Courts and Tribunals (Online Procedure) Bill [HL]

Lord Beecham Excerpts

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

[Lord Pannick (CB)]

My Lords, I support what has been said by the noble Lords, Lord Marks and Lord Beith. I declare an interest as a barrister practising in offline courts. That was the reason I did not participate at Second Reading.

The Briggs report has been referred to, which said at paragraph 6.13 that there are persons,

“living mainly in rural areas with no access to broadband, those who cannot afford a lap-top or desk-top computer, and those who for a variety of understandable reasons regard moving to computer after a life spent communicating on paper a step too far”.

I agree with previous speakers that it is unacceptable that the Bill says nothing about such potential litigants. The Minister accepts that their interests must be accommodated—they need to be accommodated in the Bill.

That is the view of your Lordships’ Constitution Committee, on which I served with the noble Lord, Lord Beith, and the noble and learned Lord, Lord Judge. Our report said at paragraph 16 that, against the background of what was said by Briggs,

“forcing people to choose between online proceedings or not pursuing legal claims at all risks excluding large numbers of people from the justice system”.

For that reason, your Lordships’ Constitution Committee has recommended that the Bill must place duties on the Lord Chancellor to ensure that adequate provision is made to enable access for the sorts of people I have mentioned.

[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.

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[Lord Ponsonby of Shulbrede]

My Lords, Amendment 2 addresses Schedule 2 on the Online Procedure Rule Committee, how it relates to proceedings under the standard civil, family and tribunal procedures rules, and when these do not apply. Although I appreciate the importance of a clear process indicating which rules govern proceedings—and giving precedence to one committee does achieve that—I am concerned that the result will be the OPRC being able to make decisions about the appropriateness of online procedures for cases without input from the Family Procedure Rule Committee or other relevant jurisdictional committees. Amendment 2 could resolve this issue by clarifying under Clause 1 that the relevant jurisdictional rule committee must determine which proceedings can be governed by Online Procedure Rule Committee.

On Amendment 8, Clause 1(1)(b) would allow the OPRC to designate any family proceedings to be dealt with online. While I appreciate that the aim of the legislation is to be permissive, with the details to be delegated to the OPRC, I am concerned that no limits are set out in the primary legislation in relation to the appropriateness of online processes within the family court. At Second Reading, I raised concerns about the appropriateness of full video hearings in the family court. The president of the Family Division has said that, in the vast majority of cases, face-to-face hearings would normally be required for contested cases involving oral evidence, multiparty cases concerning litigants in person, or any cases concerning children. It can be the case that not all participants have to be present in court. I know that is fairly common practice in other parts of the country, depending on the distance to be travelled, when turning to the family court. But the general expectation should be that anything to do with the family jurisdiction—any contested matter—should be held in person and not online.

I beg to move.

[Lord Beecham]

My Lords, I refer to Amendments 7 and 8 in this group. I suspect that the inclusion of a reference to criminal justice proceedings is otiose; I hope so. No doubt the Minister will confirm that, in which case I will not press the issue; it would be entirely unnecessary, as indeed it should be.

There is a concern about possession claims for homes. We in your Lordships’ House are all aware of the great pressure on the housing sector and the vulnerability of a great many people in private rented accommodation in particular. It seems sensible that they should not be included in the general proposition of reverting to digital processes, because I suspect they are the least likely to be able to cope with that way of proceeding. I hope the noble and learned Lord will give that some further consideration, although he may not necessarily respond one way or the other today. Given the state of the housing market and the well-known difficulties experienced by so many tenants—and the difficulties they would have in proceeding under the provisions of the Bill, particularly in the absence of legal aid and advice in so many parts of the country—it would be wrong to include them in a system which would effectively give them no recourse to advice and support.

