Digital legal transformation or electronic data collection shell?

Is the rush by the Justice department to move everything online being done without sufficient analysis and are the consultations merely rolled out public relation exercises? There has been insufficient research of the legal system as a whole and how it can be developed and funded. The balance has fallen in favour of ‘digital’ over on the ground human contact and advice based on the argument that significant hours of court staff time reviewing documents will be saved and that the ‘user experience’ will be easier and more efficient. The new digital system is actually ultimately controlled by third parties who own the patents and can exploit those rights elsewhere. There is also an unquantified long-term expense of the funding of cloud agreements for the storage and use of data with global software companies.

There is no clear aim to improve access to qualified legal expertise or to even provide a comprehensive summary of the choices and options available. Legal problems which effect many people are not addressed, such as the need to improve tenants’ rights particularly for students and others in private rental properties or to protect consumers against draconian terms and contract policies by major energy and mobile phone companies. The strategic policy is concentrated on the collection, exchange and the exploitation of data and forms. Together with the aim to diminish and curtail the role of qualified legal professionals and judges and to substitute administrators with delegated powers.

Failures of existing online schemes

The Deposit Scheme requires that a landlord register a tenant’s deposit by a certain date in relation to the property. It is defective in that it allows a landlord to serve notice on the rented house even after tenants have departed and not their new address. The scheme does not challenge landlords as to the validity of invoices that are submitted regarding repairs, replacements and cleaning unless this is disputed by the tenants. Nor does the scheme require evidence of a valid HMO licence for the full period of the tenancy.

The County Court money centre scheme can be used by anyone to claim sums of up to £10,000. The website and documents are badly drafted and do not correctly state all the information that may be relevant in a comprehensive manner. The call centre personnel have no detail of the administrative process and reiterate that they do not provide legal advice. The time limits provided are very short and must be adhered to despite the fact that there may be multiple defendants. There is no explanation of the rights of litigants or even case examples. The role and function of each part of the claim management cycle is not explained. The right of the defendant to be provided with copies of original documents which are referred to in the claim prior to submitting the defence does not exist.

Online developments

The Justice Department is really nothing to do with law and governing law, but is merely a software procurement department. The legal system and its governance and development should be separated from the procurement of the software so that there is a more objective and valid scrutiny. Consultations and pilots have been cursory and restricted. A few visits to the courts and a few closed shop limited number discussions are not proper background research.

The Justice Department want to make it all go online but not accept responsibility for providing a full explanation of the procedures, options and process. In my view they are under an obligation to provide clear and comprehensive details which they fail to do.

There is a whole strata of society who do not have a laptop and cannot afford Wi-Fi and whose only access to computers is through hourly sessions at the local library. No allowance is made whatsoever for these people in the system.

Sections of courts are now taken over by the DVLA – who impose and administer penalties independently of the police and magistrates. The recent move to online tax discs has penalised many people for failure to renew their tax with no account of the fact that they may not have any access to the internet. In Sussex the announcement that tax discs were to go online was made on twitter when the local office was closed down.

The Land Registry Local Land Charges programme which was launched on 11 July 2018  in Warwickshire was opposed by the public when they were consulted, but the project continued. The Land Registry now has a digital register for local land charges which can be accessed nationally rather than just through each local authority. The Land Registry are currently investigating a chatbot property adviser and blockchain with third parties. All this data will no doubt fall within the ambit of the Geospatial Data Commission.

Divorce has gone online – and the process of the application separated from the financial aspects. Specialist financial courts are being piloted with tiered levels of Judges and expertise. The online system can only currently be used by litigants in person not Solicitors or Barristers. This year private beta testing with some law firms has taken place, but as yet the online service does not apply to the legal profession.

Video hearings were piloted in courts early this year and tested using the public.

The Courts and Tribunal forms have now all been moved to gov.uk. which lacks any depth as a resource.

The Intellectual Property Office created a new digital application service for registered designs which went live in 2017, but there is no digital certificate available.

Paid promotions and legal hubs

The forms, documents and explanations being created for the online systems should be better drafted. Each system should be regularly reviewed and the feedback of the problems dealt with. Regional legal hubs which promote legal services should be created connected to local law firms of all sizes and linked to each type of court for that region. The online digital systems should not be viewed in isolation from the legal system as a whole.

Advertising, product placement, sponsorship and other means of raising funds should be allowed in zones in fixed areas in and near courts to improve the premises themselves and to provide low cost legal services hubs. These networks could then be linked to universities to fund more paid internships, mentoring schemes and training pathways.

Deborah Fosbrook is the author of Contract and Copyright Drafting Skills, The A-Z of Contract Clauses, The Media and Business Contracts Handbook and The Complete A-Z of Contract Clauses Pack

Written by Ellie MacKenzie

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