Courts and Tribunals (Online Procedure) Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

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

Moved by

[Lord Ponsonby of Shulbrede]

1: Clause 1, page 1, line 9, leave out “or require”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I shall speak also to Amendment 6, which is in the first grouping. On Amendment 1, HMCTS has acknowledged that its assisted digital programme will not be sufficient to support everybody to engage with online processes and has therefore made a commitment that digital services will not be mandated. In relation to the reform agenda, it has been stated that HMCTS will continue to make provision for litigants to continue to use paper documents in accessing family court proceedings. It is therefore concerning that Clause 1(1)(a) would allow the Online Procedure Rule Committee to make rules requiring certain proceedings to be initiated electronically, and that Clause 1(1)(c) would allow rules requiring parties to participate electronically.

The purpose of this amendment is to make it crystal clear that people with particular vulnerabilities will not be required to participate in court proceedings, particularly family proceedings, in a digital way. I think the Government have been too optimistic when looking at the proportion of the population that is digitally excluded. The figure they have is that 18% of the population do not use computing equipment, but I would argue that that number is far too low. When one looks, for example, at the population using internet banking or similar sensitive issues, it is only 56%. I believe it would be helpful if it were clearly stated in the Bill that there will not be an expectation for parties to engage with any family court proceedings online and that paper channels will always be available to anyone who chooses to use them.

Amendment 6 is also part of this group. Clause 1(6) would allow the Online Procedure Rule Committee to set out circumstances under which proceedings should be transferred to a full court hearing, and therefore no longer come under the OPR. Although it may be useful to provide some clarity as to when cases can be transferred, I would be concerned if this resulted in any restriction of judicial discretion, and that any individual case could be transferred to a court hearing if it was required. The purpose of Amendment 6 is to make this point explicit in the Bill. I beg to move.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, Amendment 3 is in my name and in the names of my noble friend Lord Beith and the noble and learned Lord, Lord Judge. This amendment seeks to have the Bill offer a choice to parties between filing forms and other documents under the Online Procedure Rules by electronic means or submitting them on paper. At Second Reading, the Minister said that the Government recognised,

“that not all court and tribunal users will be able to engage online and so paper routes will continue to be available for those who need them”.—[Official Report, 14/5/19; col. 1506.]

The noble and learned Lord has repeatedly said that litigants will have a choice between filing documents electronically and filing paper documents, the intention being that paper documents will be scanned into the online file and available thereafter to be accessed online if desired. That promises a perfectly acceptable arrangement, but I suggest that we need a guarantee that it is going to happen.

For many, this is a matter of considerable importance. While no doubt the electronically literate with access to computers and the internet will choose to produce and file documents online, Lord Justice Briggs, as he then was, recognised in his review the difficulties that would face litigants who are unable to use or access computers. Such difficulties are compounded by the facts that for many there are serious financial challenges in accessing online resources, and that in many areas of the country access to acceptably fast broadband is unavailable. In spite of some progress in this area, I interpose that our inability to guarantee fast broadband across the United Kingdom is shocking.

If the Government intend to ensure a choice for parties between online and paper documents, there can be no good reason for them failing to spell that out in this legislation. Whatever the Government’s good intentions may be, there is no guarantee that a future Government will honour a commitment that is not on the face of the statute. This is not a matter where a statement of intent by the Minister will satisfactorily safeguard future litigants. There can be no downside to incorporating the choice in the Bill.

--- Later in debate ---

[Lord Keen of Elie]

With respect to my noble and learned friend, my understanding of the position is that the rules will require that certain forms of action—for example, small debt action—should be commenced under the simplified Online Procedure Rules by way of the digital portal, whether you go through electronically or, as I mentioned before, by way of a paper application. However, once that process is in train, there will be a retained judicial discretion to decide whether the case should remain under the simplified online procedure or whether it would be more appropriate for it to be removed from that procedure and to proceed under the ordinary Civil Procedure Rules to an oral hearing.

[Lord Ponsonby of Shulbrede]

My Lords, I thank all noble Lords who took part in this short debate, which has covered quite a wide area. I understand the point made by the Minister about these being civil actions for relatively small amounts of money, and not having the discretion as regards initiating proceedings on paper if that were the case. Although this is the main focus of the Bill now, it has wider connotations—a point made by the noble Earl, Lord Listowel. Some of us, including myself, are thinking about this from other perspectives such as the family jurisdiction.

When addressing Amendment 4, the noble Lord, Lord Marks, made an interesting point, asking what happens when both parties agree to proceed with online proceedings. I thought he intimated that there should be an expectation that they would indeed go ahead with online proceedings. Certainly, from the perspective of somebody who sits in the family jurisdiction, I would say that that would not be appropriate. Whether matters go ahead either online or otherwise should be retained as a judicial decision because it is not unusual for parties to agree to something that is inappropriate in the family courts; the court needs to take a separate view.

