(5 years, 3 months ago)
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The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, this Bill is a further step in delivering legislation to underpin our ambitious court reform programme. Most of these measures have already been before Parliament as part of the Prisons and Courts Bill, which fell when the general election was called. Since then, the Courts and Tribunals (Judiciary and Functions of Staff) Act has achieved Royal Assent, representing the first legislative step towards delivering our aims. This Bill follows on from that, continuing our legislative programme. We will bring forward further courts legislation as parliamentary time allows.
In our manifesto, the Government committed to modernising our courts and tribunals so that they are fit for the 21st century. Following that commitment, we have been pressing on with reform in areas where primary legislation is not required and we are making significant progress in enabling access to justice through online and digital means.
Clearly, the modernisation of the courts system must have ordinary court users at its heart. People need new digital services to be accessible, understandable and easy to use. They need to have confidence that the justice system of the future will deliver justice as fairly as it has in the past, although with greater efficiency. This means that, for online proceedings in particular, our court rules across the civil, family and tribunal jurisdictions must be designed with the aim of making our services accessible and straightforward for the everyday user.
This vision formed part of Lord Justice Briggs’s Civil Courts Structural Review published in 2016. The review supported the concept of an online process governed by simplified rules and overseen by a new rules committee. This Bill will allow that to happen. It creates an Online Procedure Rule Committee which will be responsible for making new court and tribunal rules to enable further innovation and to support people to access our online services with ease.
Digitisation of the court process is now a well-established feature of the civil justice landscape. For example, the Online Civil Money Claims service that went live in March 2018 offers people the opportunity to resolve financial disputes online and has attracted in excess of 63,000 users, with an 87% satisfaction rating. It is these existing online services, which already form part of our modernisation programme, that we expect to be the initial focus of the new committee.
All our online services will be accompanied by appropriate and robust safeguards to protect and support users and to ensure that access to justice is maintained. In pursuing this approach, we recognise that there will be people who will need help accessing a new digital system. That is why we are putting in place a comprehensive “assisted digital” programme of support that will include telephone and face-to-face help for court users. These safeguards apply equally to future online provision under the new committee. Our online services offer a straightforward and efficient alternative to traditional paper routes, but we recognise that not all court and tribunal users will be able to engage online and so paper routes will continue to be available for those who need them.
I turn now to the measures in the Bill. It will establish an Online Procedure Rule Committee to make procedural rules. The committee will have a particular focus both in its membership and its purpose on creating rules to support services designed around the people who use them. To ensure that the new rules achieve the desired effect, the Bill makes it explicit that they will be accessible, fair and simply expressed to assist the efficient resolution of disputes.
The new rule committee will have five members, be chaired by a member of the judiciary and will include laypersons and IT experts. This combined expertise will ensure that our online services continue to maintain our renowned standards of fairness and justice, while also offering a straightforward, accessible and proportionate experience to those who use the courts system.
The Bill also sets out the procedure for appointing members to the committee and for altering its composition, with the agreement of the Secretary of State, the Lord Chief Justice and the Senior President of Tribunals. This measure will ensure that the committee retains flexibility to respond to emerging technologies and user needs.
The Bill will provide a power to specify in regulations which proceedings should be subject to the online procedure. This means that any proceedings likely to benefit from an online procedure can be brought under the remit of the new rule committee. Before we extend new proceedings online, however, HMCTS will conduct appropriate piloting of online services to ensure that they are fit for purpose. We expect the committee to start by focusing on the online services that already form part of our modernisation programme.
The Bill also provides that the new online committee will operate with the same powers as apply to existing rule committees. For example, the new committee will be expected to consult appropriate persons during its rule-making process. It also provides the Lord Chancellor with the power to issue the online rule committee written notice that the rules should achieve a specified purpose. This is a standard power that already applies to existing rule committees. The Bill provides to the Lord Chancellor the power to make amendments to legislation introduced prior to the introduction of this Bill to facilitate the making of online procedure rules. It is anticipated that that will be used to make minor revisions to the legislation in order, for example, to regularise and modernise terminology to match that in new rules. Before making such regulations, the Lord Chancellor must consult the Lord Chief Justice and the Senior President of Tribunals. Again, this is a similar power to that provided in the legislation that establishes the current rules committees.
In summary, the Bill, in combination with our wider package of reforms, will ensure that our courts and tribunals system remains fit for the 21st century and for the digital age. It will help to ensure that the judges and staff of our courts and tribunals are able to respond to the changing demands of the justice system, and ultimately it will deliver a more flexible framework, supporting better services for court users. The Bill reinforces our enduring commitment to delivering a reformed courts and tribunals system, and I commend it to the House.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I remind the House that I sit as a magistrate in London; I sit in the adult, youth and family jurisdictions. I welcome the underlying aim of the reform agenda and its aim to improve the efficiency of the justice system, while ensuring equal access and fair process within our courts.
First, I will talk in some detail about the family jurisdiction. My first concern is that the Online Procedure Rules Committee, the OPRC, should not require certain proceedings to be initiated electronically. The Government are too optimistic when they look at the figures for members of the public who are digitally included. The Government’s figures that I have seen quoted are that 82% of the population are comfortable using the internet. However, if one looks further, one sees that only 56% of the population use the internet for sensitive issues such as banking or shopping. Older people and people with disabilities and vulnerabilities are more likely to be digitally excluded. The people I see in court are very often disadvantaged in some way. It should be clearly stated in the Bill that parties will be able to engage in proceedings using paper if they so choose.
I turn to particular aspects of the Bill. Section 1(6) allows the OPRC to set out the circumstances in which proceedings should be transferred to a full hearing. I am concerned that there should be no restriction on judicial discretion to respond to specific circumstances and order that a court hearing is required.
On designation, Section 2(1)(b) allows the OPRC to designate that any family proceeding can be dealt with online. I understand that the aim of the legislation is to be permissive. Nevertheless, it will be the case that the vast majority of family cases will not be appropriate for an online hearing. The president of the Family Division has said that,
“for contested cases involving the giving of oral evidence, multi-party cases, cases concerning Litigants in person, and/or cases concerning children”,
a face-to-face hearing would normally be required. I believe that that, too, should be reflected in the Bill.
Section 4 deals with the membership of the OPRC. At present there is no requirement for any representative member of the committee at all, let alone from the family jurisdiction—no requirement for either a judge or a magistrate. Maybe this should be looked at—although I noted what the Minister said about being able to consult and change the membership as different issues are raised. Nevertheless, the lay magistracy is the largest judicial cohort in the country and it is currently represented on the Criminal Procedure Rule Committee and the Family Procedure Rule Committee.
I will make some more general points about the road that we are travelling down with regard to the reform agenda and the attempts to digitise the courts process. Last week I was reading an article in the freesheet City A.M., which is a business paper. There was an article by a journalist, who is also an economist, called Paul Ormerod. He was writing about the pitfalls of the constant push to introduce new technologies. The example he used in his article was of poor technologies—“so-so technologies”, he called them—being introduced. They can have the effect of automating customer service, be it in banking or supermarkets, and putting more obligations on the receivers of those services—the customers.