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[Lord Keen of Elie]

It is intentionally broad. Again, this is not going to proceed without the input of the judiciary, in particular the Lord Chief Justice, and without application to the formulation of rules of a committee with expertise in all these areas. I suggest it would be counterproductive to introduce at the outset statutory limitations on the operation of these simplified procedures. That is an unnecessary straitjacket, given the way the legislation is formulated and how the simplified Online Procedure Rules will be introduced, not only by the Executive but by the judiciary and relevant committee. In these circumstances, I invite the noble Lord to withdraw his amendment.

[Lord Beecham]

Did the Minister imply that it would be possible to bring forward provision to include housing, presumably by secondary legislation? Is that what he has in mind? If so, would it be an affirmative or negative resolution?

[Lord Keen of Elie]

To clarify, I believe I said that many housing issues are currently governed by the Civil Procedure Act 1997. They are therefore subject to civil procedural rules and could, in turn, be subject to rules introduced by the OPRC for digital access. There is no present intention to address that in the context of housing. I went on to add that, at present, there is an online procedure for some forms of housing claim, such as possession claims, which can be made through the relevant website. I emphasise that housing cases fall within the wide remit of this legislation, but there is no present intention to embrace them within the OPRC.

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[Lord Woolf]

My Lords, I hope it will not be inappropriate, in view of the elegant and powerful speeches already made, for me to say these few words. I was a party to the concordat, the importance of which was that it established the new relationship between the arms of government, to which the noble and learned Lord, Lord Mackay, referred, until the Constitutional Reform Act 2005. I hope it will suffice to say that everything said in support of this amendment seems four-square with what was said in the concordat, indicating when the consent of the Lord Chancellor or that of the Lord Chief Justice would be required. These were heavy burdens that my successors as Lord Chief Justice had to carry in consequence of, first, the concordat and then the Constitutional Reform Act. It would be so easy to allow legislation of this sort to undermine the spirit of the concordat and the provisions of that Act by creating a precedent, which could be pointed to subsequently, indicating that the clear distinctions of relevant situations where the consent of the Lord Chief Justice should be required are not as they were previously understood to be.

[Lord Beecham]

My Lords, I simply add that the crowded Benches behind me will support the amendment. We are entirely in sympathy with all that has been said.

[Lord Keen of Elie]

My Lords, I begin with a simple point of clarification, although it may be that confusion reigns only in my mind. Where the Bill refers to the Secretary of State, it refers to the Secretary of State for BEIS, because of his responsibilities with regard to employment tribunals. Where it refers to the Lord Chancellor, that reference includes of course the Lord Chancellor’s appointment as Secretary of State for Justice. I say this lest there be any confusion about the two references in the Bill.

As I indicated at Second Reading, we have a number of concerns about the implications of these amendments. The Bill has been drafted precisely to ensure that the existing constitutional balance is protected. I will elaborate on that in light of some observations made by the noble and learned Lord, Lord Woolf, with reference to Amendment 28, which concerns the Minister’s power to direct the committee to include provision in the online procedure rules to give effect to a specified purpose.

I stress that this is not a novel power, nor would it apply only to the Online Procedure Rule Committee. The same power already features in the legislation which underpins the committees for the Civil Procedure Rules, Family Procedure Rules and Tribunal Procedure Rules. That is because Clause 8 reflects similar provisions in Section 3A of the Civil Procedure Act 1997, Section 79A of the Courts Act 2003 and Part 3 of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007. That power was one agreed by the then Lord Chancellor and Lord Chief Justice under the concordat of 2004 and given effect in the Constitutional Reform Act 2005. The safety valve within the 2005 Act is Section 5, which confers upon the Lord Chief Justice the statutory right to make a report to Parliament if he is concerned about an issue relating to the administration of justice. I emphasise that this is not a novelty. The provisions of the Bill were drafted to reflect the existing statutory underpinning of the other civil rules committees with regard to civil jurisdiction, family jurisdiction and tribunal procedure.