Having said that, I thank the Minister for addressing the points; I suspect we will return to them at a later stage. I beg leave to withdraw my amendment.

Amendment 1 withdrawn.

Moved by

[Lord Ponsonby of Shulbrede]

2: Clause 1, page 1, line 14, at end insert—
“( ) Civil Procedure Rules, Family Procedure Rules, Tribunal Procedure Rules, employment tribunal procedure regulations and EAT procedure rules must determine for the relevant jurisdiction which proceedings can be governed by the Online Procedure Rules Committee.”

[Lord Ponsonby of Shulbrede]

My Lords, Amendment 2 addresses Schedule 2 on the Online Procedure Rule Committee, how it relates to proceedings under the standard civil, family and tribunal procedures rules, and when these do not apply. Although I appreciate the importance of a clear process indicating which rules govern proceedings—and giving precedence to one committee does achieve that—I am concerned that the result will be the OPRC being able to make decisions about the appropriateness of online procedures for cases without input from the Family Procedure Rule Committee or other relevant jurisdictional committees. Amendment 2 could resolve this issue by clarifying under Clause 1 that the relevant jurisdictional rule committee must determine which proceedings can be governed by Online Procedure Rule Committee.

On Amendment 8, Clause 1(1)(b) would allow the OPRC to designate any family proceedings to be dealt with online. While I appreciate that the aim of the legislation is to be permissive, with the details to be delegated to the OPRC, I am concerned that no limits are set out in the primary legislation in relation to the appropriateness of online processes within the family court. At Second Reading, I raised concerns about the appropriateness of full video hearings in the family court. The president of the Family Division has said that, in the vast majority of cases, face-to-face hearings would normally be required for contested cases involving oral evidence, multiparty cases concerning litigants in person, or any cases concerning children. It can be the case that not all participants have to be present in court. I know that is fairly common practice in other parts of the country, depending on the distance to be travelled, when turning to the family court. But the general expectation should be that anything to do with the family jurisdiction—any contested matter—should be held in person and not online.

I beg to move.

[Lord Beecham]

My Lords, I refer to Amendments 7 and 8 in this group. I suspect that the inclusion of a reference to criminal justice proceedings is otiose; I hope so. No doubt the Minister will confirm that, in which case I will not press the issue; it would be entirely unnecessary, as indeed it should be.

There is a concern about possession claims for homes. We in your Lordships’ House are all aware of the great pressure on the housing sector and the vulnerability of a great many people in private rented accommodation in particular. It seems sensible that they should not be included in the general proposition of reverting to digital processes, because I suspect they are the least likely to be able to cope with that way of proceeding. I hope the noble and learned Lord will give that some further consideration, although he may not necessarily respond one way or the other today. Given the state of the housing market and the well-known difficulties experienced by so many tenants—and the difficulties they would have in proceeding under the provisions of the Bill, particularly in the absence of legal aid and advice in so many parts of the country—it would be wrong to include them in a system which would effectively give them no recourse to advice and support.

--- Later in debate ---

[Lord Keen of Elie]

To clarify, I believe I said that many housing issues are currently governed by the Civil Procedure Act 1997. They are therefore subject to civil procedural rules and could, in turn, be subject to rules introduced by the OPRC for digital access. There is no present intention to address that in the context of housing. I went on to add that, at present, there is an online procedure for some forms of housing claim, such as possession claims, which can be made through the relevant website. I emphasise that housing cases fall within the wide remit of this legislation, but there is no present intention to embrace them within the OPRC.

[Lord Ponsonby of Shulbrede]

My Lords, I thank noble Lords who have spoken in this short debate. I understand the central point made by the Minister: that he does not want any statutory limitations on the relationship between the various committees. My Amendment 2 gave one model of a relationship between the two committees. I shall withdraw the amendment, but there is no statutory relationship between any of the committees at the moment. That may have to be developed over time. It may not be for this Bill, but all the committees will have to have a close working relationship which will have to be developed one way or the other. Nevertheless, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

--- Later in debate ---

Tabled by

[Lord Ponsonby of Shulbrede]

20: Clause 7, page 7, line 24, leave out “at least three” and insert “a majority of”

[Lord Ponsonby of Shulbrede]

My Lords, if I may say a word out of turn, I am grateful to the Minister for what he said about my Amendment 20 and for saying that he will consult about agreeing something along its lines. I also want to make a point about Amendment 15, which we have also passed, which is that magistrates are represented under statute, under the other rule-based committees.

[Lord Keen of Elie]

I will briefly clarify the position for the noble Lord, Lord Ponsonby. I was not undertaking to consult to agree, but to give further consideration to the matter before Report.