Courts and Tribunals (Online Procedure) Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

Tuesday 14th May 2019 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

I add my welcome to the Bill. I shall be very brief, since everyone else has welcomed it so warmly, but that is not to say that I am not extremely enthusiastic about it. I am very glad that the Ministry of Justice has found the opportunity of bringing it in as a government measure and for the work that has been done. A number of concerns were raised during the course of this debate, which I think must be addressed, but I will offer a little explanation, if the House will bear with me, as to why the Bill is so necessary.

The primary purpose of the Bill is to reinforce access to justice at an affordable price. What has happened, unfortunately, over the last two years is that, because the Treasury has not been prepared to spend money on justice, fees have risen and risen and risen, while the costs have not gone down. Therefore, one very much hopes that this Bill will bring down the costs of justice, particularly those for small claims, for ordinary citizens and SMEs.

The only way to do this is to take advantage of digitalisation. If you go into the Crown Court these days, you will see virtually no paper. On the other hand, if you were to go to the county court, you would probably find that little had changed—except for the advent of the telephone and some computers—to the volume of paper that would have existed in 1846, when the county courts were established. Therefore, there is a most urgent need to digitalise the process and procedures of the court.

Thirdly, it is quite clear that you can only digitalise and make a fair system if you have effective procedure rules. The proof of that pudding is in the work that my noble and learned predecessor did in the Criminal Procedure Rule Committee, which revolutionised the way in which criminal procedure has been dealt with. It seems to me that you can only look at providing justice more cheaply, more efficiently and more effectively if you can conduct an analysis of what procedural rules are needed. Before this idea was brought forward, an analysis was done of various common forms of procedure in civil, family and, if I may say so, administrative or tribunal justice. Unfortunately, over the centuries lawyers have always had the habit of complicating their own particular area and trying to show how unique it is; hence, you have many different names for the processes by which claims are begun, and you have different names for the people bringing claims. In this House, one again finds names that are not at first sight familiar. An analysis has been carried out, and it is right to say that what underpins this proposal is that, in essence, the basic procedure of all forms of litigation is broadly the same, and in the age of digitalisation that is a very important concept.

I do not know how many will recall this, but in the court system prior to the introduction of technology about seven or eight years ago, there were tens of different systems: one for the probate system, one for certain types of civil claim, one for the Admiralty, and so on. One consequence of that was that, when you tried to modernise it, you had the immense expense of trying to modernise so many different systems. The purpose of the modernisation programme—and one can never be sure when the Treasury will again provide money necessary to modernise the system—is to have something that can be modernised at little cost, so the whole purpose of the modernisation is to try to devise, for smaller and less complicated cases, a single procedural system that can be supported by a single digital system. Nothing else makes any sense, and nothing else is in truth affordable. No one would wish for more money for justice than I, but realism shows that there are many other priorities. So what lies behind this Bill is actually trying to harness modern technology to try to ensure that access to justice is again affordable and that the money that the Treasury will not give is found by making things work in a better and more effective way. Those are the principles that underlie the Bill.

It seems to me that two things are of fundamental importance going forward. First, it is obviously right that those who do not find using digital equipment easy must be entitled to have access to justice in exactly the same way as everyone else—to do anything else would be wrong. Secondly, I do not believe it has ever been suggested that, if proceedings were started using digital systems, and the making of the claim, the provision of the defence and maybe the making of some procedural directions were all done using online systems, a judge would not have the discretion to say, “This looked very simple, but it’s not—I must have a hearing”. I do not think it has ever been in anyone’s mind that, ultimately, you would take away the judge’s discretion. These points are obviously of concern and must be addressed. However, I hope that a way can be found of not putting too much in the Bill, because, as technology advances at a pace that is phenomenal and which no one can predict, having restrictions in the Bill may prove to be a very difficult matter in the future.

That is the background, but I will make one or two general observations. First, I entirely support what my predecessor as Lord Chief Justice, the noble and learned Lord, Lord Judge, said, about the clauses in the Bill—those must be addressed. The Lord Chief Justice has, with the Lord Chancellor, an important responsibility, and as they have a partnership with regard to the running of the courts service, it seems that they ought to have a partnership in regard to the making of these rules, and they ought to agree when legislation should be changed.

Secondly, I draw attention to one provision of the Bill where a great deal more needs to be done. That relates to Clause 1(3)(b), which is the requirement,

“that the rules are both simple and simply expressed”.

Earlier this year, Justice—I declare an interest as a member of its council—produced a report under the chairmanship of Sir Nicholas Blake on Understanding Courts. It made 41 recommendations, most of which were directed at enabling lay people to be able to understand the court processes and the court having a duty to understand the needs of lay users. The Bill ought to go a long way to addressing that.

One of the difficulties that is clear is that rules take effect as subordinate legislation. Certainly, when I was chairman of the Criminal Procedure Rule Committee, having succeeded the noble and learned Lord, Lord Judge, we had one or two interesting discussions with those responsible for the scrutiny of legislation—they are, rightly, particular. However, if rules are to be written in a way that the ordinary lay person can understand them, that is quite a departure, although a very welcome one, from the way in which we have traditionally drafted matters. You might say, “Let the rules be drafted in language that lawyers are comfortable with, and we can provide an explanatory booklet”. That would be to defeat what I believe is essential, which is making law accessible, and there is no reason therefore why the rules should not be drafted in language that the lay person can understand without the need to go to a lawyer. I very much hope that the Government will consider amending the Bill to make clear that “simple and simply expressed” is not “simple and simply expressed for a lawyer”, which is one thing, or “simple and simply expressed for a lay man”, which, unfortunately, is quite another.

Secondly, it seems to me in this connection that it is important that the Government consider making it clear in the Bill that assistance will be provided not only for those who find it difficult to use digital equipment but for those who wish to try to understand more complicated issues, by having access to advice online. I therefore hope that consideration can be given to imposing on the committee the duty to ensure that its rules provide for proper assistance to be given.

I warmly commend the Bill, but I recognise that all the concerns raised must be addressed if it is to go through.