Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Baroness Drake and Lord Beecham

Report stage (Hansard): House of Lords
Monday 24th June 2019 Lords Chamber

[Baroness Drake]

My Lords, I support Amendment 22 to Clause 8. I will steer clear of debate on Clause 9, being neither a judge nor a barrister or solicitor.

In Committee, deep concerns were expressed about the extent of the ministerial powers in the Bill, which could result in rules that set digital engagement and participation in online courts as compulsory conditions for access to justice in civil proceedings. In effect, the ministerial powers in the Bill have the potential to require people to choose between online proceedings or not pursuing legal claims. The Constitution Committee shared those concerns. The Minister sought to mitigate those concerns by giving assurances as to the Government’s intentions. In Committee, in response to my noble friend Lady Corston, the Minister commented:

“We intend to appoint a committee of experts to formulate these rules, including judicial members. They will have regard to the need for access to justice. Certainly, we have confidence in the ability of such a committee to formulate rules that reflect the need for all members of the community to have access, not only those who are perhaps more digitally alert and astute than the minority. We lay our confidence in the fact that there will be such a committee, that it will make regulations and that it will do it under the aegis of not only the Executive but the judiciary, and the Lord Chief Justice in particular”.


However, Clause 8 explicitly allows Ministers to both instruct and overrule that committee of experts.

On a further occasion, the Minister gave an assurance that,

“judicial discretion … ultimately, is paramount, and nothing in the Bill or that we would anticipate in the regulations to be made pursuant to the powers under the Bill would undermine that judicial discretion, which ultimately has be exercised in the interests of justice”.

However, as the noble and learned Lord, Lord Mackay, so acutely observed in Committee:

“It is not judicial discretion but rules that may require the parties to participate in the hearing by means of electronic devices. Therefore, it is not a question of the judge in charge of the case making that decision; the preliminary rules will require it, and the judge will be bound by that”.—[Official Report, 10/6/19; cols. 287-89.]


In summary, notwithstanding ministerial assurances, Clause 8 confers powers on Ministers to require specific provisions to be included in the Online Procedure Rules which the Online Procedure Rule Committee must comply with. Clause 8 also requires that the rules that the committee is required to make must be in accordance with Clause 7, but that clause gives the Minister explicit powers to disallow rules made by the Online Procedure Rule Committee of experts. Clause 8 gives Ministers considerable scope but fails to frame those powers in a way that ensures access to justice and does not give rise to the potential of a person having to choose between online court proceedings or not pursuing their case.

There are real concerns across the House about the potential of the powers given to Ministers in Clause 7, and I will not replay them here, but the case for Amendment 22, which introduces a degree of control over the exercise of those powers by requiring the Minister to secure the concurrence of the Lord Chief Justice, who is the head of the judiciary and is ultimately responsible for the delivery of justice, is, I believe, compelling.

[Lord Beecham]

My Lords, I welcome the Minister’s acceptance of the need for the Lord Chief Justice to concur with the creation of rules rather than merely to be consulted. However, Amendments 16 and 19 look to enhance parliamentary scrutiny by requiring the affirmative process. The increasing reliance on the negative procedure has already roused concern in your Lordships’ House, and many Members are further concerned about its application to this sensitive area. The Law Society strongly endorses the amendments prescribing the affirmative procedure on the basis that it would secure further parliamentary scrutiny of the regulations.

Amendments 20 and 21, which are in my name, would empower the committee to decline a government request—in effect, an instruction—to create certain rules, which is really the issue that my noble friend Lady Drake has just referred to. If there is to be a really meaningful role for that committee, to my mind we need an amendment along the lines of Amendments 20 and 21.

Finally, we will certainly support the noble and learned Lord, Lord Judge, if he seeks to take the opinion of the House on the two amendments in his name.

Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Baroness Drake and Lord Beecham

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

[Lord Beecham (Lab)]

My Lords, Amendment 10 in my name gives the right to respond, in addition to the person initiating the claim, to choose whether the new procedure applies. Amendment 11 then provides that, in the event of disagreement between the parties, the relevant court or tribunal will determine which course to follow—the matter just referred to by the noble Lord. Indeed, I concur with all the issues raised by the three Members of your Lordships’ House who have spoken already in this debate.

I confess that my drafting is somewhat less than elegant, but this is an important issue, given the difficulty that many will have with an online process, stemming from unfamiliarity with the process or medical or mental health issues. The report of the Constitution Committee of 7 June, to which reference has just been made, raises serious concerns about the process that go beyond the matters referred to in these amendments but are most apposite to them.

The committee declares:

“It is unsatisfactory for legislation to be drafted in a way that fails to acknowledge the fundamental right to a fair hearing, both at common law and under the European Convention on Human Rights. While ministers may have no intention of using the powers provided by the Bill to undermine the right to an oral hearing, it is incumbent on Parliament to frame the powers it confers in a way that acknowledges and respects fundamental constitutional principles”.


