Courts and Tribunals (Online Procedure) Bill [HL]

Earl of Listowel Excerpts

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

[Lord Mackay of Clashfern (Con)]

My Lords, the Government’s view was expressed at Second Reading, but Amendment 1 seems to strike at the heart of what is required. Clause 1 states,

“may authorise or require the parties”.

to use electronic means at hearings. That suggests the possibility of compulsion that would not exclude any section of the community. The amendment I find slightly difficult is Amendment 3, which states,

“may be filed by electronic means or on paper or a combination of both at the choice of the party”.

I would have thought that it should be one thing or the other. I imagine that it might cause confusion if you have an electronic bit and then a bit on paper stuck in, unless there is a clear way of showing in the electronic bit that there is another bit to follow. It is that part of the amendment that I find slightly difficult.

[The Earl of Listowel (CB)]

My Lords, I am reminded that these provisions will apply to family law procedures. Of course, it may improve the resolution of family issues, which will benefit the children involved, but there is a concern that it may make resolution more difficult and thus adversely affect the children in those families. Has the family test been applied to the Bill? I do not see that in the accompanying notes and perhaps it is not appropriate to apply the family test to it. I would be grateful if the Minister could tell me whether the family test has been applied.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I will speak to Amendments 1, 3, 4, 6, 10 and 11, which relate to the operation of the online procedure and how we can ensure that people using it are not disadvantaged. I intend to turn first to Amendment 3, which covers whether a user can choose between digital and paper channels. Then I will move on to Amendments 1, 4, 6, 10 and 11, pertaining to the online procedure and the matter of choice.

Amendment 3 suggests that claimants and respondents should have the choice of whether to use paper or digital channels when engaged in the simplified online procedure. I can confirm that the Government agree with this point, and indeed there is provision for this already. Essentially, where the online procedure comes into place, it will be possible to access it either by way of the digital portal or by way of a written document of claim. Other written documents may also be used when employing the simplified online procedure. The intention, which already applies to some of the digital procedures we have in place for small debt, is that the document will be scanned into the system and will therefore be part of the process. The idea is to ensure that parties are not excluded from the simplified procedure that will be brought in under this online procedure simply because they feel unable to employ, or are incapable of employing, the digital process itself. However, there is a distinction between that and the situation in which, when dealing with debt claims of under £25,000 for example, a claimant or any other party would be allowed to opt either for the simplified procedure that will be promulgated under the online procedure or to have recourse to the existing Civil Procedure Rules and the more complex procedure that pertains there. It is not intended under the Bill that claimants should have an option between the simplified procedure and the more complex procedure. I shall come on to develop that a little more in a moment.

Perhaps I may take this opportunity to confirm that we have no plans to remove the availability of paper channels for citizens under the remit of the Online Procedure Rule Committee. Of course, it is our intention to create a digital service that will be easy to access and use—indeed, so easy to access and use that it becomes the default choice for the majority of users. We recognise, however, that not everyone will be able to use it, or wish to proceed with that digital choice without support. For that reason, a paper route will remain open.

We want to be clear that users can expect an equity of service, regardless of whether they proceed with a digital approach or a written claim. Where different parties choose different channels, we will seamlessly join them together by means of a scanning and printing service, so users who want to send and receive papers will still have that choice—they will not need to resort to the online portal. To that extent, I offer my assurance that paper channels are still available and will be available under the Online Procedure Rules. The Bill will do nothing to remove them.

--- Later in debate ---

[Lord Keen of Elie]

It is to ensure that where, for example, there are debt actions below a certain level—let us take a figure of £25,000—they must be initiated by way of the Online Procedure Rules, the simplified procedural rules, rather than by way of the existing Civil Procedure Rules. It is for that purpose that the paragraph is there. In other words, it will not be open to a party who wants to make a small debt claim to decide they want to use the more complex and potentially more expensive Civil Procedure Rules as distinct from the Online Procedure Rules and the simplified procedure that goes with them.

I shall address Amendments 10 and 11, tabled by the noble Lord, Lord Beecham, alongside Amendment 4, which I believe was tabled by the noble Lords, Lord Marks and Lord Beith, and the noble and learned Lord, Lord Judge, as well as Amendments 1 and 6, tabled by the noble Lord, Lord Ponsonby.

Amendments 1 and 6 concern the continued availability of physical proceedings rather than online proceedings. Amendment 4 seeks to allow the parties to proceedings to choose whether to engage with the online procedure or the current procedural rules. This is a point that I just sought to touch upon. Amendments 10 and 11 are intended to deal with those cases where one party wishes to leave the online procedure, but another does not.

