Courts and Tribunals (Online Procedure) Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

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

[Lord Keen of Elie]

I quite see that this House might wish to see it in primary legislation, but the position is this: a committee will be formed to put forward appropriate rules and regulations for the online procedure, under the essential supervision not only of the Executive but of the judiciary. There may come a point, at some unforeseeable time in the future, where the judiciary is of the view that it is no longer necessary to employ paper as a form of application or entry into the judicial process. I do not anticipate that happening—there is nothing here to suggest it will happen—and I do not see that there is a requirement for such a guarantee in the form of primary legislation. We intend to form an Online Procedure Rule Committee that will be well qualified to determine the appropriate routes into the online procedure for all parties concerned, including those perhaps not digitally competent or confident. That remains the position.

[Lord Thomas of Cwmgiedd (CB)]

Perhaps I may press the Minister on one point. It is easy to see that there is a distinction between an online procedure and the way the court works. If it was made clear that the online procedure is largely geared to ensuring that the systems that lie behind it operate efficiently across the system but that, in using that procedure, if people did not want to go online the court would undertake to scan the documents in—if that distinction was made—would the Minister accept that what really is needed, because these amendments do not grapple with the problem, is a guarantee to the litigant that he can go to court, hand in a piece of paper and it will be scanned into the system? That is all.

If that is the effect of these amendments—and it is limited to that—would that not achieve everything and give an opportunity to increase access to justice? In the current system access to justice is a figment of the imagination, but the use of an online procedure would enable this to happen. Will the Minister look at this issue again in the light of my suggestion to him?

[Lord Keen of Elie]

I hear what the noble and learned Lord has said and I will take account of those observations in going forward to the next stage of the Bill. However, at present it is not my intention to accept any of the amendments so far laid in respect of this matter. If there is a way through by which we can underline the right of a party to make an application on paper to the relevant online procedure once it is up and running, that would essentially achieve the objective that we have and I believe the House has. However, I do not accept that it will be achieved by means of the present amendments.

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[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.

[Lord Beith]

My Lords, the weakness in this part of the Bill seems to be that there are no limitations on or barriers to the total extension of the online procedure to all civil, family and tribunal proceedings. Nobody is actually suggesting that, but the absence of any barriers means that we can stray into that territory before there has even been a serious debate about how we could use online procedures in some of these areas. It is fairly obvious for small money claims and promising in a number of other areas, but the Bill is so wide that its lack of any specified criteria or other limitations is worrying.

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[Lord Beith]

My Lords, the noble and learned Lord has reminded me that it is well known that the application system for the US ESTA visa waiver scheme has a number of such sites which exact charges, to which people are not liable because of the very modest charge on the official site itself. I will simply point out that HM Courts & Tribunals Service is already working on this sort of thing. There are 18 locations in which it is providing face-to-face digital support, or at least is said to be providing it. The Government have been working this up on the pilot schemes, so it seems to me another ideal opportunity, which the Minister should not neglect, to accept that the Government are actually on the right lines on this.

It would be rather more reassuring if the Bill contained some obligation to provide this kind of support. If it is not there, the Bill will be open to the charge from many people that it is creating a new system without ensuring that people can use it. The means are beginning to be developed by the Government, so I hope that they provide some statutory basis for them.

[Lord Thomas of Cwmgiedd]

I make two brief observations. First, I support the introduction of the amendment by the noble Lord, Lord Marks, and emphasise that HMCTS provides a lot of advice on various areas and, because it is now jointly accountable to the Lord Chief Justice as well as to the Minister, its independence ought to be seen. Secondly, if Amendment 13 is adopted, I would hope that due regard is paid to the provisions of the Welsh Language Act; subsection (5) does not do so properly at present.

[Lord Garnier (Con)]

My Lords, before my noble and learned friend replies, I gently support the amendment and the way in which it was proposed by the noble Lord, Lord Marks. The policy behind the Bill is clear and sensible: it is to provide easier access, cheaper access and cheaper administration of litigation in certain types of cases. It seems from Clause 2 that the ambit of those cases is broad at the moment. For the reasons given by the noble Lord, Lord Marks, if we do not provide appropriate assistance—if not in the terms expressly set out in his and his supporters’ amendments, at least in some form—I fear that the good intentions behind the policy and the Bill will lead to the unintended consequence, again spelled out by the noble Lord, of a breakdown of the smooth operation of the system because people either do not understand the system or, having got into it, do not understand the technicalities behind internet access. As others have mentioned, that will lead to delay, expense and frustration within the justice system, which the Bill is surely designed to do away with.

