October 30, 2019
TLEF sought expert legal opinion from Robin Allen QC and Dee Masters of Cloisters chambers over impact of using algorithms.
Post-Brexit EU Settlement Scheme, and welfare benefits decisions made using AI may disadvantage women, the equality and discrimination experts say.
As part of TLEF’s work to identify gaps in legal analysis and understanding, the Foundation has obtained a legal opinion from specialist discrimination law barristers which raises concerns about the impact of algorithms and automated data processing on the transparency and fairness of government decision-making.
Barristers Dee Masters and Robin Allen QC, both from Cloisters, concluded in their opinion for TLEF: 'There is a very real possibility that the current use of governmental automated decision-making is breaching the existing equality law framework in the UK. What is more, it is hidden from sight due to the way in which the technology is being deployed.'
They predicted that equality claims arising from AI will become 'the next battle ground over coming decades'.
A key focus of the Foundation's policy work, led by Swee Leng Harris, is on ensuring that automated processes which are intended to make applications quicker and simpler are fair and open to proper scrutiny.
The Cloisters team were asked to consider two specific areas of government decision-making: its EU Settlement Scheme for European nationals who want to stay in the UK post-Brexit; and the use of 'risk-based verification' by some local authorities to detect fraudulent housing and council tax benefit claims.
EU nationals who have been in the UK continuously for five years are eligible for settled status, which means they have the right to stay here. To determine eligibility, the Home Office uses an automated decision-making process which analyses data from the Department of Work & Pensions and the applicant's tax records.
'It appears that a case-worker is also involved in the decision-making process but the government has not fully explained how its AI system works or how the human case worker can exercise discretion,' say Allen and Masters.
They are concerned that although the automated process checks some DWP data to determine whether an applicant meets the five-year criteria, records relating to Child Benefit and Child Tax Credit are not interrogated. 'This is important because the vast majority of Child Benefit recipients are women, and women are more likely to be in receipt of Child Tax Credits.' This means that the system could be skewed against women applicants and 'could very well lead to indirect sex discrimination contrary to s19 Equality Act 2010'. They add that there may also be implications for disabled applicants, as commentators have suggested that they and their carers need to provide additional information as part of the settled status process.’
Allen and Masters also identified transparency concerns over the use of algorithms by local authorities to identify fraudulent housing and council tax benefit applications. The software gives each applicant a risk-rating for fraud, which determines how much scrutiny their application gets. The barristers say: 'There is no publicly available information which explains how such algorithms are being deployed and on what basis.'
They add: 'Our view is that if there is some evidence that an individual has been discriminated against by a risk-based verification system and this is coupled with complete lack of transparency, then the burden of proof should shift to the local authority to prove that discrimination is not happening.'
Swee Leng Harris says: 'Our aim in obtaining this legal opinion was to add to the available technical legal analysis of automated decision-making, which needs to be fair and open to proper scrutiny. Where this doesn't happen, it is clear that there may well be grounds for legal challenge under existing equality legislation.'
October 14, 2019
We are looking for someone with knowledge of the UK voluntary sector and experience in either making or managing grants.
The post of Grants Officer is an important new role, as the Foundation builds its grants team in preparation for launching a new 5-year strategy for 2020 onwards. It helps to create the capacity for developing stronger relationships with our grantees, which will enable us to better support them and to learn more from what we fund.
See the full Job Description and how to apply on our Vacancies page.
October 11, 2019
The Foundation's scheme is now into its sixth year, and aims to create future leaders in social justice law. Up to 15 training posts will be offered at specialist not-for-profit organisations and law firms nationwide.
The Legal Education Foundation has opened applications for social justice organisations to host a Justice First Fellow trainee solicitor, starting in January 2021.
The latest recruitment round will mean the grant-giving charity has created more than 80 trainee solicitor and barrister posts in host organisations nationwide, since the fellowship scheme was launched in 2014. Over half of the fellows are now qualified, with the vast majority working in the social justice legal field.
The scheme is open to both not-for-profit organisations giving legal advice, and private firms with proven expertise in social justice law and doing work of national significance. TLEF funds the trainee's salary, plus the cost of their management and supervision (private firms are expected to contribute half of the full costs).
Thanks to co-funding partnerships, up to three of the fellowship host places available in this recruitment round will go to specialists in child law; and three to London-based firms or agencies. TLEF is also keen to receive applications from organisations specialising in immigration law.
Applications close on 15th January 2020. For more information and the application form, visit the Justice First Fellowship pages.
October 2, 2019
Report by TLEF research director Dr Natalie Byrom sets out a 29-point plan for tackling ‘digital exclusion’, and ensuring the government’s £1bn court reform programme delivers access to justice for all court users.
Recommendations follow Dr Byrom’s three-month secondment to HMCTS as an expert adviser on open data www.gov.uk/government/news/hmcts-announces-expert-advisor-on-open-data-and-academic-engagement
The grant-giving charity The Legal Education Foundation has today published a report, setting out a blueprint for evaluating the impact of the government’s online courts programme, and for ensuring the needs of all court users are understood and fully met in the move to digital justice.
The report came about after TLEF’s director of research and learning, Dr Natalie Byrom, was invited to act as an independent adviser to HM Courts and Tribunals Service’s court reform programme by its chief executive Susan Acland-Hood.
"The foundation believes it is vital that people are able to understand and use the law, which means decisions about providing access to justice must be based on clear and robust evidence. My colleague Dr Natalie Byrom has developed unique expertise in this field, through her work and extensive research. We were delighted that HMCTS invited Natalie to act as an independent expert to the courts reform programme, which shows how committed chief executive Susan Acland-Hood and her team are to delivering justice to all court users."