In our banks and supermarkets, we have seen a big reduction in jobs, but we have not seen a noticeable reduction in costs. As far as I am concerned, the service I receive as a customer in my bank or supermarket is not as good as it was. Of course, there are parallels with this in the courts service. As the Minister said, quite a few systems have already been introduced over a number of years, and I think it is fair to point out to noble Lords where the systems have been falling short of expectations.
The first example is magistrates’ courts, which use digital technology extensively at the moment. A survey of HMCTS staff who work in magistrates’ courts found that 85% of respondents said that this was having a negative impact on the timeliness of their work. Perhaps more worryingly, 81% said that it was interfering with their ability to give proper legal advice and ensure that those who attend court had a fair hearing. That is of concern.
The second example is applying for a divorce online. The regional divorce centre at Bury St Edmunds had unprecedented delays last year. Freedom of information figures showed a 9% increase in the time taken to issue a decree absolute and a 17% increase in the time taken to issue a decree nisi. Those were the figures for 2017-18.
I am aware that this is a difficult thing to do. In my own working life I have introduced computing systems; it is not straightforward and it requires persistence. But there also needs to be honesty about whether we will actually deliver a better service for people using these technologies, and whether we will have procedures that will review the services and will be frank about the benefits to the people supplying them and receiving them. Staff need to be supported as these technologies are introduced. Ultimately, there is really only one consideration, which trumps all others: are we delivering improved access to justice? One role of this committee should be to find a way of measuring whether access to justice is being improved.
Lord Beith (LD)
My Lords, like the noble Lord, Lord Ponsonby, I very much welcome the Bill. He has brought to the attention of Ministers some important considerations about what it should contain and how it can be implemented. It is of course one of the delayed instalments of the Prisons and Courts Bill which fell because of the 2017 general election—one of the many things which fell because of that election. When the Minister used the phrase “as parliamentary time allows”, I thought, “Good heavens, if parliamentary time does not allow it now, when will it?”. I commend the department on leaping in to the gap with a Bill; surely the Government can slip a few others in while we have so little in our legislative programme because of Brexit.
It is a very welcome Bill and I am encouraged in saying that by the large number of people who have used the existing opportunities for online access to justice. Extraordinarily high levels of user satisfaction are recorded, certainly in the Parliamentary Answer given on 30 April in the other place, which talked about a user satisfaction rate of 87% for services dealing with civil money claims, and rates of 92% and 93% in some of the other categories. That is encouraging, despite the difficulties that the noble Lord, Lord Ponsonby, referred to.
The users of online facilities will include a lot of private individuals worried about the cost and difficulty of oral proceedings, and by a great many small businesses, which will want to take advantage, particularly in relation to money claims. They and their organisation, the FSB, are very concerned that the procedure should be developed with a proper eye to the needs of small business and that they should be fully involved in developing it.
Looking at some of the things which we need to get right in the Bill, under Clause 1(b), the Online Procedure Rules can require relevant kinds of proceedings to be conducted electronically. Does that mean that in some areas there would be no choice—even if both parties want an oral hearing? That may depend on what regulations are introduced under Clause 3, and to what extent they limit the impact of Clause 1. At this stage, we do not really know, so there is a degree of uncertainty. The Bill could be implemented in a way which gives little or no choice at all.
Alongside that is the risk of imbalance. What if one party is prepared to use online processes but the other party does not wish to? Neither the Bill nor the Explanatory Notes have convinced me that we have got this sorted out or got it right. The party who does not want to use online claims may be someone who has difficulty in managing them, or has had adverse experiences—as most of us have had trying to book a flight or accommodation, when the site has simply imploded on us or refused to let us go any further or go back and change what we got wrong. I make no claims to be an expert in these procedures—sometimes they are very helpful—but there is a variety of perfectly legitimate reasons why someone might not wish to use them, and who might be confronted by another party who is very keen to use them. In those circumstances, it is important to know what support can be made available.
The Government have done some work on this in the pilots that have been taking place. I would like to have confidence that something like that is going to be available around the country once these procedures are developed. However, I looked at the Explanatory Notes to try to get a better understanding of the circumstances in which there might be a lack of choice. Paragraph 15 gives an example that,
“might apply where a party might not have access to the requisite IT, so creating a parallel procedure which may still be subject to those features of the online procedure that are readily available to the parties”.
That is the course of action provided for. I find it somewhat mystifying. Similarly, paragraph 17 talks about providing for,
“circumstances in which such proceedings may nonetheless remain subject to the Online Procedure Rules, so enabling the rules to provide for alternative procedures under clause 1(7)”.
Can the Minister can clarify what will happen if both parties are unwilling to use the procedure, or if one party but not the other is unwilling or ill-equipped to use the procedure?
I will raise a couple of wider points. Clause 5 allows the Online Procedure Rule Committee to provide for existing non-online procedural rules to apply, even if they would not normally be applicable to that kind of proceeding. This might, in theory, allow the anonymity rules from family procedure to be imported into other types of case, which cannot be the intention. What is this for? Why has this provision been included?
Clause 1 to 3 together give a very wide power to preclude oral proceedings altogether, in all but a few types of case, if the powers were used in that way. That could conflict with the ECHR and common-law rights to a fair and public hearing, and would somewhat undermine the statement of compliance on the front page of the Bill—which the Minister has vouched for.
There are some areas where we need to look in more detail at whether the Bill is appropriately worded, but its intentions are right. I hope that I am not being unwise in having some confidence that a lot of people could benefit if the Government get this right.
Lord Judge (CB)
My Lords, I too welcome proposals which will improve the administration of justice by using digital or modern technology. That said, I share the reservations that have already been expressed by the noble Lords, Lord Ponsonby and Lord Beith. I was going to say more on that subject, but this is Second Reading and I propose to be brief, so perhaps I may respectfully adopt what they have said as if I had said it for myself. I shall confine my remarks today to the way in which excessive powers have been vested exclusively in the Ministry of Justice or the Lord Chancellor.
Dear old Henry VIII does not lurk around the corner in this Bill; as is the custom nowadays, that ogreish sight is there in full vision—you cannot miss him. What the Bill seems to have overlooked is that, since the Constitutional Reform Act, it is not the Lord Chancellor but the Lord Chief Justice who is the head of the judiciary. This Bill relates closely to how justice will be administered. As I have had the honour to hold the office of Lord Chief Justice, I underline that I have no wish to impose on my successor the additional burdens that what I shall now suggest would create.
Let us go back a little. These proposals followed an investigation by Lord Briggs, as he now is, addressed to small, low-value civil claims. Effectively, this Bill covers all non-criminal proceedings: every single case in the Family Division or the family courts, or the magistrates’ court doing family cases; every single employment case; every single tribunal case, and every single civil case whatever its value. That suggests, and it is easy to overlook because the Bill is modest and short, that this is a serious, wide-ranging Bill with wide-ranging consequences. All this is achieved by the creation of an Online Procedure Rule Committee. A number of aspects have already been addressed. We need to consider whether the Bill when it becomes an Act should not include an express provision relating to access to justice, but we will come to that at a later stage.