In turn, Amendments 29 and 30 seek to ensure that the Lord Chief Justice concurs before the Lord Chancellor can make regulations under Clause 9. Clause 9 requires consultation with both the Lord Chief Justice and the Senior President of Tribunals, the latter in the context of tribunal procedure. Again, we suggest that this is as it should be. It is anticipated that, as in the past, these regulations would be used to make minor revisions to legislation; for example, to regularise and modernise terminology to match that in the new rules and ensure that the rules operate as intended. In other words, they will be used to make operability amendments. It is in these circumstances that consultation is considered to be the appropriate approach.

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Moved by

[Lord Beecham]

15: Clause 4, page 4, line 16, leave out paragraph (c) and insert—
“(c) one of each of the following—(i) a barrister in England and Wales, and(ii) a solicitor of the Senior Courts of England and Wales, and(iii) a legal executive, and(iv) a magistrate of England and Walesappointed to the Committee by the Lord Chancellor.”

[Lord Beecham]

My Lords, this amendment would extend somewhat the involvement in the committee that the Lord Chancellor will appoint across the relevant professions and service. It seems sensible to reflect the breadth of the legal service and the legal community. It would not be hugely burdensome in numbers. It seems to make sense. I hope the Minister will feel able, if not today then subsequently, to accept that this would be desirable.

I do not think I need to elaborate. The amendments are clear enough about the intention and the numbers to be involved. I hope the Minister will at least look at this again and recognise that it is in the interests of the changes that are about to be made to accept these suggestions. I beg to move.

[Lord Judge]

I will make just one small comment. If the appointments of these additional people are in the hands of the Lord Chancellor, he will end up with a majority of six to two on the committee. If the amendments are to be pursued, I respectfully ask that the concurrence of the Lord Chief Justice to the appointment should be required.

[Lord Keen of Elie]

My Lords, it appears that we might avoid both potential problems if we retain the present membership of the proposed committee. Before I turn to the detail of the amendments, it may be helpful if I make some general remarks about the committee’s composition. We certainly support the need for a small, focused and agile committee responsible for making new court rules that are simple, tailored for the benefit of ordinary users and, therefore, understandable. In his final review of the civil justice system in 2016, Lord Justice Briggs as he then was anticipated—I accept—a very differently constituted committee of experts from across various disciplines reflecting users’ needs. A smaller committee allows the standing members to increase and adapt their membership quite easily every time they consider a different topic. That therefore allows them access to a greater spread of expertise and to ensure the rules are made by those who have an understanding of how they are most suited to the user.

The purpose of Amendment 15 from the noble Lord, Lord Beecham, is to add legally qualified members, or members with legal experience, to the committee. As I have indicated, we consider that there is considerable benefit in beginning with a small committee, but one where the membership and expertise can be adapted over time. We consider that adopting the amendment would create issues about who is appointing the membership of the committee and whether there was a disproportionate power of appointment between the Lord Chancellor and the Lord Chief Justice.

I remind noble Lords that the intention is that the online procedure will apply in the first instance to civil money claims up to the value of £25,000, but over time we of course want to widen the procedure’s scope so that it covers the civil procedures, potentially including family and tribunal proceedings. It would be difficult to see the value of insisting on an expanded legal membership at this stage without first gauging the overall value that could be addressed by bringing in specific experts in the area of specific proceedings being considered. In addition, as I said, Clause 6 would allow for the committee’s composition to be changed to incorporate particular experts or disciplines and particular areas of expertise if or when the committee came to address such issues as tribunal jurisdictions or some forms of family jurisdiction.

For similar reasons, we are not persuaded of the need for Amendments 16 and 17, which seek to add an additional member with IT expertise. Again, the argument is the same. Under Clause 6, the committee will have the ability to bring in additional expertise as and when it requires it, and that flexibility is seen as a considerable benefit.

In Amendment 18, the noble Lord, Lord Beecham, seeks to ensure a gender balance on the committee. Of course we support the wider aim of ensuring greater diversity among all senior appointments to public bodies but, to be truly effective, public bodies must bring together a mix of people with different skills, experience and backgrounds. The obligation with regard to appointment is always guided by the code of practice of the Office of the Commissioner for Public Appointments, which sets out the design principles and procedures for appointments with diversity in mind, including gender diversity. It is by these means that we can preserve accountability for diversity. That process is monitored by the Commissioner for Public Appointments, and is subject to a published report each year. We are certainly not complacent about the idea of gender representation at all levels on all committees, but we think it better that it is seen through the wider lens of the Equality Act, which protects a broader range of groups, not just gender. At this stage, we are not inclined to accept that there should be an express provision on gender balance.

