Judicial Review and Courts Bill (Eighth sitting)

John Hayes Excerpts

Committee stage
Tuesday 16th November 2021 Public Bill Committees

[The Parliamentary Under-Secretary of State for Justice (James Cartlidge)]

It is good to have you back in the Chair, Sir Mark. I hope that we will make diligent progress this afternoon.

As the hon. Member for Stockton North said, both amendments would provide options for a person to participate in a hearing via non-electronic means. Amendment 59 would give those participating the option, while amendment 90 would require someone who had a physical or mental condition preventing them from understanding or effectively participating in online proceedings to participate in a hearing via non-electronic means.

The online procedure rule committee will make simple and consistent rules that provide simple processes that can be followed by the average court user. We have seen an increase in online proceedings in response to the pandemic—I will say more on that when speaking to clause stand part. Her Majesty’s Courts and Tribunals Service is moving towards digital services being the default, but we absolutely understand that not everyone will choose to participate in a hearing by electronic means.

I will emphasise specific clauses. In many ways, it is a disappointment that my right hon. Friend the Member for South Holland and The Deepings is not here, because he would have been greatly reassured by the clauses. He has obviously struggled to get here for an in-person sitting—perhaps we could have held it online, but unfortunately that option is not available at the minute, which is a shame for my right hon. Friend. I have no doubt that he has a good reason for being absent.

Clause 18(6) states:

“Where Online Procedure Rules require a person—

(a) to initiate, conduct or progress proceedings by electronic means, or

(b) to participate in proceedings, other than a hearing, by electronic means,

Online Procedure Rules must also provide that, if the person is not legally represented, the person may instead choose to do so by non-electronic means.”

The key thing is that the rules reply entirely to civil cases—civil, family and tribunals. Those are the jurisdictions to which those particular rules apply. It is not obvious how there would be a situation where someone who had legal representation would not be able to participate online given that practitioners should, for obvious reasons, be able to participate online.

Furthermore, subsection (7) states:

“Where Online Procedure Rules require a person to participate in a hearing by electronic means, Online Procedure Rules must also provide that a court or tribunal may, on an application or of its own initiative, order or otherwise direct that person, or any other person, to participate by non-electronic means.”

Well—[Interruption.] My right hon. Friend has duly arrived, and I say to him that one of the downsides of physical sittings and in-person hearings is that one is subject to the whims of chronological events, to put it bluntly, and unfortunately he has missed a great bit of the Bill, which I read out not just for him but primarily because it is relevant to the amendments from the hon. Member for Stockton North, the Opposition spokesperson. The Bill shows that where one is represented, one would be able to request a physical or in-person hearing.

There could be a number of reasons why someone would chose to participate in a hearing by a means other than electronic. Her Majesty’s Courts and Tribunals Service provides a support service over the phone as well as more intensive face-to-face support for those who might require it, such as vulnerable users who might not otherwise be able to participate in proceedings effectively or those who are digitally excluded. HMCTS has also awarded a national contract to deliver positive and practical solutions to support users and break down the barrier of digital exclusion across civil, family and tribunal jurisdictions. Through this contract, support will be available in person and remotely through a network of delivery partners who are experienced in supporting users of justice services. As per the specification, the services will be delivered across different channels to ensure that all those who require them can access them. Those channels would include local-centre support in more than 300 physical sites, over-the-phone support, remote video appointments with those who have access but need support in navigating the service, and in-home face-to-face support with necessary equipment. HMCTS has considered forms of support that can be provided to the user throughout their online proceedings.

I recently visited Isleworth Crown court where the citizens advice bureau was actively involved in providing services to witnesses. It is conceivable that the physical roll-out of these support services could be provided on a sub-contracted basis by a range of organisations. The point is that that is precedented and it works to provide effective support on the ground to vulnerable users.

Most importantly, as I have said, the measures in the Bill also ensure that paper form will remain available for citizens participating in proceedings, so an offline option will always be available for those who need it, not least my right hon. Friend the Member for South Holland and The Deepings.

