Courts and Tribunals (Online Procedure) Bill [HL]

Lord Beecham Excerpts

Tuesday 14th May 2019 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I refer to my interest as an unpaid consultant in my former solicitors’ practice, as recorded in the register, and to my less-than-complete mastery of the digital process. I may not be alone in that in your Lordships’ House. Clearly there is a case for an appropriate development of the use of technology, not least because of the pressures on the system, enhanced as they have been by the closure of many courts and the inconvenience thereby occasioned to litigants. But this must not be at the expense of access to justice, or indeed a further dilution of the provision of legal aid and advice.

Why have the Government chosen to go well beyond the recommendation of Lord Justice Briggs in the 2016 Civil Courts Structural Review that the online courts should be used for money claims with a value of up to £25,000? Given the number of potential cases across the legal system covering both courts and tribunals, and the diverse character of those cases and of the parties involved, should not the new approach be piloted before being rolled out across the whole country and the whole system?

While the Online Procedure Rule Committee will design the rules, with the requirement that at least three of its proposed five members support the proposed rules, they can be required by the Lord Chancellor to make rules, and he or the Secretary of State will be empowered to amend, reveal or revoke legislation where necessary and/or desirable to facilitate the making of rules. What process is envisaged for the exercise of such powers, and will change be effected through the affirmative procedure?

Given the wide range of application of the new procedure, why is the committee restricted to five members? The Civil Procedure Rule Committee has 16 members, the Family Procedure Rule Committee has 15 members and the Tribunal Procedure Committee has nine. Here a much smaller figure is proposed. Will the Government ensure that there is gender balance within the composition of the committee and its staff, and that the Bar and solicitors are represented, together with representatives from the advice sector and, as has been suggested this afternoon, from the judiciary itself? And will they look again at the suggestion in Lord Justice Briggs’s report that the membership of committees should include in relevant cases members with relevant skills such as engineering and IT? Given their declared intention for the committee to be independent, how will the Government exercise their power,

“to require the OPRC to make online rules to achieve the specified purpose”,

within a specified time? The Law Society points out that Clause 1(3)(d) refers to the use of,

“innovative methods of resolving disputes”.

What do the Government have in mind in that area?

Clause 1(6) and (7) authorise rules to provide for proceedings of a specified kind not to be governed by, or to cease to be governed by, rules, and instead to be governed by civil procedure and other existing rules. What consultation will take place and what criteria will be applied to that process?

Clause 3 allows the Minister by regulations to provide for the person initiating proceedings to choose between online and other procedures and rules. What consultations have taken place or will take place on this process? What role is there for the defendant in such cases? The clause also empowers Ministers by regulations to allow online procedure rules for excluded proceedings. What is the rationale of this provision? Can the Minister exemplify how it will work?

Why will regulations empowered by Clause 6 be made by the negative resolution process?

Clause 8 empowers the Minister to write to the committee asserting that he,

“thinks it is expedient for Online Procedure Rules to include provision that would achieve a specified purpose”,

which the committee has to make “within a reasonable period”. The Explanatory Note says that this,

“may be required in situations of urgency”.

Can the Minister exemplify such situations and indicate what would constitute a “reasonable period”? Will it be open to the committee to decline a request or amend any proposed change?

Will the powers of the Lord Chancellor in Clause 9 to amend secondary legislation to reflect the introduction of online procedure rules be made by the affirmative or negative procedure? I concur with the Law Society’s view that it should be the former, as others have suggested today.

There is a particular concern about the impact of the Bill on housing cases, an issue raised by the Housing Law Practitioners Association, to which Lord Justice Briggs responded in his report by asserting:

“Claims for possession of homes (even if accompanied by a money claim) should at least initially be excluded from the Online Court”.


He also stated that he was,

“persuaded that there should not be compulsory inclusion within the Online Court of the damages-only sector of these claims, particularly where fixed costs recovery still supports an economic model for CFAs”.

He added:

“I continue to see no reason why there should not be voluntary admission of these cases, where a tenant claimant so wishes”.


However, he added that he could not see,

“how these counterclaims could easily be brought within the Online Court if the possession claim is to be excluded”.

On enforcement, Lord Justice Briggs recommended that,

“urgent steps need to be taken to address the under-investment and consequential delays which clearly undermine the quality of the County Court bailiff service”.

Can the Minister indicate whether, and if so when, the Government intend to address this issue?

Clause 2 does not explicitly refer to housing cases but, in the light of Part VII of the Housing Act 1996, it would appear that they are included in the category of civil proceedings. Perhaps the Minister will confirm that that is the case?

Your Lordships will be aware that housing law is an area in which access to justice is problematic with, in effect, legal aid and advice deserts in many parts of the country enhancing the vulnerability of tenants. It is not unreasonable to question whether in this most sensitive area of the justice system reliance on a digital system is the right approach. What steps will the Government take to ensure that adequate support is available to tenants, many of whom will be vulnerable and unequipped to contest a claim for possession, and will they, and if so when, review the efficacy of the changes embodied in the legislation?

There is wider concern about the impact of the policy on people unfamiliar with the digital world. PCS, the Public and Commercial Services Union, shares this concern and avers that the changes are primarily driven by the 40% cut in the Ministry of Justice’s budget, and points to the fact that the Courts and Tribunals Service’s own staff survey revealed that 85% of its respondents regarded the new technology as having a negative effect on timeliness, with 81% averring that it interfered with their ability to give legal advice and ensure a fair hearing.

Finally, can the Minister assure us that the next move to modernise the justice system will not be to replace the judiciary and tribunals with artificial intelligence?