Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Keen of Elie and Lord Thomas of Cwmgiedd

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

[Lord Keen of Elie]

I quite see that this House might wish to see it in primary legislation, but the position is this: a committee will be formed to put forward appropriate rules and regulations for the online procedure, under the essential supervision not only of the Executive but of the judiciary. There may come a point, at some unforeseeable time in the future, where the judiciary is of the view that it is no longer necessary to employ paper as a form of application or entry into the judicial process. I do not anticipate that happening—there is nothing here to suggest it will happen—and I do not see that there is a requirement for such a guarantee in the form of primary legislation. We intend to form an Online Procedure Rule Committee that will be well qualified to determine the appropriate routes into the online procedure for all parties concerned, including those perhaps not digitally competent or confident. That remains the position.

[Lord Thomas of Cwmgiedd (CB)]

Perhaps I may press the Minister on one point. It is easy to see that there is a distinction between an online procedure and the way the court works. If it was made clear that the online procedure is largely geared to ensuring that the systems that lie behind it operate efficiently across the system but that, in using that procedure, if people did not want to go online the court would undertake to scan the documents in—if that distinction was made—would the Minister accept that what really is needed, because these amendments do not grapple with the problem, is a guarantee to the litigant that he can go to court, hand in a piece of paper and it will be scanned into the system? That is all.

If that is the effect of these amendments—and it is limited to that—would that not achieve everything and give an opportunity to increase access to justice? In the current system access to justice is a figment of the imagination, but the use of an online procedure would enable this to happen. Will the Minister look at this issue again in the light of my suggestion to him?

[Lord Keen of Elie]

I hear what the noble and learned Lord has said and I will take account of those observations in going forward to the next stage of the Bill. However, at present it is not my intention to accept any of the amendments so far laid in respect of this matter. If there is a way through by which we can underline the right of a party to make an application on paper to the relevant online procedure once it is up and running, that would essentially achieve the objective that we have and I believe the House has. However, I do not accept that it will be achieved by means of the present amendments.

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[Lord Thomas of Cwmgiedd]

With the utmost respect to my predecessor, it would be usual for a magistrate to be appointed by the Lord Chief Justice rather than the Lord Chancellor. That would slightly affect the majority, but otherwise I agree with the points made.

[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.

Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019

Debate between Lord Keen of Elie and Lord Thomas of Cwmgiedd

Monday 25th March 2019 Grand Committee

[Lord Thomas of Cwmgiedd]

On the Minister’s last point, the ability of a court to fine someone who is here knowing that it will be enforced of course means that the court considers that a financial penalty might be more desirable than the imposition of a short term of imprisonment. Bearing in mind the desire to get rid of or reduce the number of short terms in prison, has anyone looked at the impact that imposing fines that we know will not be enforced will have on the policy of trying to reduce short terms of imprisonment?

[Lord Keen of Elie]

I do not believe that any distinct analysis has been made of that issue, but the noble and learned Lord will be well aware that the problem of recovering financial penalties is hardly limited to people who have gone to Poland or the Netherlands. There is a far more fundamental problem with recovering financial penalties within the United Kingdom. That is much greater in its extent and impact on the sentencing policies of the courts than that of the few people who move abroad after a financial penalty has been imposed and not paid. Of course we are looking at the whole area of sentencing policy with regard to the issue of short-term sentences, and we can only encourage the courts to move away from them in circumstances where they have confidence in the imposition of non-custodial sentences, which of course include community orders and financial orders. I would suggest that this is a relatively small aspect of a bigger problem, but I acknowledge the bigger problem. It is one that requires to be analysed fully as we take forward our sentencing policy.

That takes me neatly or otherwise on to the final point, which is the question of taking into account prior convictions. Just to be clear: this regulation addresses the question of what the court does once it has the information and the data. Indeed, the question of data transfer is, I am pleased to say, a matter for Home Office Ministers.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL]

Debate between Lord Keen of Elie and Lord Thomas of Cwmgiedd

Report stage (Hansard): House of Lords
Tuesday 16th October 2018 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I support what the Government seek to do and urge a substantial degree of caution in respect of the proposal put forward by the noble Baroness. The Criminal Procedure Rule Committee and the other ones—the civil, family and tribunals committees—are independent bodies. They look at and scrutinise everything with a great deal of care. They are representative of all interests in litigation. For example, the Criminal Procedure Rule Committee has a number of defence lawyers and people from other aspects of the criminal justice system who proceed with great care to look at what is before them. It was suggested that they are unaccountable. I say on this amendment that the provisions for having to consider the right of reconsideration and then reporting that to the Lord Chancellor informing him of the decision and reasons is a traditional form of explanatory accountability.