[Sir John Hayes (South Holland and The Deepings) (Con)]

I am delighted to have come hotfoot from a discussion with one of the people who gave evidence to the Committee, Professor Ekins, who shares my view that the Bill should be widened to deal with matters of parliamentary sovereignty and other issues. We were debating how the new clauses that stand in my name and those of my hon. Friends might be recast to ensure that they are in scope. On the point that my hon. Friend the Minister raises, the key is that the move to online should not be obligatory. Sir Mark, I was making the argument earlier, as were one or two others on the Committee, that vulnerable people, in particular, might struggle with a purely online system and that they needed some protection from the effects of a system that could become exclusively online. Is the Minister giving the reassurance, which would certainly satisfy me, that this will not be obligatory and that there will be an option for people who wish to do so to appear before a court in the traditional way and to make representations accordingly?

[James Cartlidge]

I am glad that the reason for my right hon. Friend’s delay was that he is so proactive he was working to amend earlier parts of the Bill, which we will presumably come to after all the other clauses. To allay his concerns and for his benefit, I will repeat the quote because I think it is important. Clause 18(6) states:

“Where Online Procedure Rules require a person—

(a) to initiate, conduct or progress proceedings by electronic means, or

(b) to participate in proceedings, other than a hearing, by electronic means,

Online Procedure Rules must also provide that, if the person is not legally represented, the person may instead choose to do so by non-electronic means.”

To be clear, if a person is legally represented, there is no reason that a legal firm would not be able to participate electronically, and that is why the clause says

“if the person is not legally represented”.

I remind the Committee that those rules apply entirely to civil and family tribunals, not to criminal proceedings. That is a different part of the Bill. I hope that has reassured my right hon. Friend that there will always be choice.

As I have already stated in reference to previous amendments, there is a range of support in place. We have just set up a national contract which will deliver not only telephone and web-based support, but physical, in-person support, of the kind that we see in our courts and other physical locations around the country. There is a wide range of measures.

[Sir John Hayes]

I am extremely grateful to the Minister, both for giving way and for that assurance. He is right that our endeavour in the Bill is to increase efficiency, free up court time and make the system run more smoothly. I was discussing that with hon. Members earlier, and I share that view. My fear was that the most vulnerable of our countrymen might be disadvantaged, but my hon. Friend has reassured me that that will not be the case because the measures will not be obligatory. “There will always be choice” were his words. Let those words ring out in the Committee and assuage the fears that I articulated on behalf of the most needy.

[James Cartlidge]

I am grateful to my right hon. Friend. As a Conservative, he is, of course, a champion of choice at the forefront of public policy—

[Sir John Hayes]

And a champion of the needy!

[James Cartlidge]

Of course—and the needy. They are both important. Given the safeguards in place and the fact that an offline option is already available, I do not think the amendments are necessary. I therefore urge the hon. Member for Stockton North to withdraw them.

--- Later in debate ---

[James Cartlidge]

When we meet to discuss the single justice procedure—a meeting that I was more than happy to agree to—we can talk about how we can look at things. There will obviously be ongoing reviews. It is important that we get this issue right—by ensuring that it has been through a tender, for example.

[Sir John Hayes]

We have teased out important things from this debate. Would the choice that my hon. Friend the Minister mentioned earlier apply to witnesses, too? I am thinking of a blind person who has heard something or a deaf person who has seen something that might provide vital evidence, both of whom would struggle with the conventional online model. Will provision will be made for them to exercise, as witnesses, the sort of choice that he described earlier?

[James Cartlidge]

I can absolutely confirm that to my right hon. Friend. At the moment, we are talking about civil cases; he is absolutely right that those people could be witnesses in those, of course.

I stress that the matter would be at the discretion of the courts, without a shadow of a doubt, but I think there will be far more cases of vulnerable witnesses where technology assists the process. The obvious example is section 28 proceedings, in which evidence can be recorded in advance of the actual in-person hearing; they have become a very important part of the justice system. The Secretary of State has set out his desire for them to be rolled out more broadly. In a way, my right hon. Friend makes the point for me: technology in such cases can be of great assistance, and we are applying it to intimidated witnesses as well.