Perhaps I may I illustrate my concerns in a simple way, by reference to the membership of the committee. At present, there is a Civil Procedure Rule Committee. A majority of its members are from the judiciary and all levels of the judiciary, including magistrates, are represented on it. There is a tiny number of nominees made by the Lord Chancellor. It has worked well and nobody has suggested otherwise. Similar principles apply to the Family Procedure Rule Committee. Again, it works well. Let us contrast this new committee, which is vested with these vast powers. It will have five members, two of them nominated by the Lord Chief Justice and three appointed by the Lord Chancellor, empowered to look at all these issues. At the end of their consideration of the issues and what regulations should be introduced, the recommendations of three members of the committee will be sufficient to enable the Lord Chancellor to introduce the relevant regulations.
This is rather strange: three nominees by the Lord Chancellor and three needed to justify and support the regulations. Where does the Lord Chief Justice stand in this? Save in one respect, on these issues he is entitled to be consulted, but his “concurrence” is not required. As a matter of reality—good heavens, as a matter of plain English—and as a matter of constitutional principle, there is a chasm between consultation and concurrence. Concurrence requires approval, agreement. Consultation means that if I, the Lord Chancellor, do not agree, with you, the Lord Chief Justice, I can still go ahead; the regulations will still be lawful. Given the breadth of proceedings which are to be covered by this new rules committee, and the Henry VIII powers—I have not overlooked them—this is rather astonishing. After all, not only is the Lord Chief Justice the head of the judiciary, and ultimately responsible for the delivery of justice, but he also has the widest possible access to information about how these new systems are or are not working, where they could be improved and where there are concerns. That access is not available to the Lord Chancellor.
There is one aspect of the Bill which does require the concurrence of the Lord Chief Justice, and that arises under Clause 6(1) relating to amendments to the numbers and members of the committee itself. I venture to suggest that there is absolutely no legislative complication in amending every reference to “consultation” in the Bill to “concurrence”. That might help to put Henry VIII back into the naughty corner. If the Lord Chancellor considers that the concurrence of the Lord Chief Justice is being unreasonably withheld, and to the public disadvantage, it would of course be open to him to come back to Parliament to have the matter looked at here.
Lord Mackay of Clashfern (Con)
My Lords, I too welcome the Bill, which develops the system of assistance in the courts using modern technology. I also share the concerns already expressed. I do not propose to repeat those, because they have been expressed at least as well as I could have done. It is important that the new provisions should not in any way restrict the accessibility of justice. The figures showing how many people can use the systems we have now are interesting, and I would like to probe the detail of them. My experience, over quite a long time, has been that government numbers are not infallible, so one needs to look at that. I am sure that there is a need for care in this respect because, apart from anything else, modern systems of communication are very amenable to glitches of various kinds: we have had plenty of them over the years. It is extremely important that the public, especially people who may not be very familiar with these systems, know what is going on.
One thing that worries me somewhat is knowing for sure that you are on the correct government system. If you try to apply for a passport without too much knowledge of the system you can find yourself in some other group that wants you to pay fees for advice, something our generous Government do not require—so far—if you get on to the right site. If there is a system for paying fees online, you want to be sure that they are being paid to the courts, not to some other group who are willing to receive the money but have nothing to offer in return. I submit that the Bill itself should contain a degree of protection for people in this respect. The noble Lord, Lord Ponsonby, has already suggested that, and it is certainly worthy of consideration at the next stage.
One of the great features of our courts, over all the years that I have had anything to do with them, and for long before, is that they are very immune to any form of leakage. Even in the most important cases that are eagerly awaited by the public as a whole, you do not find a leak in advance of what the judgment is going to be. That is an extremely precious and important aspect of our justice system. One thing that we must be careful about in using an electronic system is that something of that kind could happen. I would certainly like the Bill to have some procedure for trying to ensure that that does not happen.
The next thing I want to mention is judicial discretion. I was always very conscious of the function of the listing officer in making hearings available for people. The speed of getting a hearing is sometimes vital, so the listing officers are officers of the justice system acting under the general directions of the relevant judges. It is very important that if we introduce a system based on electronics, that element does not disappear.
Next, is the Court of Protection covered by the Bill? Is it a civil proceeding, a family proceeding, or a protective proceeding? Is that different, or not?
I have had representations from the Federation of Small Businesses. Apart from anything else, it wants to be represented on the committee, and I shall come to that aspect in a minute, but it is also anxious about the fees that small businesses have to pay to ensure payment by big companies which just delay payment for as long as they can, until they are taken to court. The small business often has to pay quite a substantial portion of the total amount at stake in fees. That matter should be taken into account, and I hope that if a system of electronic communication is introduced, the fees will be reduced, but there is nothing to suggest that in terms in the Bill, although I believe that it should be looked for.
The quality of the English and United Kingdom justice system—I shall come to the distinction in a minute—is generally attributed to the quality of the judiciary. Your Lordships will be aware that there has been concern recently about the availability of quality for the judiciary. I believe that one of the reasons is that the Government, some time ago, departed from the rule that I understood: if someone is appointed to a secure position from which they cannot be taken except by resolution of both Houses of Parliament, the terms on which the person takes it on are the terms which will continue until the time that person retires, or in another way expires. That was undermined by the decision on judicial pensions, which was made some years ago. I believe that if a person is in top-flight practice at the Bar, certainly in England—it may be true in Scotland too—the amount they have to surrender to become a judge is quite substantial. Therefore, the terms on which they are taken on are of vital importance.
The quality of the judiciary is very important. I am not sure about the costs of these proposals, but I am certain that it is more important to ensure that the arrangements for the appointment of judges and the terms of service of judges are secured in such a way that top people can be invited, with a degree of confidence, to take on a judicial position.
As noble Lords know, I have not spent all my time in the practice of the law of England and it occurred to me to see what happens about Scotland. Lo and behold, Clause 14 provides that the Act will apply in Scotland to the two tribunals,
“to employment tribunals and the Employment Appeal Tribunal; otherwise, to England and Wales only”.
If that is so, how is the committee doing? Noble Lords will find that quite interesting. The procedure for committee appointments is made absolutely explicit. First:
“The Committee is to consist of one person who is a judge of the Senior Courts of England and Wales, appointed to the Committee by the Lord Chief Justice”.
So that is a responsibility for the Lord Chief Justice, but the person has to come from the judiciary or “the Senior Courts”. Noble Lords will know that the last time the constitution was changed, one of the results was that England lost its Supreme Court, so it is now from “the Senior Courts”. The important thing is that it is not from the Supreme Court; therefore the judge in question is a judge who exercises English jurisdiction.
The next person is,
“one person who is either a judge of the Senior Courts of England and Wales, a Circuit Judge or a district judge”.
These are all judicial titles from the English system and that person will be,
“appointed to the Committee by the Lord Chief Justice”.
The next person is,
“a judge of the First-tier Tribunal, a judge of the Upper Tribunal, an Employment Judge or a judge of the Employment Appeal Tribunal”—
there are judges of that type in Scotland but the sentence goes on—
“appointed by the Lord Chief Justice”,
and he does not appoint the judiciary in Scotland at all, so there is no possibility of any of these being Scottish judges.
The next person is,
“one person who is either a barrister in England and Wales, a solicitor of the Senior Courts of England and Wales or a legal executive, appointed to the Committee by the Lord Chancellor”.
It is obvious that these are all systems that apply on this side of the border. I suppose the,
“two other persons appointed to the Committee by the Lord Chancellor”,
might possibly have some relationship with Scotland, but it is by no means certain. Can my noble and learned friend explain how this is supposed to work in relation to the application of the Bill to Scotland?
