensuring that the rule of law is upheld”.³(#_ftn3) That means that the profession must be free from government interference, whether in shaping the practice of law or the business of law. That must be so even (and especially) where government, existing regulators, or commercial organisations see an opportunity to enhance economic growth in the ‘market’ for legal services by defining (or re-defining) their scope and the boundary between reserved and unreserved legal services.

The independence of the legal profession is not well-served by vesting regulatory powers in an organisation which sits outside the profession. For this reason, both the Roberton model and the Market Regulator model (Options 1 and 2) threaten the independence of the profession. We draw attention to the economic considerations at play in the specification of the powers for these regulators – notably, the power to monitor the supply of legal services and the power to act as an economic regulator.

Section 2 – Assumptions and limitations

The consultation document makes repeated reference to the rule of law. However, little consideration is given to the substantive requirements of the rule of law. There is no acknowledgement that the establishment of a regulatory body which is separate from the legal profession threatens the autonomy of the profession and so the rule of law. No attempt is made to explain how this dilemma may be resolved. We do not think it can be resolved. Primacy must be given to the rule of law and therefore to the independence of the legal profession.

We note that there appear to be three separate motivations for the consultation and the proposed reform. First, the Roberton report identifies various failures in the current regulatory regime, noting, for example, the complexity of the complaints system, a lack of clarity about when a practising certificate is required, and issues about pricing transparency. It does not explain why these issues might not be sufficiently tackled within the context of the current regulatory framework.

The second relates to the perceived need for a demarcation between the roles of the Law Society of Scotland as representative body on the one hand, and as regulator on the other. Such demarcation has already been achieved through the establishment of a separate Regulatory Committee of the Law Society of Scotland.

The third, and it seems to us, the main motivation for reform is economic. The consultation document refers to a ‘legal services market’ and the potential for ‘market failure’. It suggests the appointment of a ‘Market Regulator’. It appears primarily to be focused on competition and liberalisation.

Economic considerations such as opening up new markets, preserving market ‘share’, facilitating new business models or enhancing competition should not take priority over preservation of the rule of law. The latter is a fundamental value, underpinning all others in a democratic society. Indeed, it is our view that the rule and theory of law necessarily come prior to any consideration of markets. A narrative that, in effect, prioritises market considerations plays into an instrumental, neoliberal conception of law that puts money before social values, profit before professionalism.⁴ It is a narrative that favours the powerful: the big law firm, the global legal publisher, the provider of legal tech. This is not a neutral narrative, nor does it reflect the impetus behind the rule of law in terms of facilitating the holding of power to account.

The consultation document points to examples of regulatory changes effected in England and Wales, Australia and the state of California. It is important to put these developments into context, in terms of the legal and political cultures to which they pertain. For example, Sommerled and Hammerslev note that while the “common law world was the vanguard in embracing globalisation and neoliberal policies”, Scotland has on the other hand “successfully resisted the extremes of liberalisation adopted in England and Wales”.⁵ The consultation document outlines the nature of the current regulatory regime in England and Wales. It makes no attempt to evaluate the impact of that regime, much less to justify its appropriateness for the Scottish legal system.

Relatedly, the consultation document appears to assume that the legal services market is broadly comparable to other market sectors. It is not. Precisely because of the significance of the rule of law for democracy, for rights, and for the goal of justice, it is not possible or desirable to transpose regulatory models suited to other economic sectors into the legal services market. While other sectors may have moved towards a risk-based regulatory approach, it is not apparent that such an approach is appropriate for the legal profession, and the consultation document does not demonstrate otherwise. More fundamentally, insofar as there is a legal services market, it exists to facilitate justice and the rule of law, and thus it must reflect an underlying normative commitment that is not present in other sectors.

The Roberton report and the consultation document draw support from a study which the former describes as a “small qualitative Consumer Study on Scottish Users of Legal Services (2018)”. This study, carried out by the Scottish Government’s User Research Team, was based on interviews with 12 participants. This is a tiny sample size relative to the adult population of Scotland, most of whom will, at some stage, have reason to seek legal advice. We acknowledge that insights may be drawn from the research but it cannot be considered representative of the experiences of ‘consumers’ of legal services in Scotland.

Section 3 – Funding of Options 1 and 2

The consultation document states that under each of Options 1 and 2 the new body would be funded through a levy on the legal profession and that the cost to the profession would be “intended to be no more than the current system.”

Option 1 anticipates that the legal profession will fund both a regulator and a professional representative body. It supposes that the latter should play a significant role in consulting with the regulator, and would have a role in “providing CPD (approved by the regulator), provide professional services and guidance, issue publications, and be able to seek to influence law reform.” This tends to suggest that overall the costs to the profession will increase.

