Courts and Tribunals (Online Procedure) Bill [Lords]

Robert Neill Excerpts

2nd reading: House of Commons & Money resolution: House of Commons
Tuesday 16th July 2019 Commons Chamber

[Robert Neill (Bromley and Chislehurst) (Con)]

I welcome the principle behind the Bill. In setting out the enabling nature of the measure, will the Minister bear in mind that there is an underlying principle, consistent with the Briggs report, which the Lord Chief Justice, Lord Burnett, made clear in giving evidence to the Justice Committee? It is that while professional users will be obliged to use the online procedure, it is not the intention that litigants in person will be. Lord Burnett’s evidence clearly was that a paper alternative will be available as a safeguard for litigants in person. That is an important measure for vulnerable court users. Will the Minister confirm that?

[Paul Maynard]

My hon. Friend makes an important point with which I wholeheartedly agree. I always agree with the Lord Chief Justice in everything he says and does, and I would never dream of disagreeing with him. The fact that an online process is available makes it in no way obligatory for people to use it. There is still a case for physical hearings and very much still a case that people who wish to use a paper system should be able to do so.

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[Robert Neill (Bromley and Chislehurst) (Con)]

I welcome the thrust of the Bill, which is an important, if modest, piece of legislation. The Minister is right to say that it is an enabling Bill. It is welcomed by the judiciary and that should weigh heavily with us, because this legislation is necessary to put in place the rule committee, which, in turn, is required to set up the online procedure in a practical form.

It is worth remembering that this has been talked about and largely initiated by the judiciary from a very early stage. The Briggs report in 2016 by Sir Michael Briggs, as he was then—he is now Lord Briggs of Westbourne—was the first important step in that and largely dealt with online civil money claims. Sir Michael made it very clear to me and many others he spoke to that it was a source of frustration that that sensible and practical measure had been delayed for so long. Since then, that was expanded on by the White Paper in 2016—the joint vision that was set out on transforming our justice system. Although the Opposition have made some criticisms of the Bill, it is worth remembering precisely that that was a joint vision, endorsed by the senior judiciary in England and Wales every bit as much as by the Government. It is an unusual example in our constitution of joint ownership of a project.

The Justice Committee took evidence from the Lord Chief Justice, the Master of the Rolls and the Senior President of Tribunals only last Wednesday. We had a detailed session with them, which was a very valuable insight into this issue. It was clear that they strongly endorse and welcome the principle of the programme and that they see it as one—if it is delivered correctly—that can enhance access to justice from where we are at the moment. Our Committee was impressed with that evidence. That does not mean that questions will not need to be answered in the Public Bill Committee and, in particular, as the rules are drawn up. I understand the points from the Opposition Front Benchers and elsewhere about the technical nature of how the rule committee is to be constructed, but the overall thrust of the proposal is clearly welcome.

[Wera Hobhouse]

Does the hon. Gentleman agree that the diversity of the online procedure rule committee should be looked at, so that we make the courts as diverse as they can be?

[Robert Neill]

That certainly can be looked at as the Bill proceeds in Committee and, no doubt, when the online procedure rule committee is adopted. It is worth looking at the transcript of the evidence from the three most senior members of the judiciary—I think that was the first time that they have appeared jointly before any parliamentary Committee. There is, in fact, a far greater wealth of diversity of views and experience from our senior judiciary and the members of the judiciary who serve on these tribunals than some commentators give credit for. I think that there is a real understanding from the judiciary, but that does not mean that it is not possible to supplement that. I would not want to think that simply because there are three members of the judiciary, as well as other members, that is not in itself enough. They are very alert to the issues that people face, but I think we can think about broadening this.

I have sympathy with the shadow Minister’s point about perhaps making it easier to expand the committee to include practitioners from more than one jurisdiction. In the past, rules committees have often dealt with discrete areas—High Court rules, county court rules and criminal procedure rules. We are dealing with a multiplicity of jurisdictions, particularly in relation to the tribunals, and it is unlikely that we will find one or two practitioners who have the breadth of practical experience in all those different types of jurisdictions. The Law Society refers to the advisability or usefulness of including a member of the Chartered Institute of Legal Executives. That is a sensible point, because a lot of the interlocutory work—the pre-hearing work—will be done by legal executives rather than necessarily by solicitors or barristers, so I hope that the Minister will keep an open mind on that as we go forward.

My other message to the Minister is: please learn the lessons of transforming rehabilitation, which had worthy objectives and could have succeeded in joining up probation and prison in a better way, but it was rushed. It was not piloted properly and was taken at too great a speed. There is an argument that considerations of finance and expediency were allowed to weigh more heavily in the outworking of the process than questions of access to justice and outcomes, and for that reason it did not achieve either of those desired objectives.

I think that the current ministerial team have learned those lessons—the Lord Chancellor has made that very clear—and we have the opportunity to do this in a different, better way. I am confident that the Minister and his colleagues will do it differently, but it is worth bearing in mind that back in 2016, Lord Briggs said that

“it would be entirely unsatisfactory…to make recourse to the [Online Court] compulsory until a proven structure of assistance for those who need it was designed, tested and put into full operation”.

That still holds good. Nothing in the Bill prevents that being done, but it is a question of the political will and the resource being put into it by the Government to achieve that.

