Lord Thomas, the former Lord Chief Justice of England and Wales, is a member of a relatively small group of legal professionals who can talk confidently about Artificial Intelligence (AI) and the digital revolution that is engulfing the profession.
Lord Thomas was in New Zealand recently as the Law Foundation’s 2019 Distinguished Visiting Fellow. He spent time during September and October at all six law schools talking about “The digital revolution and the law”.
He says he was attracted by new technologies when he realised that IT was needed to modernise the UK’s court filing system, to enable people to file online, and to organise paperwork in a better way, while overall making the court system more efficient.
Talking to LawTalk before his speech at Victoria University of Wellington, Lord Thomas referred frequently to how the digital revolution is affecting the legal profession in the United Kingdom. Given the state of global technology, he noted that his answers could also reflect the changes and challenges in the legal profession in New Zealand.
Lord Thomas says British courts have suffered from swinging cutbacks over the past few years, with dozens closing or being earmarked for closure – although he notes the Scottish government has tried to prevent the trend toward closing rural courts. He says that with fewer courts, digital technology will be crucial.
“Where I see IT as important for courts is, firstly, it presents an opportunity for maintaining much more flexible small courtrooms. Because you can keep case papers online, there isn’t the problem of going around with large quantities of paper; secondly, you can access more information; and thirdly, you can operate in an environment that isn’t necessarily the old courtroom, and you can have temporary courtrooms in say, a municipal office or somewhere else that is quiet with good wi-fi connections. There’s no reason why you can’t bring justice closer to the people. Or alternatively you can use remote access, video links, and pop-up locations to enable people to communicate from their small town to the city.
“Over the last year, having examined numerous witnesses over video connections, I am persuaded that it is almost as good as having someone in person.”
But he says that such moves will also require some careful consideration.
“We have to adapt. You have to make certain that there is no one else in the room signalling or trying to tell the person what to say. The quality of audio-visual links has improved exponentially over the last five-plus years and if you asked me the question ‘is it better to do it that way, or not at all’, I would definitely say yes.
“And I think in an awful lot of situations where you can use video links, for example, in the UK, we take a lot of evidence from children and other vulnerable people by a remote link, and once you do that it does not matter where the link is. So I think there is a lot you can do to try and bring justice back to the small communities.”
Will jobs be lost, or created?
Lord Thomas admits that people are entitled to be “slightly worried” by the prospect of AI and, as the legal profession is generally conservative (“with a small c”), it doesn’t always take easily to change.
“So I think people often underestimate the need for one to explain, to help, to lead; it’s an empathy I have with people who face change and the changes are quite profound.”
He is also keen to stress that while there will be, naturally, some legal jobs being shed, fears over massive job losses as computers do the more routine tasks currently done by lawyers, are over-stated.
“I think it’s likely to lead to a change in jobs. For example, there is much wider use of AI to review documentation, not only in the discovery process but also in reviewing contracts and finding out what clauses they contain for the purposes of mergers and acquisitions. So yes, you may see jobs going there, but there will be other jobs that will come to replace these. I think it may be that the students realise that the traditional way of becoming a lawyer changes a bit, as we get used to the rapid changes made by the digital revolution.
“But on the other hand, it provides opportunities for people to have greater access to justice and therefore that creates more work in that area. Furthermore, I have no doubt that the more we go down the route of the digital revolution, the more regulation we are bound to see and that will bring more work for lawyers; at the moment it is very free market, but this will not last.”
A varied career
Lord Thomas (of Cwmgiedd to give him his full title) studied at Cambridge and the University of Chicago. He practised at the commercial bar in London from 1972 to 1996, becoming a QC in 1984. He was appointed to the High Court of England and Wales in 1996, was successively a Presiding Judge in Wales, Judge in Charge of the Commercial Court, the Senior Presiding Judge for England and Wales, a Lord Justice of Appeal and President of the Queen’s Bench Division. And he was Lord Chief Justice of England and Wales between 2013 and 2017.
He currently practises as an arbitrator, is Chancellor of Aberystwyth University in west Wales and President of the Qatar International Court.
One of the subjects Lord Thomas spoke on at the law schools was how the digital revolution relates to the rule of law, and how it could provide access to justice for everyone who needs it.
“I think one of the very big problems we face, certainly in the UK, is that access to justice has become very much more difficult for a number of different reasons; one is cost – we tend to make our procedural system very expensive and very complicated to use and I think one of the benefits of IT is that you can simplify and make a procedural system more efficient – you can provide advice, to an extent, online. For example, when someone wants to apply for a driving licence, the self-guiding forms are a considerable way forward.”
Never forget the small-town lawyer
Lord Thomas addressed the impact the digital revolution will have on legal education, in particular what needs to be done to help the present legal profession to adapt.
“I think there are two things. One – and again I’m talking strictly about the UK – there is no doubt that a big corporate law firm can see its own way to doing what needs to be done, to devising and developing its own systems. But we forget at our peril the need to help the small-town solicitor or barrister, and to enable them to (a) have proper advice on what they need, and (b) cooperate with each other and develop. There is no doubt that the small-town solicitor is finding that coming to terms with the changes impelled by doing things differently is quite tricky.
“In some senses you have to look on lawyers as an integral part of the local community, therefore needing the kind of help that other important parts of a local community also require. You shouldn’t necessarily, certainly in the UK, regard small-town lawyers as wealthy plutocrats who don’t need any help.”
Lord Thomas talked on the tour, at the end of his sessions, on the lessons from the Brexit process, which he says was an attempt to look at such legal issues as how to negotiate; the adequacy of the legislative process and scrutiny of vast bodies of new legislation; the capacity and capability of executive and the legislature; the retention of European Union law in the UK and the choices of legal regime for the future; and the position of the judiciary. He added that he stuck to those subjects without expressing a view on the merits of Brexit, particularly when addressing the effect of the UK Supreme Court decision on the prorogation of Parliament which was given during his visit.