I very much welcome the Bill but I think it probably requires a fair degree of consideration at later stages.
Lord Thomas of Cwmgiedd (CB)
I add my welcome to the Bill. I shall be very brief, since everyone else has welcomed it so warmly, but that is not to say that I am not extremely enthusiastic about it. I am very glad that the Ministry of Justice has found the opportunity of bringing it in as a government measure and for the work that has been done. A number of concerns were raised during the course of this debate, which I think must be addressed, but I will offer a little explanation, if the House will bear with me, as to why the Bill is so necessary.
The primary purpose of the Bill is to reinforce access to justice at an affordable price. What has happened, unfortunately, over the last two years is that, because the Treasury has not been prepared to spend money on justice, fees have risen and risen and risen, while the costs have not gone down. Therefore, one very much hopes that this Bill will bring down the costs of justice, particularly those for small claims, for ordinary citizens and SMEs.
The only way to do this is to take advantage of digitalisation. If you go into the Crown Court these days, you will see virtually no paper. On the other hand, if you were to go to the county court, you would probably find that little had changed—except for the advent of the telephone and some computers—to the volume of paper that would have existed in 1846, when the county courts were established. Therefore, there is a most urgent need to digitalise the process and procedures of the court.
Thirdly, it is quite clear that you can only digitalise and make a fair system if you have effective procedure rules. The proof of that pudding is in the work that my noble and learned predecessor did in the Criminal Procedure Rule Committee, which revolutionised the way in which criminal procedure has been dealt with. It seems to me that you can only look at providing justice more cheaply, more efficiently and more effectively if you can conduct an analysis of what procedural rules are needed. Before this idea was brought forward, an analysis was done of various common forms of procedure in civil, family and, if I may say so, administrative or tribunal justice. Unfortunately, over the centuries lawyers have always had the habit of complicating their own particular area and trying to show how unique it is; hence, you have many different names for the processes by which claims are begun, and you have different names for the people bringing claims. In this House, one again finds names that are not at first sight familiar. An analysis has been carried out, and it is right to say that what underpins this proposal is that, in essence, the basic procedure of all forms of litigation is broadly the same, and in the age of digitalisation that is a very important concept.
I do not know how many will recall this, but in the court system prior to the introduction of technology about seven or eight years ago, there were tens of different systems: one for the probate system, one for certain types of civil claim, one for the Admiralty, and so on. One consequence of that was that, when you tried to modernise it, you had the immense expense of trying to modernise so many different systems. The purpose of the modernisation programme—and one can never be sure when the Treasury will again provide money necessary to modernise the system—is to have something that can be modernised at little cost, so the whole purpose of the modernisation is to try to devise, for smaller and less complicated cases, a single procedural system that can be supported by a single digital system. Nothing else makes any sense, and nothing else is in truth affordable. No one would wish for more money for justice than I, but realism shows that there are many other priorities. So what lies behind this Bill is actually trying to harness modern technology to try to ensure that access to justice is again affordable and that the money that the Treasury will not give is found by making things work in a better and more effective way. Those are the principles that underlie the Bill.
It seems to me that two things are of fundamental importance going forward. First, it is obviously right that those who do not find using digital equipment easy must be entitled to have access to justice in exactly the same way as everyone else—to do anything else would be wrong. Secondly, I do not believe it has ever been suggested that, if proceedings were started using digital systems, and the making of the claim, the provision of the defence and maybe the making of some procedural directions were all done using online systems, a judge would not have the discretion to say, “This looked very simple, but it’s not—I must have a hearing”. I do not think it has ever been in anyone’s mind that, ultimately, you would take away the judge’s discretion. These points are obviously of concern and must be addressed. However, I hope that a way can be found of not putting too much in the Bill, because, as technology advances at a pace that is phenomenal and which no one can predict, having restrictions in the Bill may prove to be a very difficult matter in the future.
That is the background, but I will make one or two general observations. First, I entirely support what my predecessor as Lord Chief Justice, the noble and learned Lord, Lord Judge, said, about the clauses in the Bill—those must be addressed. The Lord Chief Justice has, with the Lord Chancellor, an important responsibility, and as they have a partnership with regard to the running of the courts service, it seems that they ought to have a partnership in regard to the making of these rules, and they ought to agree when legislation should be changed.
Secondly, I draw attention to one provision of the Bill where a great deal more needs to be done. That relates to Clause 1(3)(b), which is the requirement,
“that the rules are both simple and simply expressed”.
Earlier this year, Justice—I declare an interest as a member of its council—produced a report under the chairmanship of Sir Nicholas Blake on Understanding Courts. It made 41 recommendations, most of which were directed at enabling lay people to be able to understand the court processes and the court having a duty to understand the needs of lay users. The Bill ought to go a long way to addressing that.
One of the difficulties that is clear is that rules take effect as subordinate legislation. Certainly, when I was chairman of the Criminal Procedure Rule Committee, having succeeded the noble and learned Lord, Lord Judge, we had one or two interesting discussions with those responsible for the scrutiny of legislation—they are, rightly, particular. However, if rules are to be written in a way that the ordinary lay person can understand them, that is quite a departure, although a very welcome one, from the way in which we have traditionally drafted matters. You might say, “Let the rules be drafted in language that lawyers are comfortable with, and we can provide an explanatory booklet”. That would be to defeat what I believe is essential, which is making law accessible, and there is no reason therefore why the rules should not be drafted in language that the lay person can understand without the need to go to a lawyer. I very much hope that the Government will consider amending the Bill to make clear that “simple and simply expressed” is not “simple and simply expressed for a lawyer”, which is one thing, or “simple and simply expressed for a lay man”, which, unfortunately, is quite another.
Secondly, it seems to me in this connection that it is important that the Government consider making it clear in the Bill that assistance will be provided not only for those who find it difficult to use digital equipment but for those who wish to try to understand more complicated issues, by having access to advice online. I therefore hope that consideration can be given to imposing on the committee the duty to ensure that its rules provide for proper assistance to be given.
I warmly commend the Bill, but I recognise that all the concerns raised must be addressed if it is to go through.
Lord Faulks (Con)
My Lords, as several noble Lords have pointed out, the Bill reflects what was in the Prisons and Courts Bill, which fell because of the 2017 general election. I was a Minister in the Ministry of Justice when Lord Briggs’s interim report on the online court was published. It was met with enthusiasm. I shared the general view that it was necessary to harness modern technology to improve our justice system. At the same time, I retained a little anxiety that some of the enthusiasm was prompted by the cost savings that would accrue to a department which had been a major casualty in the spending cuts—necessary though those cuts were.
The Government’s court reform agenda involves £1 billion-plus investment in transforming the courts and tribunal services. The Bill is a key part of that reform programme. The recommendations for changes to existing rule-making were made by Lord Briggs in his 2016 review, where he described the current system as designed by lawyers for lawyers. The Briggs plan was to introduce simple rules to go hand in hand with the online court. The rules of the Supreme Court were known for their arcane and sometimes impenetrable content. The CPR, born out of the proposals of the noble and learned Lord, Lord Woolf, were an improvement in terms of the accessibility of the language but have, I fear, become just as lengthy and encrusted with case law.