Subject to that being done, it seemed to us from the evidence that we received that the House ought to support this modest measure in its current form. That does not mean that there are not broader issues that need to be looked at on the advice that people using our legal system get and the way they can access justice, not only in a nominal sense but practically, through informed decisions about how they use the system. A great deal of work is being done with the Ministry of Justice and the senior judiciary through the various judicial and practitioner working groups that have been set up, but it is really important that we stress the need to get this right, not rush and get absolutely everything nailed in place before we move on. Obviously, it is difficult to rectify injustice, which can include a potential litigant not bringing a meritorious claim, as well as people being led into bringing unmeritorious claims. It is important to get that right. Done properly, this could be a great advantage and in itself is worthwhile, but there is a good deal of devil in the detail that will come further down the track.

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[Paul Maynard]

With the leave of the House, I will do my best to respond to the points raised as speedily as I can, because I know that many are now gathering for the next debate. It is interesting that we started off the debate with a bit of a spiel about ideology and cuts. I found that intriguing, given that we are talking about the £1 billion Government investment in our Courts and Tribunals Service and its modernisation. I am grateful to the Chairman of the Select Committee, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), for reminding everyone in the House that these proposals have the support of our senior judiciary.

A number of concerns were raised about what was termed digitisation by default. Let me make it clear that innovation is crucial to delivering modernisation, but we should never introduce more complexity or technological innovation merely because we can. We should do so because that innovation satisfies our requirements for proportionality and accessibility within the justice system. We always need to work with the grain of human nature, as our law is essentially a human contract in and of itself. Changes should never result in less justice or in people being incentivised not to behave in their own best interests. I have said at least twice in the debate already that the alternative methods must be protected at all times. People can seek telephone advice, for example. We are also piloting face-to-face advice in at least 25 areas. At any point, people can opt out of the online procedure, and the paper-based alternative will always be available. Either side in a case can opt out of an online procedure to ensure that it does not occur online.

Concerns were also expressed about piloting. I hear the point that there is no need to rush, and we are starting by focusing on civil claims under £25,000 being conducted online. Evaluation is important, and I have made it clear that I do not want Her Majesty’s Courts and Tribunals Service to mark its own homework. There will be an independent evaluation, and the panel has already met. It will have academic input in particular to look at the outcomes in relation to access to justice and the cost to users.

The membership of the committee was raised on a number of occasions. Let me be clear that the committee needs to be sufficiently agile to deal with a changing environment in which numerous online procedures will appear from time to time. Nothing in the Bill prevents the Lord Chancellor from utilising clause 7 to expand the membership of the committee when he sees fit to do so. At the same time, the committee can at any point choose to set up sub-committees or to bring in any wider expertise that it needs to draw up the procedures that it thinks appropriate.

[Robert Neill]

I believe that that will be welcomed by a number of practitioners. Can the Minister ensure that, in practice, no bureaucratic impediments will be put in the way of that happening? This intervention also gives me the chance to draw Members’ attention to my entry in the Register of Members’ Financial Interests, which I omitted to do in my speech. I apologise for that, Madam Deputy Speaker. Doing it this way is quicker than making a point of order.

[Paul Maynard]

That is an innovative way to facilitate that speediness.

The shadow Minister, the hon. Member for Bolton South East (Yasmin Qureshi), mentioned parliamentary scrutiny. We are keen to ensure that accountability is maintained, and I continue to believe that it is right for these powers to reside with the Lord Chancellor, who is directly accountable to Parliament, whereas the committee is not. We are not trying to shift the constitutional balance within the Bill. We are looking to maintain that balance, which is why we have sought to ensure that the Bill mirrors the long-standing arrangements for the existing rule committees.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), who spoke for the Scottish National party, rightly raised Scottish representation, and I am very sympathetic to the points that he made. Obviously, I am as keen as he is to devolve tribunals. Not many Ministers stand at this Dispatch Box encouraging devolution, but in this case I am in concurrence with him, to use the word of the day. I am sure that we will continue to discuss that matter, but I hear the point he made about Scottish representation. He also raised the intriguing question why we have only one committee for online procedures, and he asked why the other three committees were not given the task of setting up their own online procedure rules. Essentially, the answer to that lies in the fact that we need the procedure rules to be the same across each of the civil, family and tribunal divisions of our courts. The decision was taken, with the support of the judiciary, to go down that route.

The hon. Gentleman also rightly raised the point that not every type of case is suitable for online procedures. He cited the welfare of children, and that is a good example. We will not bring anything online without seeking the concurrence of the Lord Chief Justice and without laying an statutory instrument that will be debated in both Houses, but I hear what he says. There are many types of cases where physical hearings are the most appropriate path to go down, and I certainly agree with him on that.

On that basis, I commend the Bill to the House.

Question put and agreed to.

Bill accordingly read a Second time.

Courts and Tribunals (Online Procedure) Bill [Lords] (Programme)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Courts and Tribunals (Online Procedure) Bill [Lords]:

Committal

(1) The Bill shall be committed to a Public Bill Committee.

Proceedings in Public Bill Committee

(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Thursday 25 July 2019.

(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.

Proceedings on Consideration and up to and including Third Reading

(4) Proceedings on Consideration and any proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings on Consideration are commenced.

(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.

(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and up to and including Third Reading.

Other proceedings

(7) Any other proceedings on the Bill may be programmed.—(Matt Warman.)

Question agreed to.

Courts and Tribunals (Online Procedure) Bill [Lords] (Money)

Queen’s recommendation signified.

Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),

That, for the purposes of any Act resulting from the Courts and Tribunals (Online Procedure) Bill [Lords], it is expedient to authorise the payment out of money provided by Parliament of any expenditure incurred under or by virtue of the Act by the Lord Chancellor.—(Matt Warman.)

Question agreed to.