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themathomhouse · 11 months ago

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So I tried to track down the Court of Probate Act 1857, which was what the consultation listed as the source of their statutory duty to retain copies of all probate documents. I don't currently have access to westlaw or LexisNexis, so I contacted a friend who does.

Y'all the consultation was wrong about the legislation which covers their duties. I went back to check it because my friend told me it had been repealed and replaced, and they changed the information on the consultation.

They're the ministry of justice?? They got the legislation wrong??? Seriously is this run by clowns????

So anyway the actual legislation to look at to see what duties exist to maintain the archive of probate documents is the Senior Courts Act 1981, sections 124 - 126. That legislation is available here: https://www.legislation.gov.uk/ukpga/1981/54/contents

You're a reasonably informed person on the internet. You've experienced things like no longer being able to get files off an old storage device, media you've downloaded suddenly going poof, sites and forums with troves full of people's thoughts and ideas vanishing forever. You've heard of cybercrime. You've read articles about lost media. You have at least a basic understanding that digital data is vulnerable, is what I'm saying. I'm guessing that you're also aware that history is, you know... important? And that it's an ongoing study, requiring ... data about how people live? And that it's not just about stanning celebrities that happen to be dead? Congratulations, you are significantly better-informed than the British government! So they're currently like "Oh hai can we destroy all these historical documents pls? To save money? Because we'll digitise them first so it's fine! That'll be easy, cheap and reliable -- right? These wills from the 1850s will totally be fine for another 170 years as a PNG or whatever, yeah? We didn't need to do an impact assesment about this because it's clearly win-win! We'd keep the physical wills of Famous People™ though because Famous People™ actually matter, unlike you plebs. We don't think there are any equalities implications about this, either! Also the only examples of Famous People™ we can think of are all white and rich, only one is a woman and she got famous because of the guy she married. Kisses!"

Yes, this is the same Government that's like "Oh no removing a statue of slave trader is erasing history :(" You have, however, until 23 February 2024 to politely inquire of them what the fuck they are smoking. And they will have to publish a summary of the responses they receive. And it will look kind of bad if the feedback is well-argued, informative and overwhelmingly negative and they go ahead and do it anyway. I currently edit documents including responses to consultations like (but significantly less insane) than this one. Responses do actually matter. I would particularly encourage British people/people based in the UK to do this, but as far as I can see it doesn't say you have to be either. If you are, say, a historian or an archivist, or someone who specialises in digital data do say so and draw on your expertise in your answers. This isn't a question of filling out a form. You have to manually compose an email answering the 12 questions in the consultation paper at the link above. I'll put my own answers under the fold. Note -- I never know if I'm being too rude in these sorts of things. You probably shouldn't be ruder than I have been.

Please do not copy and paste any of this: that would defeat the purpose. This isn't a petition, they need to see a range of individual responses. But it may give you a jumping-off point.

Question 1: Should the current law providing for the inspection of wills be preserved?

Yes. Our ability to understand our shared past is a fundamental aspect of our heritage. It is not possible for any authority to know in advance what future insights they are supporting or impeding by their treatment of material evidence. Safeguarding the historical record for future generations should be considered an extremely important duty.

Question 2: Are there any reforms you would suggest to the current law enabling wills to be inspected?

No.

Question 3: Are there any reasons why the High Court should store original paper will documents on a permanent basis, as opposed to just retaining a digitised copy of that material?

Yes. I am amazed that the recent cyber attack on the British Library, which has effectively paralysed it completely, not been sufficient to answer this question for you. I also refer you to the fate of the Domesday Project. Digital storage is useful and can help more people access information; however, it is also inherently fragile. Malice, accident, or eventual inevitable obsolescence not merely might occur, but absolutely should be expected. It is ludicrously naive and reflects a truly unpardonable ignorance to assume that information preserved only in digital form is somehow inviolable and safe, or that a physical document once digitised, never need be digitised again..At absolute minimum, it should be understood as certain that at least some of any digital-only archive will eventually be permanently lost. It is not remotely implausible that all of it would be. Preserving the physical documents provides a crucial failsafe. It also allows any errors in reproduction -- also inevitable-- to be, eventually, seen and corrected. Note that maintaining, upgrading and replacing digital infrastructure is not free, easy or reliable. Over the long term, risks to the data concerned can only accumulate.