Amendments 20 and 21 deal with the number of committee members required to agree the rule changes. Amendment 21 from the noble Lord, Lord Beecham, would increase the number needed from three to five, and that would perhaps be a consequence of an extended membership. Amendment 20 from the noble Lord, Lord Ponsonby, would require a simple majority with regard to matters, rather than just the current number of three. I can see that there may be an advantage in having some flexibility here, if we look forward to the point where the committee decides to exercise the powers under Clause 6 and extend the numbers in the committee to embrace further areas of expertise. I would like to give further consideration to that point in light of that, because it seems that underlying this there is a point that we should address before Report. With that, I invite noble Lords not to press their amendments at this stage.

[Lord Beecham]

Does the Minister accept the possibility that if there is not a requirement to reflect gender balance, there should at least be a requirement to report on it periodically, as part of the provision of the Bill?

[Lord Keen of Elie]

Respectfully, it appears that there is already statutory provision for just such a report, because the appointments will be monitored by the Commissioner for Public Appointments, who will make an annual report for that very reason.

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Moved by

[Lord Beecham]

19: Clause 6, page 7, line 17, leave out “negative” and insert “affirmative”

[Lord Beecham]

My Lords, this is a fairly simple amendment requiring there to be an affirmative resolution, rather than a negative one. We are perhaps overdone with negative procedures. I suggest that this is an important area which should be subject to the affirmative process instead of the negative one.

[Lord Keen of Elie]

My Lords, might I be permitted to respond with equal brevity to the noble Lord’s proposed amendment? Our concern is that this should be a small committee which has the ability pursuant to Clause 6, for example, to extend its membership to other areas of expertise, and that it should be able to move relatively swiftly to do that. That is why, in this area and others covered by amendments including Amendments 26 and 27, we embrace the negative procedure. We are concerned that, if we introduced the affirmative procedure, it would be necessary to take the matter through both Houses of Parliament, with the potential for significant delay from time to time. In fact, we simply want to effect new draft rules following consultation with the Lord Chief Justice. Regarding the consultation provisions as well, we suggest that the negative and not the affirmative procedure is appropriate here.

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Moved by

[Lord Beecham]

22: Clause 7, page 7, line 30, at end insert—
“(za) must be piloted by the Government in a period determined by the Online Procedure Rule Committee before they may be fully and permanently implemented,”

[Lord Beecham]

My Lords, there are two or three amendments in this group that look to the Government to pilot the processes embodied in the Bill. That seems a sensible way of dealing with these changes. Amendment 24 would require the Minister to publish a written statement on the progress and findings of the pilot scheme. These are major changes in our legal system, so it is necessary to look carefully at how they are working before deciding that they will remain part of the system. This is a major change, and it would help if the Government accepted the notion that progress will be reviewed and an opportunity given to consider how it is working. Further, the procedure should be an affirmative resolution.

[Lord Marks of Henley-on-Thames]

My Lords, our Amendments 31 to 33 in this group require a statutory review between three and four years from the date on which the Bill becomes law. They also require a report to Parliament from the appropriate Minister, prepared in consultation with the Lord Chief Justice and the Senior President of Tribunals, both of whom will be able to contribute independently to the report, should they wish to. The Minister’s answer to these suggestions to date has been that the Government will carry out a post-legislative review, so there is no need to incorporate a requirement for such a review into the Bill. Once again, I regret that we do not agree. Non-statutory promises have a nasty habit of being fulfilled well outside the time limits promised. Indeed, such reviews often seem to have as many delays as Crossrail. Statutory time limits, while not fool-proof, at least concentrate the minds of Ministers and officials. Furthermore, without further primary legislation, they do not bind future Governments. In any case, the requirement to review and report guarantees a certain thoroughness to the review and resulting report that might not otherwise have existed.

