Courts and Tribunals (Online Procedure) Bill [HL]

Lord Beith Excerpts

Tuesday 14th May 2019 Lords Chamber

[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.