I welcome the call for simplicity and echo what the noble and learned Lord, Lord Thomas, said about access to justice, although we must be careful not to throw the baby out with the bathwater when approaching the making of the rules. It is plainly important to establish an appropriate committee to oversee the new rules, and in that connection, Clause 4 seems eminently sensible, although I take note of what the noble and learned Lord, Lord Mackay, said about the role of Scottish lawyers and others. I also note that the Law Society suggests that there should be representatives on the committee from all branches of the legal profession—solicitor, barrister and legal executive—whereas the current composition suggests that there would be only one of those three. I also observe that a lot of responsibility will fall on the one IT expert on the committee.
Lord Briggs recognised the need for help that may be required with the new process. He stated in a lecture I attended that, “that means face-to-face help for the digitally challenged, not just a helpline with a 25-minute waiting time”. I think all noble Lords will know what he meant. I hope that one slip in the process will not result in the dreaded words: “Start again”. We are, after all, not dealing with the renewal of a parking permit but a dispute likely to be of great importance to the parties. The Government have responded to those concerns by announcing a number of initiatives. I welcome them, although I would expect certain teething difficulties.
The Law Society goes as far as suggesting that there should be a choice between digital and paper when the rules are formulated. I am not sure about that. The pilots should help to evolve a satisfactory solution. If the online procedures are sufficiently accessible and there is assistance of the sort that has been discussed, would it not be better to make the whole process online? Of course, fundamental to the whole revolution is getting the IT right, a point emphasised by Lord Justice Briggs. The noble Lord, Lord Ponsonby, made some important points in connection with that.
By and large, the Explanatory Notes to the Bill are reassuring. I accept that the purpose of setting up the OPRC is clear and likely to operate in the interests of justice. I too retain some doubts about the adequacy of the safeguards against a theoretical Minister who might want to make some quite radical changes to court procedures. In this context, I must declare an interest as a practising barrister, although I accept that judges have given the courts the sort of reputation described by the noble and learned Lord. We advocates do our best to help, although what I say may be regarded as somewhat protectionist.
My reading of the Bill—I may be wrong—is that Clause 7 gives the appropriate Minister an effective veto in respect of the rules that the committee makes or amends. Clause 8 allows the appropriate Minister to give notice to the committee to make a rule for a,
“purpose specified in the notice”.
What is to stop a Minister—not the Lord Chief Justice—doing away with oral hearings or providing that disputes be resolved by officials employed by the Government? With great respect to the noble Lord, Lord Beith, the ECHR does not mandate an oral hearing in all circumstances. They are not always necessary but sometimes they are. Cross examination can and should be illuminating and while oral arguments can be too lengthy, they are still required even in the appellate courts where much of the work is done on paper. What safeguards are there in the Bill to prevent a Minister imposing unsuitable rules on the committee? Should there not be some restraints built in?
I appreciate that this may seem alarmist, but all Governments want to save money and hearings cost money. More worrying is the possibility of a Government of an extreme nature, left or right. This is not impossible in these volatile political times. Authoritarian Governments are not generally supportive of open justice systems, particularly if courts can and do find against them.
The noble and learned Lord, Lord Keen, said that this is a standard power and is there for minor revisions. I am sure that that is what he or some other Minister would use it for, and that the noble Lords, Lord Beecham or Lord Marks, would approach the matter in a similar way. However, what guarantee is there that some Minister of a Government of a different hue would exercise such restraint?
I turn next to enforcement. I understand that the Ministry of Justice is developing ideas about this. Enforcement is critical to the whole process. It is no good having a system that generates a judgment online using modern technology but leaves only 19th-century methods of enforcing that judgment. I look forward to hearing about the progress that the Ministry of Justice is making.
The financial implications of these potential changes are not spelled out in the Explanatory Notes. It is said that the rules will help drive efficiencies in the system and enable delivery of wider court reform savings of approximately £237 million benefits in steady state in 2024-25. Does the Minister have any further details? In this context, he might want to say something about the programme of court closures. I have never been convinced that all court proceedings must necessarily be resolved in large, formal and expensive court buildings. Council buildings have been adapted and have served adequately for many years. It may be different where there needs to be a cell infrastructure or there are particular security requirements. Closing courts is always controversial, as with local hospitals, since it can take a court further away from the locality of the parties to a dispute. Can my noble and learned friend help us as to whether the existence of the online court is of itself going to result in fewer court buildings?
This Bill has benign and worthwhile intentions, and I applaud them, but they should not prevent your Lordships’ House scrutinising it carefully to ensure that there is no collateral damage to our much-valued justice system.
Lord Marks of Henley-on-Thames (LD)
My Lords, from these Benches I echo the broad welcome given to the Bill from all around the House, and to the Government’s wider commitment to implement the recommendations of the 2016 review of civil court structures by Lord Justice Briggs, as he then was. We regard online procedures for commencing and pursuing proceedings in appropriate cases as a welcome innovation that has the potential to make justice more accessible, more efficient and less expensive. We too are encouraged by the success, mentioned by the Minister and my noble friend Lord Beith, of the online divorce service and online money claims, with their very low error rates and high rates of user satisfaction. Small businesses in particular, as the noble and learned Lord, Lord Mackay, said, will welcome the improved efficiency and lower expense of online cases. Indeed, in many ways it is a shame that the Bill has taken so long to reach us after the loss of the Prisons and Courts Bill when the 2017 election was called. That said, I believe that the Bill’s success will be measured by the degree to which it improves access to justice. In this, I echo the points made by the noble and learned Lord, Lord Thomas, and I agree with him that reducing costs along with simplifying and unifying procedures are central to achieving this aim.
For me, one of the most significant provisions in the Bill is the requirement in Clause 1(3)(a),
“that practice and procedure under the rules are accessible and fair”.
That is complemented and supported by the requirement in paragraph (b) that the rules must be,
“both simple and simply expressed”,
emphasised by the noble and learned Lord, Lord Thomas, who sought the strengthening of those words. However, the very helpful briefing provided by the Library says much about the challenge of ensuring accessibility. Lord Justice Briggs said that he was concerned to get beyond the,
“lawyerish culture and procedure of the civil courts”,
but he recognised that barriers might be raised by court users’ lack of understanding of or access to IT. He noted:
“Much the largest concern has been about the need to cater for those who would be challenged by the need to communicate with the court by computer”.
He said in the conclusions to his report in paragraph 12.8:
“The success of the Online Court will also be critically dependent upon digital assistance for all those challenged by the use of computers and upon continuing improvement in public legal education”.
I would go further. My concern, acknowledged in the HMCTS document on the court reform agenda, is with all those people who find it difficult enough to deal with court proceedings on paper and may face even greater difficulties with IT-based solutions. I question whether sufficient attention has been given to the problems likely to face potential litigants—probably defendants as much as or more than claimants—who lack the understanding to handle what is likely to seem a very impersonal system online. I am particularly concerned about the difficulties confronting those whose first language is not English; those who find all legal documents, however simplified, nightmarishly difficult to understand, particularly older people; and those whose ability to engage with officialdom is limited. These points were powerfully made by the noble Lord, Lord Ponsonby of Shulbrede, and the difficulties go far further than unfamiliarity with IT.
