Lawtech: beware the regulator’s embrace

One of the most alarming calls to action I heard in 2019 wasn't in a political manifesto or even on a GDPR training course. It was from a delegate at a legal sector seminar who urged the Solicitors Regulation Authority 'to take ownership of the lawtech agenda'. Only within a regulator's warm embrace, the speaker seemed to believe, will the law catch up with the rest of the world in adopting information technology.

The idea is profoundly mistaken. This is not just about the SRA; it applies to all quangoes. History has shown over and over again that the last people to put in charge of technological innovation and adoption are well-meaning apparatchiks of an organisation accountable neither to users nor innovators. Almost invariably, the outcome is either to block innovation with an equivalent of the Red Flag Act, or, perhaps more damagingly to direct it down a blind alley.

Regulators are already sniffing around the lawtech scene like flies at a picnic. Like academics and City investors, they have picked up the consensus that big changes will happen when the legal sector finds ways to take advantage of technologies such as machine learning and natural language processing - 'artificial intelligence' - or, more speculatively, blockchain-type encryption. Most of us hope that these changes will pay dividends in improving access to justice as well as in mundane efficiencies in due diligence exercises. Clearly, there is a need for regulatory (and representative) bodies to keep an eye on developments and, within reason, to remove regulatory barriers to innovation. There may also be a role for regulatory 'sand-boxes' in which professionals can test new ways of working.

What the regulator should not be doing - and this applies also to central government's 'industrial strategy' - is to influence the direction of these efforts. The track record of the great and the good in these matters is just too dismal. What the writer Kevin Kelly calls the 'technium' has a momentum of its own and top down efforts to force the pace prematurely, such as Japan's hugely publicised programme to create a 'fifth generation' computer, will fail. So, too, will attempts to create 'appropriate' technology for particular groups: individuals are generally better than quangoes at deciding what is appropriate for their needs. 

Surely there are exceptions, examples of a big idea driven from the top down, paying off? In is famous blog post looking for 'weirdos and misfits' to join the civil service, the prime minister's adviser Dominic Cummings seems to set great score by the example of the Apollo moon programme. True, President Kennedy's pledge to put a man on the moon and return him safely to earth was achieved before the 1960s was out - but only at colossal cost, and with a technique (lunar orbit rendezvous) which turned out to be a blind alley for long-term space exploration. While the jury is still out, it is arguable that only now, 50 years after the moon landing, is space technology really coming together in the shape of automated and re-useable launchers.

A more typical outcome is the National Health Service's programme to adopt electronic medical records in the early 2000s. It failed partly because it ignored human and organisational complexities, but also because the technology - this was pre-smartphone, let alone iPad - was simply not good enough.

Perhaps HM Courts & Tribunals Service's very top-down programme to create a digitised courts service will turn out differently, but the odds are against it. Likewise all our quangos' attempts to cash in on the lawtech revolution.