In relation to Option 2, it is difficult to know why, in principle, the cost of the levy should not be significantly less, since the remit of the proposed new regulator is narrower than that of current regulators. In practice, we anticipate that the setting up of a new regulatory body will result in increased costs for the profession.

Section 4 – Legal Tech

We are particularly concerned about this section of the consultation. Like the Roberton report, it warns against the “creation of barriers to new legal services founded on legal tech through over specification of regulation in legislation.” It appears to favour a light touch approach to regulation and to favour the use of regulatory sandboxes. Here again we see a market-oriented approach.

The consultation document, like the Roberton report has little to say about the range and diversity of legal tech that is either presently available or under development. For example, neither makes any reference to technologies that employ machine learning, natural language processing or statistical analysis (‘data-driven’ legal tech). Neither conveys any sense of the various legal domains in which these technologies are or might be employed, and how. There are no references to systems that offer to prepare first drafts of documents, carry out contract analysis and reviews, secure compliance with regulatory instruments such as the GDPR, or predict the outcome of court cases through analysis of case law, judicial behaviour, or past practitioner performance. The consultation document appears to take it for granted that legal technologies present only opportunities for the development of legal services; there is no recognition that use of these technologies to carry out (or assist in carrying out) ‘law jobs’ may present subtle but profound threats to the rule of law. In terms of how such technologies are likely to impact real-world practice, the well-known risk of automation bias must be considered. The possibility that lawyers become deskilled through use of such technologies, or fail to appreciate the assumptions of these systems and the design choices on which they are based, is less well recognised. For example, some of these technologies presuppose and play into a formalist conception of law as a set of rules to be applied mechanistically without regard for the particular case, the individuals involved, and the overarching claims of justice. Others embed in their designs the assumption that these essential aspects of the law can be represented and found in data, and that legal practice requires nothing ‘extra’.

Whatever the merits or demerits of these assumptions, it is essential that the design of legal tech systems be open to scrutiny. This is to ensure that any adoption of legal tech is in accordance with the values and commitments of the Scottish legal system and profession. We therefore consider that technologies that carry out or assist in carrying out ‘law jobs’ should be employed with great care and, in some cases, should not be employed at all. We are particularly concerned about the use of data-driven technologies which rely on past data to predict (or dictate) the outcome of cases. The use of such technologies for determination of case outcomes, for example, would inevitably restrict the inherent flexibility of law to adapt to its social and historical context. Such impacts might not be immediately apparent, particularly in light of the automation bias mentioned above.

We consider that legal technologies should be regulated,⁶ but do not consider they should be regulated as legal services.⁷ The regulators (at present, the Law Society of Scotland, Faculty of Advocates and the Association of Commercial Attorneys) should, however, develop guidance about the use of these technologies by their members. Such guidance must take into account the implications of different legal technologies for the rule of law, both in terms of equality before the law (its common interpretation) and in terms of ensuring that the underlying ethos of the law is protected. The latter requires that due process, contestability, and access to justice be reflected in both the designs of legal tech applications and in the specific ways and contexts within which they are employed. This is a significant but fundamentally important challenge that the market alone cannot resolve.

Furthermore, we strongly oppose the use of regulatory sandboxes. The regulatory sandbox approach threatens the independence of the regulator. It is designed to favour the interests of developers rather than those of citizens, or the public interest more broadly. Moreover, considering the diversity of legal technologies both at present and currently under development, we suspect that regulatory bodies will not be well-equipped to assess those technologies, whether for compliance with fundamental rights or for conformity with the principles of the rule of law.⁸ Any assessment of the acceptability of legal tech must be carried out with a full awareness both of the assumptions and design choices underpinning the technologies and of the normative commitments of the (Scottish) legal system that are potentially impacted by them.

---

Read More

Written for the Edinburgh University Press blog (Dec 2021)

Tell us a bit about your book

Digisprudence is about the technologies that govern our behaviour, and how they can be designed in ways that are compatible with democracy. We’ve probably all had that feeling of frustration when using our smart phone or a website, that we’re in some sense being controlled or manipulated in what we are able to do. That might seem unimportant, but technology is powerful: imagine a car that won’t go faster than 70mph, no matter how hard you accelerate (even to avoid an accident or to get someone to hospital). Or think about the convoluted process you have to go through to delete your Facebook account, especially if you want it to happen immediately (this could have significant implications in the case of doxxing, or other forms of online harassment).

In effect, the choices made by the designer of a system impose rules on you. But those rules are not like legal rules, which you as a citizen are able to interpret the meaning of, or even ignore (think of the speeding example above). Computer code just imposes itself, often without any input from the citizen (‘user’). My argument is that this is a problem in a democracy. We tend to think that parliaments can’t make whatever laws they like – they are constrained in the first place by a constitution, and after-the-fact by the courts, who can consider whether a rule is legitimate after it is made.¹ I think that, essentially, the same constraints should apply to code: designers and developers shouldn’t be able to make whatever rules they like, if these have an effect on the behaviour and actions of citizens. If we don’t accept arbitrary law, we shouldn’t accept arbitrary code.