I recognise that the court reform agenda document commits to a number of genuinely helpful measures. These include functions to enable users to pause and take advice part way through any process without losing the work they have already undertaken on online forms, which would address the point made by the noble Lord, Lord Faulks, about the danger of users being sent back by the computer to start again. There is to be signposting to online or in-person advice services; a commitment to maintaining and simplifying paper forms, enabling them to be used in parallel with online services; and, most importantly, what is called—in what I suggest is unacceptable jargon—“assisted digital”, by which is meant telephone, web chat and face-to-face services to help users make sense of and use the online processes. I understand that telephone support will be provided by HMCTS, whereas face-to-face support will be delivered through the voluntary sector. The charity Good Things Foundation, already established in a number of areas of interaction with government, will through community networks engage directly with users needing support and assistance.
I welcome the commitment to measures of assistance that the Minister outlined in opening the debate, but I cannot understand why the Government cannot commit in the Bill to ensuring not only that practice and procedure under the rules are accessible and fair but that users will be able to secure adequate help in handling the new online procedures. I believe it would give the House and the wider public greater confidence that the introduction of online procedures is more about broadening public access to justice than about achieving efficiency savings if the Bill incorporated a commitment to help users access, navigate and manage their cases online. The risk of the Bill being perceived primarily as a cost-saving measure was pointed out by the noble Lord, Lord Faulks. I invite the Minister, with whom I have canvassed this possibility, to consider introducing or accepting an amendment requiring the Government to make support available. I was very pleased to hear powerful suggestions that such a statutory requirement be included from the noble and learned Lords, Lord Judge, Lord Mackay of Clashfern and Lord Thomas.
Turning to the detail of the Bill, I share the concern expressed by my noble friend Lord Beith at the plight of those who may not wish to use online procedures facing opponents who do, and about the interface between online and paper proceedings generally. I also share the concern of the noble and learned Lord, Lord Judge, about the Henry VIII power in Clause 9. I understand the reason for that power but agree with him that before amending legislation using it, the Lord Chancellor should be required to agree any amendment with the Lord Chief Justice and the Senior President of Tribunals, rather than merely consulting them. I also agree with him that the same principle should apply to appointments to the Online Procedure Rules Committee. It seems to me that he is also right to say that the principle should apply to other areas where the Bill requires only consultation at present but where agreement between the Lord Chief Justice and the Lord Chancellor seems not just desirable but essential. The noble Lord, Lord Faulks, directed attention to the danger of the Lord Chancellor having the power to require changes to the rules. I accept that that is a problem, but there is a parallel provision in the CPR to similar effect.
On a different point, I am also concerned that the commitment in the Bill and its supporting documents to piloting the new procedures before extending them nationally may be insufficient. The House of Commons Public Accounts Committee described the programme as a,
“hugely ambitious programme to bring the court system into the modern age”,
but had little confidence that HMCTS could deliver it successfully. In particular, it voiced the criticism that:
“The intended pace of the reforms did not allow for meaningful consultations or evaluation, and could lead to unintended results”.
I suggest that a careful programme of graduated piloting of all these reforms would help meet that criticism and enable pitfalls of the kind mentioned by the noble Lord, Lord Ponsonby, to be addressed when encountered on a manageable scale, before their wholesale introduction to an unready public by a largely guinea pig staff. The history of large IT projects in government departments strongly suggests a cautious and carefully staged approach, which this is not.
In this context, it is very important that there should be a statutory commitment to post-legislative review of how the implementation of these online procedures is working after perhaps three years. I believe the Minister may be sympathetic to that aim. It is also important that the introduction of new online procedures should not be used to justify further court closures, which make courts much more difficult to access and damage the local administration of justice.
We have had a helpful recent response to consultation on the court estate, but I am not sure that it is sufficiently flexible. Everyone accepts that we will continue to need court premises in cases where hearings are necessary, but I would argue that the way to respond to any reduction in the need for court premises is by imaginative and innovative use of existing buildings, not by court closures. I thought I detected some support from the noble Lord, Lord Faulks, on that matter. It is wrong to send litigants to distant court centres that are inconvenient and expensive to reach and I do not agree with the Government that accepting a 12-hour day, from 7.30 am to 7.30 pm, often in cases lasting more than one day, is an appropriate response.
In summary, we on these Benches welcome the Bill, we welcome online courts, we welcome the new procedures and we hope they will be successful. But we shall strive in the further proceedings on the Bill to ensure that at its heart is a commitment to increased access to justice.
Lord Beecham (Lab)
My Lords, I refer to my interest as an unpaid consultant in my former solicitors’ practice, as recorded in the register, and to my less-than-complete mastery of the digital process. I may not be alone in that in your Lordships’ House. Clearly there is a case for an appropriate development of the use of technology, not least because of the pressures on the system, enhanced as they have been by the closure of many courts and the inconvenience thereby occasioned to litigants. But this must not be at the expense of access to justice, or indeed a further dilution of the provision of legal aid and advice.
Why have the Government chosen to go well beyond the recommendation of Lord Justice Briggs in the 2016 Civil Courts Structural Review that the online courts should be used for money claims with a value of up to £25,000? Given the number of potential cases across the legal system covering both courts and tribunals, and the diverse character of those cases and of the parties involved, should not the new approach be piloted before being rolled out across the whole country and the whole system?
While the Online Procedure Rule Committee will design the rules, with the requirement that at least three of its proposed five members support the proposed rules, they can be required by the Lord Chancellor to make rules, and he or the Secretary of State will be empowered to amend, reveal or revoke legislation where necessary and/or desirable to facilitate the making of rules. What process is envisaged for the exercise of such powers, and will change be effected through the affirmative procedure?
Given the wide range of application of the new procedure, why is the committee restricted to five members? The Civil Procedure Rule Committee has 16 members, the Family Procedure Rule Committee has 15 members and the Tribunal Procedure Committee has nine. Here a much smaller figure is proposed. Will the Government ensure that there is gender balance within the composition of the committee and its staff, and that the Bar and solicitors are represented, together with representatives from the advice sector and, as has been suggested this afternoon, from the judiciary itself? And will they look again at the suggestion in Lord Justice Briggs’s report that the membership of committees should include in relevant cases members with relevant skills such as engineering and IT? Given their declared intention for the committee to be independent, how will the Government exercise their power,
“to require the OPRC to make online rules to achieve the specified purpose”,
within a specified time? The Law Society points out that Clause 1(3)(d) refers to the use of,
“innovative methods of resolving disputes”.
What do the Government have in mind in that area?
Clause 1(6) and (7) authorise rules to provide for proceedings of a specified kind not to be governed by, or to cease to be governed by, rules, and instead to be governed by civil procedure and other existing rules. What consultation will take place and what criteria will be applied to that process?
Clause 3 allows the Minister by regulations to provide for the person initiating proceedings to choose between online and other procedures and rules. What consultations have taken place or will take place on this process? What role is there for the defendant in such cases? The clause also empowers Ministers by regulations to allow online procedure rules for excluded proceedings. What is the rationale of this provision? Can the Minister exemplify how it will work?
Why will regulations empowered by Clause 6 be made by the negative resolution process?
