Judicial Review and Courts Bill (Second sitting)

Paula Barker Excerpts

Committee stage
Tuesday 2nd November 2021 Public Bill Committees

[The Chair]

I am conscious of the time, and we have three more questions to come. Paula Barker.

[Paula Barker (Liverpool, Wavertree) (Lab)]

Q Thank you, Chair. I want to concentrate on clauses 18 to 31, which deal with the online procedure rules committee, and I will put this question to Sara first, if I may. I would be interested to understand which types of proceedings you believe should be subject to online procedure rules.

Sara Lomri: Ellie, I am not trying to drop you in it, but could you answer that first? I feel like you have more to say about online than we have.

Ellie Cumbo: The Law Society would probably not get into the detail of deciding which cases it would be appropriate for. What we do have is quite a comprehensive set of views on the types of proceedings in which online proceedings are appropriate—rather than the types of cases, if you see what I mean. It is going to depend not just on what the case involves, but on the nature of the parties. If it is helpful, I would be very happy to provide that to you after today. I am probably not in a position to itemise it right now.

The only thing I would say that I think would serve as a general Law Society position on this part of the Bill is that we have a particular concern about unrepresented litigants or, in criminal proceedings, defendants taking part in online proceedings. There is a real danger of the formality not being clear to them in the absence of expert advice, and these can be life-changing decisions, so we would have real concerns about the fact that, as drafted, the Bill does not seem to make any distinction between represented and unrepresented parties.

[Paula Barker]

Q Thank you. That is really helpful. Louise, did you wish to add anything?

Louise Whitfield: No. Liberty is not doing any work on part 2 of the Bill, so I will leave it to colleagues to answer this.

[Paula Barker]

Q Thank you. I believe this next question is actually for Sara. What impact will the measures in clauses 18 to 31 have on practical access to justice?

Sara Lomri: Public Law Project, like others, remain very concerned about digital exclusion and the blurring between digital assistance and independent legal advice, which we say remains extremely important. Further than that, I know that you will hear from other witnesses later on, including Justice, and we would support what they say on online courts. Later on today, you also have Dr Joe Tomlinson, our ex-research director, who will also be able to flag some headlines in terms of PLP’s response to the online issue.

[Paula Barker]

Q I will be putting the same questions to Justice in the next session. Do you think there are any potential safeguards that the Government could introduce to ensure that access to justice is not adversely impacted?

Sara Lomri: In terms of the headline answer to that question, we would say preserving and promoting legal aid, and ensuring that independent legal advice remains a viable option for those using online justice systems.

[Paula Barker]

Q What about the powers provided to the Lord Chancellor by the OPR provisions in the Bill, specifically looking at clauses 19 to 26? Do you believe that they cause a democratic deficit?

Sara Lomri: I am sorry, but I am not able to answer that question.

[The Chair]

Paula, I am conscious of the time.

[Paula Barker]

That is fine. Thank you, Chair.

[The Chair]

I think the Minister wants to come in briefly now. I will then move to Liz Twist, and then to Caroline.

--- Later in debate ---

[The Chair]

Sorry; we are not taking questions unless they have been indicated. Tom has indicated that he has finished his questions. I call Paula Barker.

[Paula Barker]

Q My question is for Ms Needleman. You may have heard Ms Lomri suggest that you would be best placed to answer this question on clauses 19 to 26—[Interruption.]

[The Chair]

Order. We are not having a separate meeting on the side.

[Paula Barker]

Thank you, Chair. Ms Needleman, what are your views on the powers provided to the Lord Chancellor by the OPR provisions, and do you believe that they cause a democratic deficit?

Stephanie Needleman: The provisions relating to the online procedure rules give significant power to the Lord Chancellor. The Government have themselves recognised that the broad powers provided to the Lord Chancellor could have a significant impact on access to justice and that some of those powers should therefore be subject to a requirement to obtain the concurrence of the Lord Chief Justice. However, there is a slight lacuna in the Bill, in that two powers are not subject to the same concurrence requirement.

Those are the power to require the online procedure rule committee to make rules, and a broad Henry VIII power to make consequential amendments, the latter power being subject only to a consultation requirement and the former to no requirements at all. That undermines the point of having a concurrence requirement in the first place. As Lord Judge pointed out on Report of the Courts and Tribunals (Online Procedure) Bill—the previous iteration of these rules—taken together, those powers overrule the very rules that the Government themselves made subject to the concurrence requirement because of the wide-ranging impact the provisions can have on access to justice.

[Liz Twist]

Q Ms Needleman, do you have any concerns about the type of online convictions that might be used in future?

Stephanie Needleman: Absolutely. As I said before, we do not think this procedure, as it stands, should be introduced at all, because of the lack of evidence and the concerns around protections in relation to the identification of vulnerabilities and inequalities. However, if it is introduced, we at Justice are calling for it to be restricted to non-recordable offences only.

Currently, the Bill would allow the procedure to be used for a range of offences that would cause people to have a criminal record. That could impact parents when it comes to failing to provide for the safety of children at entertainments, for example, or it could impact pub-goers and pub owners in relation to the offences of being drunk in a public place or selling alcohol to a person who is drunk. If the procedure is to be introduced, we would call for it to be for non-recordable offences only, because the implications of being convicted of those are smaller.