Judicial Review and Courts Bill (Second sitting)

Antony Higginbotham Excerpts

Committee stage
Tuesday 2nd November 2021 Public Bill Committees

[The Chair]

Richard, do you wish to respond to this question?

Richard Leiper: No thank you.

[Antony Higginbotham (Burnley) (Con)]

Q Mr Leiper, these questions are probably for you. One of the things that the Bill does is introduce an online procedure rule committee. I believe you sat on a shadow version of such a committee. Can you give us your insight into what kind of efficiencies this might bring and where you think the early focus of that committee should be in its first couple of months after inception?

Richard Leiper: One of the things that people need to appreciate about the conception here is how broadly it could be applied. It is intended or, at least, it empowers there to be rules which cross employment tribunals, first-tier tribunals, all civil proceedings and all family proceedings, and it would need to be dealt with on a very narrow incremental basis.

I see two particular issues. First, there is not an existing infrastructure for an online process. Essentially, this rule committee would be laying rules which could be seen to tread on the toes of the existing rule committees for civil procedure, for family law, for employment tribunals and it would set down rules which somehow put in place the process which, for example, would tread on the toes of an employment tribunal—so, how a claim was initiated.

The online rule committee would be setting a rule which provided a wholly new way of a process being initiated. That would need the buy-in and support of the tribunal process, because there is not, as yet, the underlying infrastructure. That is in contrast, for example, to the civil procedure rule committee, where the entire infrastructure of the civil court process is there, and the judges know where they fit in and what they are supposed to be doing. Here, this has judges being told that there is a new process which has an online procedure, and they will not have a clue how that is supposed to operate.

If you start broadening it, it becomes cross-jurisdictional. For example, someone who wants to bring a claim against their employer that involves a breach of contract claim and an unfair dismissal claim, but one of which would normally go to a civil court and one to an employment tribunal. How can that be pulled together? Who would be the judge that dealt with it, and how would the procedure move forward? These are enormously difficult questions, which brings me to a second point.

The current composition of the committee is a total of 6 people. That is in contrast to the civil procedure rule committee, which has 18 members. The family procedure rule committee has 18 members. To me, given the potential breadth of the rule that could be set by this committee, having one senior judge, a couple of other judges, one practitioner, one layperson and one computer person is simply not enough. That is partly because the scope for the procedures would be trespassing on areas which it is likely that no member of the committee would have any knowledge of.

For example, I have no knowledge at all about family court proceedings—how they begin, how they proceed, or what the interests of the various parties would be. Yet, if there is just one practitioner, who could be a barrister, a solicitor or a legal executive—each of whom have different perspectives on how the system operates, how it impacts on clients, other parties and so forth—there will not be the wealth of knowledge, even with consultation with people who do know, to enable effective online rules. The composition of the committee is my single greatest concern.

[Antony Higginbotham]

Q Can I just follow up? I understand what you are saying about treading on toes, but it is not also the case that we must ensure our ways of working evolve as technology evolves. To your point, that is why it is important, as the committee establishes itself, that it does so in a careful and considered way—not to step on toes, but to take the best of new ways of working and carry the profession with it.

Richard Leiper: I could not agree with that more. I think it is exactly the right concept to have. It will help litigants. There is provision so that those who do not have the means of doing things online would have the alternative of doing so through more traditional mechanisms, but I completely agree with the process because it should simplify the system to enable people to access justice more freely.

I could not agree more with the underlying concept. It is more a matter of ensuring that the infrastructure is in place to carry that through, so that it can become effective. That has two parts. First, it means having a properly composed committee with the expertise that can be brought to it and, secondly, having the infrastructure behind it so that it is not just a rule committee setting what needs to happen on high, but it gets the buy-in of everyone who will implement it and of how it will operate.

[Alex Cunningham (Stockton North) (Lab)]

Q Mr Leiper, you talked about the size of the committee being inadequate at six members. What is your opinion about how we build that particular committee? Are you suggesting 16 members like other committees or do you think there is a middle ground? Who should the committee comprise?

Richard Leiper: I am not one for large committees, which can be counterproductive, but we are talking about an enormous amount of work that will need to be undertaken across a wide range of practice areas. I suggest that the composition was akin to that of the civil procedure rule committee and of family law, so having more judges and more practitioners. The committee has only one person who can bring the knowledge of the lay-advice sector, whereas I think both the civil procedure rule committee and the family procedure rule committee each have two lay members. It needs a wider composition akin to those of the existing rule committees—which seem to operate perfectly successfully—where people are able to bring together the knowledge and direction of what they want to achieve through the online rule committee, but also bring particular practice or individual knowledge to the development of those rules.