"Unlike the methods for preserving analog documents that have been honed over millennia, there is no deep precedence to look to regarding the management of digital records. As such, the processing, long-term storage, and distribution potential of archival digital data are highly unresolved issues. [..] the more digital data is migrated, translated, and re-compressed into new formats, the more room there is for information to be lost, be it at the microbit-level of preservation. Any failure to contend with the instability of digital storage mediums, hardware obsolescence, and software obsolescence thus meets a terminal end—the definitive loss of information. The common belief that digital data is safe so long as it is backed up according to the 3-2-1 rule (3 copies on 2 different formats with 1 copy saved off site) belies the fact that it is fundamentally unclear how long digital information can or will remain intact. What is certain is that its unique vulnerabilities do become more pertinent with age." -- James Boyda, On Loss in the 21st Century: Digital Decay and the Archive, Introduction.

Question 4: Do you agree that after a certain time original paper documents (from 1858 onwards) may be destroyed (other than for famous individuals)? Are there any alternatives, involving the public or private sector, you can suggest to their being destroyed?

Absolutely not. And I would have hoped we were past the "great man" theory of history. Firstly, you do not know which figures will still be considered "famous" in the future and which currently obscure individuals may deserve and eventually receive greater attention. I note that of the three figures you mention here as notable enough to have their wills preserved, all are white, the majority are male (the one woman having achieved fame through marriage) and all were wealthy at the time of their death. Any such approach will certainly cull evidence of the lives of women, people of colour and the poor from the historical record, and send a clear message about whose lives you consider worth remembering.

Secondly, the famous and successsful are only a small part of our history. Understanding the realities that shaped our past and continue to mould our present requires evidence of the lives of so-called "ordinary people"!

Did you even speak to any historians before coming up with this idea?

Entrusting the documents to the private sector would be similarly disastrous. What happens when a private company goes bust or decides that preserving this material is no longer profitable? What reasonable person, confronted with our crumbling privatised water infrastructure, would willingly consign any part of our heritage to a similar fate?

Question 5: Do you agree that there is equivalence between paper and digital copies of wills so that the ECA 2000 can be used?

No. And it raises serious questions about the skill and knowledge base within HMCTS and the government that the very basic concepts of data loss and the digital dark age appear to be unknown to you. I also refer you to the Domesday Project.

Question 6: Are there any other matters directly related to the retention of digital or paper wills that are not covered by the proposed exercise of the powers in the ECA 2000 that you consider are necessary?

Destroying the physical documents will always be an unforgivable dereliction of legal and moral duty.

Question 7: If the Government pursues preserving permanently only a digital copy of a will document, should it seek to reform the primary legislation by introducing a Bill or do so under the ECA 2000?

Destroying the physical documents will always be an unforgivable dereliction of legal and moral duty.

Question 8: If the Government moves to digital only copies of original will documents, what do you think the retention period for the original paper wills should be? Please give reasons and state what you believe the minimum retention period should be and whether you consider the Government’s suggestion of 25 years to be reasonable.

There is no good version of this plan. The physical documents should be preserved.

Question 9: Do you agree with the principle that wills of famous people should be preserved in the original paper form for historic interest?

This question betrays deep ignorance of what "historic interest" actually is. The study of history is not simply glorified celebrity gossip. If anything, the physical wills of currently famous people could be considered more expendable as it is likely that their contents are so widely diffused as to be relatively "safe", whereas the wills of so-called "ordinary people" will, especially in aggregate, provide insights that have not yet been explored.

Question 10: Do you have any initial suggestions on the criteria which should be adopted for identifying famous/historic figures whose original paper will document should be preserved permanently?

Abandon this entire lamentable plan. As previously discussed, you do not and cannot know who will be considered "famous" in the future, and fame is a profoundly flawed criterion of historical significance.

Question 11: Do you agree that the Probate Registries should only permanently retain wills and codicils from the documents submitted in support of a probate application? Please explain, if setting out the case for retention of any other documents.

No, all the documents should be preserved indefinitely.

Question 12: Do you agree that we have correctly identified the range and extent of the equalities impacts under each of these proposals set out in this consultation? Please give reasons and supply evidence of further equalities impacts as appropriate.

No. You appear to have neglected equalities impacts entirely. As discussed, in your drive to prioritise "famous people", your plan will certainly prioritise the white, wealthy and mostly the male, as your "Charles Dickens, Charles Darwin and Princess Diana" examples amply indicate. This plan will create a two-tier system where evidence of the lives of the privileged is carefully preserved while information regarding people of colour, women, the working class and other disadvantaged groups is disproportionately abandoned to digital decay and eventual loss. Current and future historians from, or specialising in the history of minority groups will be especially impoverished by this.

#long post #yes I'm still mad about this

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