Digisprudence charts this problem, setting up a parallel between unacceptable laws and unacceptable code. It then presents a set of design features, or digisprudential affordances, which can help code avoid imposing arbitrary control over its users. These features are about how the system relates to those interacting with it, and to the legal system more widely: choice, transparency (of operation, purpose, and provenance), delay, oversight, and contestability (by the user and via the courts).

Systems that include those features will be compatible with the underlying values of democracy, at least at a foundational level (they will still need to comply with other laws, such as intellectual property, data protection, etc.).

Finally, Digisprudence is a ‘reboot’ for three main reasons. First, because it takes the idea of code controlling us, a.k.a. ‘code as law’, and builds on it by analysing our immediate interactions and relationships with technology in greater depth than before. Second, because it uses longstanding theories from law as a platform to underpin and justify the digisprudential affordances. And third, because it opens the black box of how code is actually made, with a view to making a difference in practice.

What inspired you to research this area?

Although I have an academic background in law, I’ve been tinkering with programming since I was a kid in the late 90s. After undergraduate studies and a spell as a researcher at the Scottish Law Commission, I worked for a few years as a professional web developer. It became clear to me that I had a strange, and perhaps not entirely legitimate power over the interactions between users and the products I was creating. Even with the best of intentions it seemed odd to me that I – like millions of other developers around the world – had this ability to ‘legislate’ design rules that would control part of someone else’s behaviour.

More broadly, like a lot of people I’ve had the sense since the early 2000s – and especially with the rise of Facebook – that there’s something unethical about how technological architectures are so effective at structuring our behaviour and actions. Combined with my own experience as a developer, that was the seed of my interest in this area. Of course, technology ethics has been an academic concern for decades and in the past 20 or so years has become a really significant field. I thought that there was something useful to be said about the crossover between legal theory and technology design, especially given the very important differences between law and ethics.

What was the most exciting thing about this project for you?

I find the strand of legal research that deals in the ‘materiality’ of how law is done really interesting. Law is often quite an abstract field, even when it deals with real-life situations; questions of how rules become reality, through people’s actions or via the architectures that surround us – those are extremely interesting, and relevant not just to legal academics but to all of us as citizens.

How we analyse those questions when those architectures are digital, and created by commercial actors, is fascinating and important from a democratic perspective. It opens up a lot of really exciting and fundamental questions at the cross-over between law and computers.

Has your research in this area changed the way you see the world today?

I’ve come to realise just how often people assume that computers and Artificial Intelligence are essentially good things that can solve the world’s problems. This is the case for many in academia, civil society, and government (both domestic and international). There is a place for these technologies, of course, but the tendency to frame a problem in a way that leads to a technological solution is very common. This is problematic because it leads to the wrong kinds of solutions to the wrong kinds of problem.

In that respect I can say my own trajectory has changed over time: as a technology enthusiast myself, I can certainly identify an evolution in my own views. I have a deeper appreciation for the tension between the ‘solve the problem with the tools that I have’ mindset of the developer, and the ‘are these the correct tools, and is this even the correct problem?’ approach of the philosopher, ethicist, or lawyer. Having a foot in both camps has really helped me to understand how one side views the other.

What’s next for you?

I’m currently a postdoc in an ERC Advanced Grant project called Counting as a Human Being in the Era of Computational Law, or COHUBICOL. One can probably appreciate the overlap between the book and the focus of the project! Our work really deepens the ‘dual view’ I described above: we are a cross-disciplinary team, comprising lawyers and computer scientists. Our focus is on the deep assumptions of both fields, and how they complement and collide with one another. This is especially important when computer systems become more and more embedded in the practice of law, which is something relevant to all of us.

Read More

(Originally posted on the COHUBICOL research blog.)

This post summarises computational legalism, a concept I developed in my doctoral thesis that is borne of the parallel between code’s ruleishness – its reliance on strict, binary logic instead of interpretable standards – and its conceptual equivalent in the legal realm, known as legalism (more specifically the strong variant of the latter).

Read More

(Originally posted on the COHUBICOL research blog.)

Legal normativity is an important theme for COHUBICOL, particularly how its nature might change when the medium that embodies it moves from text to code- and data-driven systems. Normativity is a useful concept in thinking about the role of law and of legal systems; it refers to the purposive force of (textual) legal instruments and rulings that, subject to their interpretation and potential contestation, require citizens to act (or not act) in certain ways.

Read More