Courts and Tribunals (Online Procedure) Bill [HL]

Lord Mackay of Clashfern Excerpts

Tuesday 14th May 2019 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I too welcome the Bill, which develops the system of assistance in the courts using modern technology. I also share the concerns already expressed. I do not propose to repeat those, because they have been expressed at least as well as I could have done. It is important that the new provisions should not in any way restrict the accessibility of justice. The figures showing how many people can use the systems we have now are interesting, and I would like to probe the detail of them. My experience, over quite a long time, has been that government numbers are not infallible, so one needs to look at that. I am sure that there is a need for care in this respect because, apart from anything else, modern systems of communication are very amenable to glitches of various kinds: we have had plenty of them over the years. It is extremely important that the public, especially people who may not be very familiar with these systems, know what is going on.

One thing that worries me somewhat is knowing for sure that you are on the correct government system. If you try to apply for a passport without too much knowledge of the system you can find yourself in some other group that wants you to pay fees for advice, something our generous Government do not require—so far—if you get on to the right site. If there is a system for paying fees online, you want to be sure that they are being paid to the courts, not to some other group who are willing to receive the money but have nothing to offer in return. I submit that the Bill itself should contain a degree of protection for people in this respect. The noble Lord, Lord Ponsonby, has already suggested that, and it is certainly worthy of consideration at the next stage.

One of the great features of our courts, over all the years that I have had anything to do with them, and for long before, is that they are very immune to any form of leakage. Even in the most important cases that are eagerly awaited by the public as a whole, you do not find a leak in advance of what the judgment is going to be. That is an extremely precious and important aspect of our justice system. One thing that we must be careful about in using an electronic system is that something of that kind could happen. I would certainly like the Bill to have some procedure for trying to ensure that that does not happen.

The next thing I want to mention is judicial discretion. I was always very conscious of the function of the listing officer in making hearings available for people. The speed of getting a hearing is sometimes vital, so the listing officers are officers of the justice system acting under the general directions of the relevant judges. It is very important that if we introduce a system based on electronics, that element does not disappear.

Next, is the Court of Protection covered by the Bill? Is it a civil proceeding, a family proceeding, or a protective proceeding? Is that different, or not?

I have had representations from the Federation of Small Businesses. Apart from anything else, it wants to be represented on the committee, and I shall come to that aspect in a minute, but it is also anxious about the fees that small businesses have to pay to ensure payment by big companies which just delay payment for as long as they can, until they are taken to court. The small business often has to pay quite a substantial portion of the total amount at stake in fees. That matter should be taken into account, and I hope that if a system of electronic communication is introduced, the fees will be reduced, but there is nothing to suggest that in terms in the Bill, although I believe that it should be looked for.

The quality of the English and United Kingdom justice system—I shall come to the distinction in a minute—is generally attributed to the quality of the judiciary. Your Lordships will be aware that there has been concern recently about the availability of quality for the judiciary. I believe that one of the reasons is that the Government, some time ago, departed from the rule that I understood: if someone is appointed to a secure position from which they cannot be taken except by resolution of both Houses of Parliament, the terms on which the person takes it on are the terms which will continue until the time that person retires, or in another way expires. That was undermined by the decision on judicial pensions, which was made some years ago. I believe that if a person is in top-flight practice at the Bar, certainly in England—it may be true in Scotland too—the amount they have to surrender to become a judge is quite substantial. Therefore, the terms on which they are taken on are of vital importance.

The quality of the judiciary is very important. I am not sure about the costs of these proposals, but I am certain that it is more important to ensure that the arrangements for the appointment of judges and the terms of service of judges are secured in such a way that top people can be invited, with a degree of confidence, to take on a judicial position.

As noble Lords know, I have not spent all my time in the practice of the law of England and it occurred to me to see what happens about Scotland. Lo and behold, Clause 14 provides that the Act will apply in Scotland to the two tribunals,

“to employment tribunals and the Employment Appeal Tribunal; otherwise, to England and Wales only”.

If that is so, how is the committee doing? Noble Lords will find that quite interesting. The procedure for committee appointments is made absolutely explicit. First:

“The Committee is to consist of one person who is a judge of the Senior Courts of England and Wales, appointed to the Committee by the Lord Chief Justice”.


So that is a responsibility for the Lord Chief Justice, but the person has to come from the judiciary or “the Senior Courts”. Noble Lords will know that the last time the constitution was changed, one of the results was that England lost its Supreme Court, so it is now from “the Senior Courts”. The important thing is that it is not from the Supreme Court; therefore the judge in question is a judge who exercises English jurisdiction.

The next person is,

“one person who is either a judge of the Senior Courts of England and Wales, a Circuit Judge or a district judge”.

These are all judicial titles from the English system and that person will be,

“appointed to the Committee by the Lord Chief Justice”.

The next person is,

“a judge of the First-tier Tribunal, a judge of the Upper Tribunal, an Employment Judge or a judge of the Employment Appeal Tribunal”—

there are judges of that type in Scotland but the sentence goes on—

“appointed by the Lord Chief Justice”,

and he does not appoint the judiciary in Scotland at all, so there is no possibility of any of these being Scottish judges.

The next person is,

“one person who is either a barrister in England and Wales, a solicitor of the Senior Courts of England and Wales or a legal executive, appointed to the Committee by the Lord Chancellor”.

It is obvious that these are all systems that apply on this side of the border. I suppose the,

“two other persons appointed to the Committee by the Lord Chancellor”,

might possibly have some relationship with Scotland, but it is by no means certain. Can my noble and learned friend explain how this is supposed to work in relation to the application of the Bill to Scotland?

I very much welcome the Bill but I think it probably requires a fair degree of consideration at later stages.