Clause 8 empowers the Minister to write to the committee asserting that he,
“thinks it is expedient for Online Procedure Rules to include provision that would achieve a specified purpose”,
which the committee has to make “within a reasonable period”. The Explanatory Note says that this,
“may be required in situations of urgency”.
Can the Minister exemplify such situations and indicate what would constitute a “reasonable period”? Will it be open to the committee to decline a request or amend any proposed change?
Will the powers of the Lord Chancellor in Clause 9 to amend secondary legislation to reflect the introduction of online procedure rules be made by the affirmative or negative procedure? I concur with the Law Society’s view that it should be the former, as others have suggested today.
There is a particular concern about the impact of the Bill on housing cases, an issue raised by the Housing Law Practitioners Association, to which Lord Justice Briggs responded in his report by asserting:
“Claims for possession of homes (even if accompanied by a money claim) should at least initially be excluded from the Online Court”.
He also stated that he was,
“persuaded that there should not be compulsory inclusion within the Online Court of the damages-only sector of these claims, particularly where fixed costs recovery still supports an economic model for CFAs”.
He added:
“I continue to see no reason why there should not be voluntary admission of these cases, where a tenant claimant so wishes”.
However, he added that he could not see,
“how these counterclaims could easily be brought within the Online Court if the possession claim is to be excluded”.
On enforcement, Lord Justice Briggs recommended that,
“urgent steps need to be taken to address the under-investment and consequential delays which clearly undermine the quality of the County Court bailiff service”.
Can the Minister indicate whether, and if so when, the Government intend to address this issue?
Clause 2 does not explicitly refer to housing cases but, in the light of Part VII of the Housing Act 1996, it would appear that they are included in the category of civil proceedings. Perhaps the Minister will confirm that that is the case?
Your Lordships will be aware that housing law is an area in which access to justice is problematic with, in effect, legal aid and advice deserts in many parts of the country enhancing the vulnerability of tenants. It is not unreasonable to question whether in this most sensitive area of the justice system reliance on a digital system is the right approach. What steps will the Government take to ensure that adequate support is available to tenants, many of whom will be vulnerable and unequipped to contest a claim for possession, and will they, and if so when, review the efficacy of the changes embodied in the legislation?
There is wider concern about the impact of the policy on people unfamiliar with the digital world. PCS, the Public and Commercial Services Union, shares this concern and avers that the changes are primarily driven by the 40% cut in the Ministry of Justice’s budget, and points to the fact that the Courts and Tribunals Service’s own staff survey revealed that 85% of its respondents regarded the new technology as having a negative effect on timeliness, with 81% averring that it interfered with their ability to give legal advice and ensure a fair hearing.
Finally, can the Minister assure us that the next move to modernise the justice system will not be to replace the judiciary and tribunals with artificial intelligence?
Lord Keen of Elie
My Lords, on the last point, I am not aware of any proposal to attempt to replicate the ability of our judiciary with artificial intelligence. I am obliged to the noble Lord, Lord Beith, for his acknowledgement that the Government are seeking to leap into a gap rather than an abyss.
I will begin by making a number of general observations before I respond to the particular points raised by noble Lords—at this stage in the process we are listening and will consider the points made. First, there is concern that powers under the Bill will enable the Lord Chancellor to take extraordinary steps with regard to the judicial system; for example, by requiring rules that dispose of rights to an oral hearing across the board, perhaps, rather than just in particular cases. Let us be clear, those powers already exist. They are not exercised in that fashion and there is no intention to do so. That is not the purpose of this legislation.
The overarching powers of the Lord Chancellor with regard to the rules and the rules committee already exist with respect to the civil, family and criminal rules committees. This simply reflects that fact. There has been no suggestion in the past that the Lord Chancellor, who ultimately would always be answerable to this Parliament, would seek to abuse any powers he might have in that respect.
Furthermore, the Bill is intended to introduce the opportunity for additional, but simplified, court processes. It is not replacing the existing processes. At the prompting of Lord Justice Briggs’ report, it introduces the idea of a far simpler and more accessible system of disposal with regard to civil courts, family courts and tribunals. It is intended that it should be implemented in the first instance in the area of financial claims, where we already have some digitisation—a digital portal—and extend, in due course, to family law claims. I do not understand there to be any intention to extend it to the Court of Protection. I am not aware of any intention to extend it to housing claims but I will take further soundings on that point and respond to the noble Lord, Lord Beecham, when I have done so.
I emphasise again—and this is partly in response to the points made by the noble Lord, Lord Ponsonby—that we are intending to introduce an additional, much-simplified procedure that people can employ. Of course, we recognise that not everyone will wish to engage in that procedure, although why they would want to pursue a more complex and less accessible procedure might be difficult to fathom. We understand that some people will find it difficult to engage with such a digital procedure and that is why we intend to take steps to make assistance available to people, whether by telephone, other electronic means or face to face. As the noble Lord, Lord Marks, indicated, provisions are already in place for such face-to-face advice to be given.
Some people may want to engage in the simplified procedure but to do so in writing. There will be scope to do that. Somebody may put their claim in writing, rather than online, and that written claim may then by scanned on to the system. Somebody may respond to a claim in writing. Whether it is then appropriate for the claim to remain on the online system will be a matter of judgment at the time, depending on how parties respond to the system. As I understand it, there will be the ability to engage in the simplified process even if there is difficulty in actually entering the online system itself. However, there may come a point where there is really nothing to be gained from having people pursue such written forms along the lines of this new set of rules, and they may then revert to the existing civil procedures. That remains to be seen.
The noble Lord, Lord Ponsonby, talked about consultation and the potential for pitfalls with new technology. We are very conscious of that. The intention is to pilot the schemes and reflect what has already been done with regard to small financial claims by extending the limits for those claims. Overall, though, I emphasise in response to the noble Lord that we intend to introduce a simplified process that does not replace the existing process but will provide the means by which people without recourse to legal advice and guidance will be able to pursue a claim; in other words, as Lord Justice Briggs observed, a process that is designed not by lawyers for lawyers but for the use of the lay person.
Lord Ponsonby of Shulbrede
My Lords, the Minister has made that point twice. Does that mean that we will see two systems operating within the family jurisdiction: the simplified online system, to which the Minister has referred, and the existing paper-based system, which the Minister is saying is more complex? Will there be two systems operating in parallel?
Lord Keen of Elie
I do not suggest that there will be two systems operating in parallel, although it is perhaps the use of that word that I am concerned with. This will be the staged introduction of a simplified process that will cover simplified claims and, in due course, family law claims. It will not replace the family rules that already exist; it will be an additional, simplified process that people can engage in through a digital portal.
As I say, those wishing to use the simplified process may begin in writing and then see that written claim scanned into the system. They will still be using the simplified system of rules that it is intended should be introduced. There may be cases—this is where judicial discretion will come into it—where it is determined that it is not appropriate for a case to continue in that simplified process. There could be any number of reasons for that to occur and I would not seek to speculate on what they might be. That will be the outturn of the application of these processes once the relevant rules have been made and applied to particular types of claim.
The noble Lord, Lord Beith, asked what would happen when one party wanted to use the online process and another did not. As I have sought to explain, it will be essentially a situation in which a claim will be made using the simplified process. If it is not made online, it may be made in writing and then scanned into the process. Whether it is feasible for it to continue in the digitised process, we will have to wait and see. However, the idea is certainly to give the claimant the option as to where he begins with the claim. At the end of the day, there is an element of flexibility, I hope.