I, for one, am certainly not wedded to any particular wording—like the noble Lord, Lord Marks, I am much more interested in outcomes—but the Government need to apply their mind to providing cost-saving and effective forms of assistance. It is not just to the elderly or people with language difficulties, whom the noble Earl mentioned a moment ago, that we need to offer our help: we need to make the system work well and efficiently and be genuinely part of the justice system.

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[Lord Judge]

I will make just one small comment. If the appointments of these additional people are in the hands of the Lord Chancellor, he will end up with a majority of six to two on the committee. If the amendments are to be pursued, I respectfully ask that the concurrence of the Lord Chief Justice to the appointment should be required.

[Lord Thomas of Cwmgiedd]

With the utmost respect to my predecessor, it would be usual for a magistrate to be appointed by the Lord Chief Justice rather than the Lord Chancellor. That would slightly affect the majority, but otherwise I agree with the points made.

[Lord Keen of Elie]

My Lords, it appears that we might avoid both potential problems if we retain the present membership of the proposed committee. Before I turn to the detail of the amendments, it may be helpful if I make some general remarks about the committee’s composition. We certainly support the need for a small, focused and agile committee responsible for making new court rules that are simple, tailored for the benefit of ordinary users and, therefore, understandable. In his final review of the civil justice system in 2016, Lord Justice Briggs as he then was anticipated—I accept—a very differently constituted committee of experts from across various disciplines reflecting users’ needs. A smaller committee allows the standing members to increase and adapt their membership quite easily every time they consider a different topic. That therefore allows them access to a greater spread of expertise and to ensure the rules are made by those who have an understanding of how they are most suited to the user.

The purpose of Amendment 15 from the noble Lord, Lord Beecham, is to add legally qualified members, or members with legal experience, to the committee. As I have indicated, we consider that there is considerable benefit in beginning with a small committee, but one where the membership and expertise can be adapted over time. We consider that adopting the amendment would create issues about who is appointing the membership of the committee and whether there was a disproportionate power of appointment between the Lord Chancellor and the Lord Chief Justice.

I remind noble Lords that the intention is that the online procedure will apply in the first instance to civil money claims up to the value of £25,000, but over time we of course want to widen the procedure’s scope so that it covers the civil procedures, potentially including family and tribunal proceedings. It would be difficult to see the value of insisting on an expanded legal membership at this stage without first gauging the overall value that could be addressed by bringing in specific experts in the area of specific proceedings being considered. In addition, as I said, Clause 6 would allow for the committee’s composition to be changed to incorporate particular experts or disciplines and particular areas of expertise if or when the committee came to address such issues as tribunal jurisdictions or some forms of family jurisdiction.

For similar reasons, we are not persuaded of the need for Amendments 16 and 17, which seek to add an additional member with IT expertise. Again, the argument is the same. Under Clause 6, the committee will have the ability to bring in additional expertise as and when it requires it, and that flexibility is seen as a considerable benefit.

In Amendment 18, the noble Lord, Lord Beecham, seeks to ensure a gender balance on the committee. Of course we support the wider aim of ensuring greater diversity among all senior appointments to public bodies but, to be truly effective, public bodies must bring together a mix of people with different skills, experience and backgrounds. The obligation with regard to appointment is always guided by the code of practice of the Office of the Commissioner for Public Appointments, which sets out the design principles and procedures for appointments with diversity in mind, including gender diversity. It is by these means that we can preserve accountability for diversity. That process is monitored by the Commissioner for Public Appointments, and is subject to a published report each year. We are certainly not complacent about the idea of gender representation at all levels on all committees, but we think it better that it is seen through the wider lens of the Equality Act, which protects a broader range of groups, not just gender. At this stage, we are not inclined to accept that there should be an express provision on gender balance.

Amendments 20 and 21 deal with the number of committee members required to agree the rule changes. Amendment 21 from the noble Lord, Lord Beecham, would increase the number needed from three to five, and that would perhaps be a consequence of an extended membership. Amendment 20 from the noble Lord, Lord Ponsonby, would require a simple majority with regard to matters, rather than just the current number of three. I can see that there may be an advantage in having some flexibility here, if we look forward to the point where the committee decides to exercise the powers under Clause 6 and extend the numbers in the committee to embrace further areas of expertise. I would like to give further consideration to that point in light of that, because it seems that underlying this there is a point that we should address before Report. With that, I invite noble Lords not to press their amendments at this stage.