This is not what the Bill is intended to achieve. The Bill provides the flexibility for a case to progress via the online rules, or via the traditional rules of the civil procedure if necessary. Where a case is so complex that that the online procedure is clearly inappropriate, it will be for the judge to determine, and he will have the discretion to do so, whether a case should remain within the online procedure or should proceed by way of the traditional civil rules instead. Where both parties make a representation that the case should not proceed by way of the online procedure, then of course the court will hear those representations and take them into account, but ultimately it will be for the court to decide the appropriate procedure for the disposal of any claim. That is as it should be and is as it is with regard to our existing civil procedures. Ultimately, it is for the court to make these procedural decisions, not for the parties to dictate them, but of course their views will be taken into account. Equally, where parties, or one party, are of the view that an oral hearing will be required in circumstances where it might not ordinarily have been anticipated, it will be open to that party, or the parties if they are agreed, to make those representations to the court in order that the court can make the final decision about the appropriate procedure to be employed. Again, that is as it should be. It is ultimately for the court to decide the most appropriate process and procedure for the disposal of individual claims.

Under Amendment 4, users would in effect have the right to choose whether to use the Online Procedure Rules or the traditional rules. Similar points are made in the other amendments. We do not consider that that is the appropriate way to proceed. Users will have sufficient control over proceedings to ensure that they have access to justice, which will not be limited in any way, and certainly not in a way that would intrude upon any rights under Article 6 of the convention.

The online procedure system is simply designed to offer the ordinary user an easier way to access justice, while giving parties the choice to remain in a position to make paper applications to the online simplified procedure rather than engage with the digital portal. I reassure noble Lords that we are not seeking to impinge in any way upon the parties’ right of access to justice, but ultimately we must leave it to the court to determine procedural questions brought before it, albeit that it will make those decisions subject to the representations by or on behalf of the parties to the proceedings.

As I mentioned in passing and in response to the noble Lord, Lord Beith, where a physical hearing arises, it will be for the parties to make representations. Ultimately, it will be for the court to determine on the material before it whether such a physical, oral hearing is required for the disposal of a case. That, I suggest, is as it should be.

I hope that that also reassures the noble Lord, Lord Ponsonby, with regard to judicial discretion. That, ultimately, is paramount, and nothing in the Bill or that we would anticipate in the regulations to be made pursuant to the powers under the Bill would undermine that judicial discretion, which ultimately has be exercised in the interests of justice and for the benefit of the parties. With that, I hope that the noble Lord will consider whether at this stage it is appropriate to withdraw the amendment.

[The Earl of Listowel]

My Lords, before that happens, I express my apologies for not being able to take part at Second Reading. I thank the Minister for asking his office to contact me and I am sorry that I delayed replying until Friday. I just want to comment on the family test. This was introduced in 2014 to be applied to Bills and involved a number of questions such as, “What kind of impact might the policy have on family formation?” and “What kind of impact might it have on stability in the family?” Although the test is not mandatory, this seems an appropriate Bill to have had it applied to, and I simply express the wish that in the future it might be applied to Bills similar to this one.

[Lord Mackay of Clashfern]

My Lords, I have some difficulty with Amendment 1 and the answer that my noble and learned friend has given. As I understand it, the amendment deals with rules. It is not judicial discretion but rules that may require the parties to participate in the hearing by means of electronic devices. Therefore, it is not a question of the judge in charge of the case making that decision; the preliminary rules will require it, and the judge will be bound by that. He will say that he is sorry to whoever comes along with a bit of paper and explain that they are not able to do that because the rules dictate that it has to be done by electronic means, so they will have to get themselves a computer.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, Amendments 5 and 13 in this group are in my name and those of my noble friend Lord Beith, the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick. Our amendments would incorporate in the Bill a requirement that the Government provide necessary assistance for parties or potential parties to online proceedings, both claimants and defendants, who need help navigating them.

At Second Reading, the Minister promised:

“All our online services will be accompanied by appropriate and robust safeguards to protect and support users and to ensure that access to justice is maintained. In pursuing this approach, we recognise that there will be people who will need help accessing a new digital system”.—[Official Report, 14/5/19; col. 1506.]


He promised that the Government would put in place a comprehensive programme of support, which he described as “assisted digital”, which would include help for court users by telephone, online or by other electronic means or face to face. I pointed out in that debate that the Briggs review had stressed the importance of ensuring that access to justice was not compromised by the introduction of Online Procedure Rules. The Briggs report described the success of the online court as “critically dependent” on providing digital assistance for those who could not cope with computerised procedures.