Secondly, we ought to take into account the fact that, in our system of justice, the operation of the criminal, civil, tribunals and family procedures rule committees has enabled us far more than any other state to keep our rules up to date. I urge the greatest caution in trying to put into primary legislation anything that restricts in this way the powers of the rule committees. For example, there are areas where it has proved difficult to modernise and to reform the system—for example, for extradition appeals, where provisions put into primary legislation made the system almost unworkable. Certainly what was in the primary legislation in relation to videolinks and the protection of vulnerable witnesses proved a great obstacle.

I therefore urge your Lordships to consider that this amendment, as my friend the noble Lord, Lord Marks, said, provides the right balance. It gives discretion to a body that knows and has a lot of experience, but it contains that degree of explanatory accountability that will make sure that it does not do anything—even if we were to worry that it might—that goes outside a proper and just delegation. It is always difficult to think of issues on the spur of the moment but, for example, one of the areas that troubles courts quite often is the short time limits if you have a recalcitrant party. It might be that, in very restricted circumstances, a rule committee would say, “This is the kind of area where a reconsideration is not necessary when a final extension has been given”. But the important point is that I urge your Lordships to trust the rule committees, particularly now that there is this additional safeguard.

[Lord Keen of Elie]

I am obliged to all noble Lords for their contributions. The Government’s position remains that the independent procedure rule committees, comprised of experts and practitioners from each jurisdiction, are best placed to decide whether a right of reconsideration is needed for each judicial function that staff are permitted to exercise. Similarly, they are best placed to determine what such a right should look like. In that context, I gratefully adopt the observations of the noble and learned Lord, Lord Thomas, the former Lord Chief Justice, and of the noble Lord, Lord Marks.

The approach taken in Amendments 8 and 11, tabled by the noble Baroness, Lady Chakrabarti, would impose a blanket right of reconsideration across all jurisdictions, with arbitrary deadlines. It simply would not work in practice. For example, the amendments would allow a person 14 days to apply for reconsideration. Why would a 14-day limit apply across all jurisdictions and for every judicial function that authorised persons are permitted to exercise, some of which are entirely straightforward case management and preparation duties? Indeed, the noble and learned Lord, Lord Thomas, referred to time limits. What happens if you have a request to adjourn a hearing due to take place the following day? If it is refused, you then have 14 days for reconsideration. In other words, it would automatically be successful because of this blanket provision. That is just one of many examples.

Each jurisdiction has its own ways of working and needs mechanisms for reviewing decisions that can respond to this. For example, the rule committees in the civil and tribunals jurisdictions have already built in a specific right to judicial reconsideration of decisions made by authorised staff. The magistrates’ courts and the family court have their own existing mechanisms for reviewing various decisions. These amendments, as proposed by the noble Baroness, would cut across all those existing provisions.

I mentioned an example in response to a query from the noble Lord, Lord Pannick. The magistrates’ courts issue something in excess of 2 million local authority summonses every year. If there were a right to reconsideration in every one of those cases, where would we begin and end with regard to the administration of such applications? Indeed, in the magistrates’ courts, there are already a number of ways for a defendant to challenge a case in which a summons has been issued. He or she can make an initial argument to the court hearing the case that the summons should not have been issued. You can contest the substantive application made by the local authority. There is even the possibility of judicial review. The matter is already covered.

Creating a mandatory right to apply for judicial reconsideration of the decision is not only unnecessary but would also be burdensome and ineffective. It is in these circumstances that I reiterate that it is appropriate, as other noble Lords have observed, that these matters should remain with the independent procedure rule committees and that I again commend Amendments 7, 9, 10 and 13. I invite the noble Baroness, Lady Chakrabarti, not to press her amendments in this group. I cannot commit to reflecting any further between now and Third Reading on these matters, so if the noble Baroness wishes to test the opinion of the House, she should do so now.