Courts and Tribunals (Online Procedure) Bill [HL]

Lord Marks of Henley-on-Thames Excerpts

Tuesday 14th May 2019 Lords Chamber

[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.