Powerful, billion-dollar multi-national corporations will have intimate involvement in civil and criminal court information systems for the first time next year, raising serious questions that the legal profession is so far failing to ask.
Right now, five foreign-based companies are tendering for the £50-70 million contract to run the UK's court computer systems via "outsourcing". That is, taking responsibility for development, delivery and management of systems.
This privatisation, under the Government's private finance initiative (PFI) requirements, should bring advances in efficiency called for by court users and lawyers, according to the Government and the companies involved.
But critics say the move introduces the shadow of a corporate Big Brother to the UK legal system. With no public consultation, it has caught the Law Society and, to a lesser extent the Bar, napping, say lawyers.
Solicitor Paul Mason, a partner in TV Edwards and the Law Society representative on the ITAC (Information Technology and the Courts) committee, believes the Law Society knows little of what is going on.
He says: "It's a major constitutional change that the very independence of the legal system might start to become compromised by marching too far down the commercial road. The difficulty is that if you wish to establish these IT systems, how do you achieve it without giving someone the financial reward?"
John Horne, secretary to the Bar Council services and IT committee, says there are long-term implications for court users, the Bar and the judiciary.
"We are very anxious to be in the consultation procedure over the long-term strategic aims and the way the IT structure will be shaped. A forum for users is absolutely crucial. Just handing something over without consultation would cause us deep concern."
Mason adds: "Even if there is no real danger, how are you going to convince the public so? I get the feeling that the LCD and Home Office are trying to steamroller PFI through and are hoping people don't notice."
This privatisation raises serious questions, not only over the details, but over political and constitutional issues, such as whether the private sector should have such a major stake in the legal system.
The legal profession has not formally examined the issue.
Instead, private business involvement appears as a fait accompli pushed by a government whose central tenet is to privatise its own functions, argue critics.
So what is happening? Details of the privatisation are in the two-part 'statement of requirement' tender document.
The first part describes the essential elements for privatisation: developing and running of Caseman, part of the local County Courts system (LOCCS); running the Summons Production Centre and County Court Bulk Centre in Northampton and the Parking Enforcement Centre in Cardiff.
But the second part also invites companies to supply other services, undertake "total operation" of the three centres in Northampton and Cardiff, support other LCD systems (not involving finance or personnel information, although it is rumoured that the LCD is considering the former).
It includes running the criminal courts' Crest listing system and undertaking "routine administration elements" of Crown and County Court work, the LCD confirmed.
But listing has always been claimed as a judicial function by both judges and the LCD, usually as a reason for not compensating solicitors and their clients over listings botch-ups.
The PFI comes in the wake of Lord Woolf's caution over such privatisation.
In his interim report Lord Woolf wrote that the PFI project "raises the question of whether the IT infrastructure of the civil justice system should be run by the private sector". The implications must be evaluated, he said, adding: "In particular, its impact on whether the Court Service and ultimately the LCD will be able to retain control over issues of policy and strategy."
By law, the Government must formally consult the senior judiciary, including the Lord Chief Justice, Vice-Chancellor, Master of the Rolls and President of the Family Division, on any proposals to privatise even non-sensitive court functions. After strong pressure from top judges and trade unions, schedule 16 of the Deregulation and Contracting Out Act was created earlier this year to continue the protection of court services originally framed in section 21 of the Courts Act 1971.
Yet the judges have still to be consulted, admits the LCD, despite four companies now being heavily engaged in the tendering process.
However, an LCD spokes-man said its team handling the tender, led by Peter White of the information systems division, is aware of the sensitivity of judicial aspects and of union concerns.
The LCD is "very mindful" of Lord Woolf's warning. "We will be consulting closely with the judiciary as soon as we have more concrete proposals [from the companies]. There is no way we are going to lose control of the policy or strategy," the spokesman said.
The latest revelations are likely to fuel concerns among trade unions, already worried that certain work currently regarded as part of the judicial function will be included in the privatisation.
These concerns, together with fears over jobs, have led to the threat of industrial action – including shutting down existing computer systems – if the entire PFI proposal is not withdrawn.
"The LCD should have consulted the judiciary earlier when just considering the possibility of this," said a union spokesman.
But the LCD says it has not taken this step with the judges yet because so far there has been little to tell them. The detail is being thrashed out in dialogue with the companies, says an LCD spokesman.
As far as consultation with the Law Society and Bar goes, the LCD says the mechanisms exist for them to find out more.
Finally, from a practical point of view, there is a danger for lawyers that they will be left behind by any technological developments in the courts, unless they attempt to keep up with what is happening.
Horne says that both solicitors and the Bar are already making huge investments in IT systems with a view to communicating with court listing systems. If lawyers are not brought into the PFI development of such systems, private sector lawyers' systems could be redundant overnight.
"We are all part of the legal system. We can't operate in isolation," Horne says.