We regard as particularly important the requirement for the Government to consult the Lord Chief Justice and the Senior President of Tribunals in preparing the report and to have the opportunity to report to Parliament. That will guarantee that a judicial perspective is brought to bear on the review and formal report to Parliament. In this case, we regard the combination of judicial and political input as very important. Reviewing the operation of the legislation makes that combination important, as with making the changes and decisions that we discussed in the group of the amendments of the noble and learned Lord, Lord Judge. We also support the amendments in this group on further piloting these online procedures. Careful piloting and a staged introduction could avoid costly mistakes and improve the procedures as they are developed. Both providers and users will be able to see and report on what works and does not.

[Lord Keen of Elie]

I first turn to Amendments 22 to 24, tabled by the noble Lord, Lord Beecham, and address the issue that the rules should be piloted by the Online Procedure Rule Committee before they come into effect. I will then come on to Amendments 31 to 33, moved by the noble Lord, Lord Marks, and supported by the noble Lords, Lord Beith and Lord Pannick, and the noble and learned Lord, Lord Judge.

I assure the noble Lord, Lord Beecham, that when services are introduced, they are already subject to ongoing testing. HMCTS is rapidly testing and adapting new online services, based on user feedback and service data. That is important because it ensures flexibility and improvements in practice and procedures that enhance access to justice. Piloted online services cannot be rolled out to the public more widely without such rigorous independent assessment carried out by the Government Digital Service, and then confirmation that they are fit for purpose. In addition, some projects are also being more formally evaluated through their development by HMCTS itself.

Reference was made to a number of piloted measures in the existing digital portal for debt actions. The difficulty is that, if we accept measures of the kind proposed in these amendments, we will add a layer of bureaucracy to the rule-making process beyond current practice, thereby reducing the flexibility to respond to user needs and technological changes. The Bill permits the use of practice directions, which can support projects through development before formal rules are set out in statute, so one does not have to go to a formal set of rules immediately; one can simply have a practice direction that assists the piloting of particular projects.

I mentioned before the example of online civil money claims and the pilot that went live in March 2019, which is underpinned by practice directions that require the consent of the Master of the Rolls and the appropriate Minister. Such a project worked closely with the judicial sub-committee to develop the pilot. I emphasise that there is already a clear process in place through which such proposed rules are tested, piloted and reviewed. To that extent, we consider Amendment 22 unnecessary.

Amendment 23 would again limit the flexibility of the OPRC to make the small, minor changes required to respond quickly to changes in user needs or perhaps new technology. It would add time and consequently cost to the development of the online process. We do not consider it appropriate to go down that route.

Amendment 24 would require us to publish six-monthly reports. We regard that as simply unmanageable given the number of pilots across the services that we are in the course of transforming. Again, there is the issue of cost, so we are not persuaded of the need for such steps to be taken.

Amendments 31, 32 and 33 would place in the Bill a requirement for a formal review of the Act to which the Lord Chief Justice and Senior President of Tribunals were able to contribute independently. Clearly, reviewing legislation which has been passed by this House is of great importance. That is precisely why the Government already require departments to carry out post-legislative scrutiny of all Acts within three to five years after Royal Assent. We therefore consider this amendment unnecessary because post-legislative scrutiny of this legislation will be conducted—I emphasise, will be conducted—within that timescale.

Regarding the reference to the Lord Chief Justice and Senior President of Tribunals, of course, their views are incredibly important and are taken seriously. There would be no question of us laying a report on this or other courts legislation without taking account of their opinions. Again, we consider the amendments unnecessary, understanding the importance of what underpins and has prompted them. I hope that, with these assurances, noble Lords will accept that the amendments are unnecessary and I invite them not to press them.

[Lord Beecham]

My Lords, having listened to the Minister, I am happy to withdraw the amendment.

Amendment 22 withdrawn.