I turn to the observations of the noble and learned Lord, Lord Judge. He touched first upon the membership of the rules committee. The intention is that the rules committee should be kept relatively small and flexible. There is of course provision in the Bill for changes to be made in the constitution of the committee depending upon our experience, but this is going to be the starting point to see how easily it can work. Regarding the membership of the committee, with two appointed directly by the Lord Chief Justice and three by the Lord Chancellor after consultation with the Lord Chief Justice, the noble and learned Lord brought out the idea that where we have consultation within the Bill, we should replace it with concurrence. I question whether that would be appropriate. I hear what has been said on that point by number of noble Lords, but there is a balance to be struck here. For example, within the provisions of the Bill itself, where there is a need for regulation to be made subject to the affirmative procedure, noble Lords will see that there is to be consultation with the Lord Chief Justice.
Examples can be found in Clause 2, which addresses “‘Specified kinds’ of proceedings”. Regulations there are,
“subject to the consultation requirement”,
with the Lord Chief Justice, among others, and,
“subject to affirmative resolution procedure”.
The same applies to Clause 3. However, in circumstances such as those in Clause 6, where there is to be consultation, there is also a provision for the negative resolution procedure.
At the end of the day, it is the Lord Chancellor who will be answerable to Parliament. It strikes us as unattractive to have a situation in which the public, the Executive and Parliament wish to see a change in procedures and process, but the Lord Chief Justice can effectively veto any such change because he is not prepared to give his concurrence. The Lord Chief Justice is not answerable to Parliament but the Lord Chancellor is. In those circumstances, it would be for the Lord Chancellor to answer to Parliament after consulting the Lord Chief Justice.
Before I go on to a contrasting situation, the noble and learned Lord, Lord Judge, said that of course the Lord Chancellor can always come back to Parliament if the Lord Chief Justice will not give concurrence. Yes, he could, to try to seek primary legislation to overcome that issue and amend the existing Act. Given the legislative process, it might take years to address a situation in which changes are desired, if the issue is one of concurrence not consultation. Therefore, I do not believe that that is an answer to our concern on this point.
I will mention a contrast. Parts 1, 2 and 3 of Schedule 1 to the Bill deal with practice directions, which are given by the Lord Chief Justice to the judiciary. Those are very much the responsibility of the Lord Chief Justice, and in these circumstances, his obligation goes only so far as to consult the Lord Chancellor. I suggest that there is an element of balance here. When a matter falls very directly within the responsibility of the Lord Chief Justice, as with practice directions, he is required only to consult the Lord Chancellor, and when a matter falls very much within the responsibility of the Lord Chancellor, because he is answerable to Parliament, he is required only to consult the Lord Chief Justice. That is the balance that the Bill seeks to achieve in this context. It may not be a balance that is acceptable to everyone, including the noble and learned Lord, Lord Judge. I hear what he said on this point and it is something I will consider before Committee. Nevertheless, that is how I would explain the present position.
I turn to a number of points made by my noble and learned friend Lord Mackay of Clashfern. He mentioned the dangers of any electronic system and what he termed “leakage” therefrom. That is a perennial problem for us all, but it is one we are conscious of and will seek to guard against. I see no reason why there should be any greater problem there than there is with the present judiciary.
My noble and learned friend Lord Mackay also asked whether the Court of Protection would be covered. Strictly, one could argue that the proceedings of that court are civil proceedings, but there is no intention to make them subject to this simplified procedure. As I understand it, we are concerned in the first instance with financial claims, and thereafter with developing this in respect of family law claims. Each step of the way will involve a process of consultation, not only with the relevant committee but with the Lord Chief Justice, the Secretary of State—in so far as it deals with employment tribunals and employment appeal tribunals—and the Senior President of Tribunals.
My noble and learned friend Lord also raised an issue about the quality of justice being attributable to the judiciary—with which I entirely concur—and concerns about such matters as pensions, which are currently being considered and addressed by us. I do not take that matter further.
He also raised the question of Scotland, because, in respect of the employment tribunals and employment appeal tribunals, these provisions extend to Scotland. Of course, at present, these are UK-wide jurisdictions, which is why the provisions with regard to appointment to the committee are set out as they are. There will be developments there because, under the amended Scotland Act, the Scottish Government will, in due course, be able to take up responsibility for employment tribunals and employment appeal tribunals. As and when that happens, the whole process will be handed to them and will come under their own tribunal legislation. In the meantime, we have consulted, not only with officials but with Ministers in the Scottish Government, who have expressed themselves content with the way the present provisions are formulated. I hope that brings some relief to my noble and learned friend.
The noble and learned Lord, Lord Thomas of Cwmgiedd, also welcomed the Bill. He raised a number of questions about how it would operate in practice. He emphasised a point made by Lord Justice Briggs: the whole point of this process is to bring forward a set of rules—a system of justice—that is not only accessible to lay people but understood by lay people. That is what lies behind much of what we propose in this legislation. We will ensure that those lay persons are given assistance in accessing these digital portals. I do not consider it necessary to place that in the Bill, and I question the way in which that might be done. I suggest that it is better that we have sufficient flexibility to ensure that, as technology develops, we can respond to those developments and make the appropriate provision available for those lay persons who wish to employ these processes.
My noble friend Lord Faulks and other noble Lords referred to the programme of court closures. There is no direct link between these proposals and court closures, but if this digital process is successful, we may see a reduction in the demand for physical court structures. However, that is an incidental point and not the intent behind this legislation, which is to improve access to justice for all. On that last point, I am reminded that my noble and learned friend Lord Mackay also raised the question of small businesses being anxious about fees and related matters. Of course, if we can develop this digital process successfully, the cost of litigation should be reduced. I hope that gives some reassurance to parties such as small businesses.
The noble Lord, Lord Beecham, raised a number of issues—including housing, on which I will write to him—about the powers available to the Lord Chancellor. He referred in particular to Clause 9. The Lord Chancellor’s power there is subject to the affirmative procedure. That is expressly provided for already. There are a number of instances in which there is provision for the negative procedure, but the power in that clause requires the affirmative procedure.
The noble Lord referred to Clause 8 and asked what would be a “reasonable period”. I have to respond: how long is a piece of string? That would be addressed in the facts and circumstances of any case, but it is not something we could anticipate at this stage. The purpose of these provisions is to provide the maximum flexibility for the provision of a simple and accessible set of rules for disposing of civil claims, family claims and tribunal matters. To achieve that flexibility, we have somewhat wide-ranging provisions, but they are no greater or wider than those for the existing Civil Procedure Rules and Family Procedure Rules. They will be exercised subject to consultation or concurrence with the judiciary and disposed of by an independent committee, with the Lord Chancellor being answerable ultimately to Parliament not only for their terms but for their effects.
Finally, on review, it is intended that we will have an interim review in about 2021 and a completed review in about 2023 or 2024. It would not be sensible to seek a review any earlier than that because we need to see how these processes will work in practice and evaluate feedback from those who engage with them.
In these circumstances, and having regard to the reminder I keep getting from my Whip about the amount of time I have, or do not have, left, I commend the Bill to the House.