During her three-month secondment at HMCTS earlier this year, Dr Byrom interviewed 60 experts and stakeholders in the UK and internationally, including senior judges, government staff, academic researchers, and data and privacy specialists. If adopted in full, the recommendations in her resulting report, Digital Justice: HMCTS data strategy and delivering access to justice would make this jurisdiction a world leader in delivering digital justice.
"The move to online courts is an incredible opportunity to create a justice system that works well for everyone, whether they are an individual in crisis who has never been to court before, or a large organisation which regularly brings claims. We need to ensure that digital processes are designed and monitored in line with recognised access to justice principles. We also need to be able to measure how different groups fare under the online processes, compared with paper-based, or face-to-face systems. The detailed recommendations in my ‘Digital Justice’ report are intended to be a blueprint for putting access to justice at the heart of the HMCTS reform programme."
Dr Byrom’s report sets out 29 detailed recommendations for how HMCTS’s digital processes should be designed or adapted to ensure they capture the data necessary for government and others to evaluate if online courts are disadvantaging some types of users.
"In order to honour its commitment to monitor the impact of digital courts on vulnerable people, government must collect data about those using the courts. To avoid exclusion, or to be able to correct procedures if some groups are being excluded, my recommendation is that court users are asked a small number of questions about protected characteristics – for example, in relation to age, mental or physical disability, gender, and other factors associated with vulnerability. These questions would be optional and reflect the attributes currently used by judges to determine when an individual may be vulnerable. This information should be collected as a matter of routine."
The report also stresses the vital need for clear and robust protocols to ensure court users’ privacy is maintained and that data collected for monitoring and evaluation is protected from misuse.
"Capturing data is vital for ensuring the system is working fairly. However, there must be strict, clear, and ethical controls over how the information is used and who has access to it. People’s privacy must be respected."
Copies of the executive summary of ‘Digital Justice: HMCTS data strategy and delivering access to justice’ are available here.
The full 48-page report is here: Digital Justice: HMCTS data strategy and delivering access to justice.
The report was based on research conducted by Dr Byrom during a three-month secondment to HMCTS in early 2019, at the invitation of HMCTS chief executive Susan Acland-Hood. As a public guarantee of Dr Byrom’s independence, it was agreed her post would be unremunerated by HMCTS, and her findings and recommendations would be made public at the end of the secondment.
Dr Byrom’s research was supplemented by two international workshops held over three days. The workshops brought together 38 experts from the UK and overseas, including senior judges, to deepen understanding of key stakeholders’ needs in relation to data, and to share best practice in evaluating the impact of court reform on access to justice. Following the workshops, Dr Byrom drew up a set of detailed draft principles for evaluating the impact of reform on access to justice and their implications for data collection, which formed the basis of a public consultation.
‘Digital Justice’ has received wide support from external stakeholders. The consultation paper on which the findings are based was reported in the specialist legal press and has been featured in seminars at Yale Law School. A research paper based on the report was awarded gold by the Organisation for Economic Cooperation & Development, and was presented at its Equal Access to Justice roundtable in March 2019. The approach to data collection and evaluation has been endorsed by the Administrative Justice Council and the Senior President of Tribunals, Sir Ernest Ryder.
Ensuring HMCTS’s online processes deliver access to justice which meets legal standards as established through case law: access to a formal legal system; access to a fair and effective hearing; access to a determination; access to an outcome (paras 4.10-4.31).
Collecting data about court users’ vulnerabilities, including age, mental and physical disabilities, literacy levels, and gender (paras 4.13 and 4.33).
Monitoring outcomes in the digital courts, both to compare with outcomes under pre-digital processes, but also to evaluate how different groups fare compared with each other under the new system (for example, represented and unrepresented court users; claimants and defendants; individuals and organisations). (paras 4.33-4.38)
Monitoring which types of users and which types of cases are decided by a judge (rather than being determined earlier in the process) (para 4.37).
Ensuring transparency around ‘nudges’ built into the system, which are intended to promote or discourage types of behaviour by court users, such as seeking legal advice on a case (say, by positioning of buttons on a screen) (para 4.36.3).
Considering the benefits and drawbacks of introducing unique identifiers for each court user to allow researchers and evaluators to have a complete picture of what an individual’s experience of the court process has been – for example, if they have been bringing and responding to multiple cases at the same time (para 4.32).
Ensuring strict, clear and ethical controls over how accumulated information is used, to avoid misuse and ensure privacy is protected (paras 4.32; 4.60).
Publication asap of HMCTS’ open data strategy, which should be developed in line with with legal and ethical principles (para 6.14-6.15).
The £1bn courts and tribunals reform programme was launched in September 2016, by the Lord Chancellor, Lord Chief Justice and Senior President of Tribunals. HMCTS describes it as ‘an ambitious programme…which aims to bring new technology and modern ways of working to the way justice is administered…We know we can make justice less confusing, easier to navigate and better at responding to the needs of the public.’
Phase one of the programme in the civil courts included testing online divorce, probate and civil money claims (with the stated aim of automating and digitising all civil money claims by 2020), social security appeals and online plea services. Phase two involved online public family law, immigration and asylum tribunals. Under the current phase three, online services continue to be expanded, including increasing the number of support centres.
For more information, contact: report author and TLEF director of research and learning Dr Natalie Byrom: natalie.byrom@TheLEF.org