The Constitution Committee, under the section of its report headed “Access to Justice”, argued eloquently that, with 5.3 million adults in the UK who could be characterised as “internet non-users” and with 29% of people over 65 having “zero digital skills”, not including those with limited digital skills or limited access to computers or broadband, the Bill makes no provision to safeguard access to justice in the way promised by the Minister at Second Reading. The committee recommended that,

“the Bill places a duty on the Lord Chancellor to ensure that adequate provision is made to enable access to online proceedings for those with limited digital means, digital literacy, or general literacy”.

We agree. At Second Reading, not only the noble and learned Lord, Lord Judge, but the noble and learned Lords, Lord Thomas and Lord Mackay of Clashfern, and the noble Lord, Lord Faulks, called for a statutory commitment to digital assistance.

Once again in this group of amendments, I reject the assurance that it is safe to rely on an extra statutory statement of intention by the Government. That is especially true on a matter of such importance to the success of this reform in terms both of access to justice and of the rule of law. This commitment could and should be clearly expressed in the Bill in a way that would make it much more difficult for future Governments to resile from it. I make no apology for putting forward a similar point in relation to designated assistance to that which I made in relation to filing documents on paper.

Our amendments are comprehensive but flexible. Amendment 5 would introduce the general duty to provide assistance to a party or potential party to proceedings under Online Procedure Rules in accordance with the detailed provisions set out in Amendment 13. That amendment would give the Government flexibility on who should provide assistance and how. Designated assistance could be provided either directly through HM Courts & Tribunals Service, under contract with outside organisations, or through the voluntary sector. It would be for the Minister to determine what assistance could be provided by telephone, what by electronic means and what in person or by other reasonable means.

Our amendments are concerned with outcomes rather than structure; different providers might provide assistance in different but complimentary ways. However, in determining what assistance must be provided, and by what means, the appropriate Minister is to be subject to an overriding requirement that he or she should consider that assistance sufficient to enable the party receiving it to have a reasonable understanding of the nature of the proceedings, of the procedure under the Online Procedure Rules, and of how to access that procedure. The assistance will have to cover the completion of online forms—easy for lawyers and officials, perhaps, but often a nightmare for lay litigants. It will also have to cover the kinds of evidence that may be necessary to support or establish a claim or defence. Designated assistance should also be available about the requirements and meaning of the Online Procedure Rules. The requirement for assistance on the kinds of evidence required to establish a litigant’s case is particularly important and will save parties, and ultimately the courts, considerable time and trouble. Far too often, proceedings fail or are delayed because litigants in person are unaware of the kinds of evidence they are likely to need to establish their cases. Assistance with this aspect at an early stage of online proceedings may do much to help reduce costs, delays and frustration.

Those who may say that this is a step too far in favour of the courts service providing legal advice are missing the point of these reforms. The days are over when the court office tells litigants to go and seek the advice of a solicitor on generic issues such as this, for precisely the reasons expressed by the noble and learned Lord, Lord Thomas, in relation to hiring expensive lawyers. If online proceedings are to work well and improve rather than stifle access to justice, they have to be targeted on enabling litigants without lawyers to use the courts successfully. Perhaps at this stage I should declare the same interest as the noble Lord, Lord Pannick, in relation to my being a lawyer in offline courts. That is the point of these reforms. It will be achieved only if parties are provided with the kind of help our amendments would require.

An important further point is that for litigants whose first language is not English and who have no familiarity with English, interpretation or translation should be available to enable them to understand proceedings in a language familiar to them. Far too often, the need for lawyers arises even in relatively simple cases where intelligent and capable litigants whose command of English is limited are obliged to instruct lawyers simply because they receive no help in understanding proceedings in their own languages. I beg to move.

[The Earl of Listowel]

My Lords, I support this amendment. I am a patron of the charity Best Beginnings, which has produced an application that can be downloaded from the NHS store for mothers around the births of their children. We are finding that it is tremendously effective in reaching black and minority-ethnic mothers in particular, and mothers on the lowest incomes. This has been developed with all the royal colleges, and it has taken time, money and a real strong effort from the charity over many years to develop such a good product that reaches out particularly to families for whom English is not the first language. One of the key selling points of this app is the videos attached to it. Mothers will see people like themselves talking about what it was like to experience depression or how to breastfeed and communicate with your infant. They can identify with those parents.

There is a tremendous opportunity here to make something which is really effective and helps litigants in person and people whose first language is not English to understand how to approach these matters. The noble Lord’s amendments are very important to ensure that there is a commitment up front to producing the best possible means for families and others to engage with the digital technology available and to get the best outcomes for them and their families.

Of course, with a product such as this—I am not pushing this one specifically—there are back-end analytics through which one can tell in an anonymous way exactly how often it is used and who uses it, so there would be plenty of feedback on how well it is working. I hope that the Minister can give a reassuring answer to the noble Lord.