The committee expresses its concern that,

“the Bill confers broad powers on ministers to limit oral hearings in a much wider range of cases than is currently envisaged”,

and suggests:

“One way to secure appropriate control over this power would be to require not just consultation with the Lord Chief Justice, or the Senior President of Tribunals where appropriate, but their concurrence”,


in those proposals. In other words, consultation has to be taken seriously in these circumstances—perhaps more seriously than in most, given what is at stake here for the workings of our legal system.

[Baroness Drake (Lab)]

My Lords, I support the intentions of Amendments 1 and 6 in the name of my noble friend Lord Ponsonby and Amendments 10 and 11 in the name of my noble friend Lord Beecham. In summary, they remove the potential requirement that people must choose between online proceedings and not pursuing legal claims, strengthen judicial discretion on the need for a full court hearing and protect the right of parties to proceedings to seek oral hearings.

It is right that courts and tribunals be modernised, but in utilising new technologies access to justice must not be undermined. The impact assessment notes that the conventional economic rationale for government intervention is based on efficiency or equity arguments. The rationale here is efficiency, referencing,

“outdated processes … costly for both the Government and court users”.

A reliance on an efficiency rationale must not prejudice access to justice, but I fear that that is the Bill’s potential impact. Clauses 1 to 3 give Ministers extremely broad powers to replace traditional proceedings with online ones, allowing for the possibility of online proceedings being the only option in the absence of Clause 3 regulation permitting a person to choose between online or conventional proceedings.

The Minister can give assurances as to the Government’s intentions but they are not binding over time. The Government argue that additional safeguards are not needed, but the Online Procedure Rule Committee’s powers will be far greater than those of any existing rule committees. Indeed, concerns about access to justice are heightened because the Bill confers powers to limit oral hearings in a wider range of cases than was envisaged by Lord Justice Briggs’s recommendation to introduce an online court to resolve low-value civil money claims. I quote the noble and learned Lord, Lord Judge, at Second Reading:

“Effectively, this Bill covers all non-criminal proceedings … this is a serious, wide-ranging Bill with wide-ranging consequences”.—[Official Report, 14/5/19; col. 1511.]


It may be argued that protecting access to justice is implicit in the Bill, but I believe that Parliament needs greater confidence; it should not rest on judicial intervention or ministerial assurance to address concerns about ministerial powers. I recall the Minister addressing this House on the draft Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 in response to concerns that such fees would restrict access to justice. He asserted:

“We believe that the mitigations we have put in place will properly protect access to justice for those seeking to bring claims”.—[Official Report, 8/7/13; col. 85.]


In July 2017, the Supreme Court unanimously held that, as the order prevented access to justice, tribunal fees were unlawful and must be quashed with immediate effect.

As many noble Lords have said, curtailing the use of oral hearings will have a particular impact on access to justice for vulnerable court users with limited digital means, digital literacy and general literacy skills. The Constitution Committee observed that,

“the Office for National Statistics concluded that … 5.3 million adults in the UK … could be characterised as ‘internet non-users’”.

However, the committee noted that this figure may understate the problem. It said:

“Such figures do not take into account those with limited digital skills, for whom basic browsing and messaging may be within their capabilities but the complexity of online legal forms may not”.


People with limited general literacy skills will be disadvantaged by proceedings conducted solely in writing without access to oral hearings. As has been referred to, the charity Mind reports how people with mental health problems are disproportionately likely to experience digital exclusion, struggle with digital engagement and are nearly twice as likely to experience legal problems.

The Government’s objective is to devise new rules that will focus on users being able to solve grievances and resolve their issues online at the earliest opportunity, as well as to encourage more people to resolve disputes before they reach the hearing stage. If the Government are right in their assumptions, which are still to be tested, many people will prefer to use online proceedings voluntarily and efficiencies will be gained. However, that is not compulsion; people should retain the right to seek access to an oral hearing. Ministerial powers with the potential to require people to choose between online proceedings or not pursuing legal claims carry the real risk of incompatibility with the principle of access to justice. Amendments 1, 6, 10 and 11 seek to address that risk.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Debate between Baroness Drake and Lord Beecham

Monday 11th November 2013 Lords Chamber

[Lord Beecham (Lab)]

My Lords, my noble friend asked at the beginning of her speech whether the Committee thought that a 30-day period—no more than that—was adequate for consultation. It is quite clear that the committee of the noble Lord, Lord Goodlad, which has reported on consultation matters, thought that such a period is inadequate and that a six-week period ought to be regarded as a working minimum. As my noble friend pointed out, the period in question partly covered a holiday period as well. That is just one flaw in this process, which is another example of this Government’s propensity to cobble together wholly unrelated issues into a single Bill.

