Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Pannick and Lord Thomas of Cwmgiedd

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

[Lord Pannick]

My Lords, I share the concerns behind these amendments. There are plainly specific types of proceedings which it is wholly inappropriate to determine online. Perhaps the strongest example is any proceedings relating to the welfare of children. In my view, it is inconceivable that it would ever be appropriate for such matters to be so determined. Yet the powers under the Bill are quite sufficient to allow that to happen, because Clause 1(1)(b) allows for rules which may authorise or require proceedings,

“to be conducted, progressed or disposed of by electronic means”.

This is just one of the many examples of the Bill, which is wholly desirable, failing to include sufficient limitations to preclude the use of these powers in ways that we would all accept are inappropriate.

It may be that the proper answer to this concern is for the Government to support the amendment we are coming to in the name of the noble and learned Lord, Lord Judge. That would ensure that these powers cannot be used without the concurrence of the Lord Chief Justice. I respectfully suggest that the Minister needs to recognise that there is a problem here. The Bill is so broadly drafted that it will allow the exercise of powers in ways that we would all accept are inappropriate.

[Lord Thomas of Cwmgiedd]

I have one question for the Minister. There is an outstanding consultation paper on the housing court, looking at whether we should bring together all the various complicated forms of housing legislation before one tribunal. How will taking out one of the parts of what would be a housing court matter affect it, when what we are dealing with is the procedural system to be applied rather than detailed means of service and hearings, which is what this is about? It would be helpful to have that explained.

We would be rash to assume that paper service of proceedings comes to people’s attention more readily. Certainly, we have found that if you want to get people to attend jury service, or some other things, it is much better to send them a text rather than a brown envelope; they normally respond to texts. That is modern thinking. I think noble Lords will find that people more readily respond in that way. This is much more a detailed matter of procedure.

[Lord Pannick]

Does the noble and learned Lord accept that the powers in this Bill cover far more than process? As I have indicated, Clause 1(1)(b) is concerned with rules as to how proceedings are,

“conducted, progressed or disposed of”.

[Lord Thomas of Cwmgiedd]

I accept that, but I think it is part of the terminology used. That is why, in the intervention I made earlier, I said that it is important to appreciate the difference between a simplified procedure and the way the court works. Unfortunately, despite everything the noble and learned Lord, Lord Woolf, did to try to simplify civil procedure, the White Book has grown from 2,000 to 3,000 pages.

We need to go back. It is an unfortunate tendency of lawyers to ossify everything. This is an attempt, using electronic means, to make access to justice easier and to simplify it, but we plainly need safeguards. I am sure the best safeguard of all is the concurrence of the Lord Chief Justice, which I am sure would solve most of these problems yet allow access to justice to use 21st-century methods to make it cheaper and—if I may, with some trepidation, say so in this House—to conduct litigation without the need to deploy expensive lawyers.