I said at Second Reading on the anti-social behaviour Bill that it was not so much a curate’s egg as a curate’s omelette, combining as it did a variety of different substances. I said on that occasion that there were unsavoury ingredients; I have to say in connection with this part of the Bill that these are certainly unsavoury ingredients. It is strange, is it not, that this is a Government who have taken so long to begin to do anything about the massive scandals in the banking industry, the regulation of letting agents—my noble friend Lady Hayter has been pursuing that for some years—the energy companies or payday lenders, none of which are effectively regulated but are all matters of huge public concern? Yet they do not get legislation, let alone legislation in the form in which it emerges in this Bill.

The Explanatory Notes give some justification for Part 1, the part of the Bill that was contained in the coalition agreement. I think it was also in the Conservative manifesto. It was certainly the Prime Minister’s intention to deal with the “next scandal” which he, perhaps rightly, identified as political lobbying. Three years on we get a Bill which deals with that, after a fashion, but with these additional elements thrown in—and in a quite unjustified and unexplained way.

The Explanatory Notes do not touch on the rationale for these proposals. Just as the anti-social behaviour Bill includes such matters as dangerous dogs, firearms, court fees and policing, all dragged together in a Bill which is supposed to be dealing with anti-social behaviour, in this Bill we get proposals, out of nowhere, affecting trade unions in a way that is not imposed on any other sector. It is not imposed on professional bodies or, in anything like this form, on the world of charities. It is purely a question of singling out trade unions. As others of my noble friends have said, perhaps these proposals were intended to convey the misguided view that these are all political organisations pledged to support the Labour Party, which is palpably not the case. It is an unfortunate example of recidivism on at least the Conservative part of this coalition Government that they should hark back to that kind of divisive and inaccurate view of the trade union movement, which is much broader than they would like people to think.

There is no justification for Part 3. We have yet to hear from the Government why at the last minute they have chosen to add this dubious ingredient to the legislative omelette to which I have referred. It will be interesting to hear what explanation the Minister can give over and above the flimsy grounds that have been referred to by my noble friends already, particularly my noble friend Lady Donaghy, and the handful of responses that conditionally seem to raise concerns that have not been adequately explored or explained. This is an unworthy addition to a Bill that should have dealt with the much more serious problem of the impact on our parliamentary democracy of lobbying, which the Prime Minister identified all that time ago. This is hugely important.

When it comes to compiling information, perhaps the Government should give more attention to ensuring that we have a fully complete electoral register underpinning that parliamentary democracy, while expressing their concerns in this very party-political way about the membership of trade unions organisations, which are already significantly regulated. I hope that this debate will persuade the Government to have second thoughts. I am not over-optimistic, but they really ought to have second thoughts about pushing forward a measure that is irrelevant, in this part anyway, to the needs of our country, to the role of the trade unions and to industrial relations.

It also imposes a significant financial burden on the sector. In local government, we have something called the new burdens theory, under which, if new responsibilities are laid on local authorities, the Government are supposed to make financial allowance for them. There is no indication whatever that they will do so here. Yet this is a Government who, in their legal aid provisions, scramble round to find areas for cutting back on access to justice for minimal savings. They are prepared to inflict on organisations representing millions of people costs in excess of those that they are seeking to achieve by legislative measures in that area. It is a disgrace and the Government should think again.

[Baroness Drake (Lab)]

I support my noble friends Lord Monks and Lord Stevenson. Trade unions are a very important part of civil society. In their contribution to it they have many proud achievements: the equal treatment of part-time workers; the financial assistance scheme for pensioners whose companies go bust; and the national minimum wage, to mention just a few. These concepts were challenged at the time, but are now accepted as an integral part of a civilised and advanced society.

A free and independent collective voice for ordinary working people is also an essential ingredient for a secure democracy, whether we look back to the 20th century or to what is happening in some emerging economies. Oh, for some of the mature, stable, free, independent voices to address some of the issues that have occurred in those civil societies! In spite of that, at the moment we have a narrative that quite crudely says, “Unions bad, employers good”.

We are seeing in this Bill an opportunity to give extensive powers to part of the state to access trade union membership records, allowing third parties, whoever they may be, to make complaints. These powers are being granted in the absence of coherent reasons for the Government to make this necessary, or of a problem that they are seeking to remedy. We are struggling to understand that. This is a sizeable attack on an important, voluntary set of organisations in their contribution to civil society, and they are being subjected to potential onerous conditions.

Much mention has been made of strike ballots. I confess to having conducted quite a few in my previous existence. As my noble friend Lord Whitty commented, they are about bargaining units and who are the union members within those units. The employer wants to know exactly who is involved in the strike and which employees will be absent. Employers can readily seek injunctions if they are unhappy with the information that unions provide. I know to my cost—I have experienced those injunctions and have had to stand there and explain in detail. I do not bite ankles, but I still found myself facing an injunction.