Courts and Tribunals (Online Procedure) Bill [Lords]

Stuart C McDonald Excerpts

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

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure as always to follow the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Robert Neill), whose contribution was as ever thought provoking and valuable.

I welcome the opportunity to take part in this debate. I thank the Minister for explaining the background to the Bill and for taking the time to speak yesterday on the telephone about its provisions. While the Bill will have its most significant impact in England and Wales, it is important to remind the House that it will also have significant implications for Scotland and Northern Ireland, because of its application to various reserved tribunals operating in those jurisdictions. The employment tribunal for Scotland received 24,000 cases last year, and while we do not have Scotland-specific figures for the UK-wide first and upper tier tribunals, even a simple population share would suggest a similar number again taking up social security cases and asylum and immigration cases in those institutions. In due course, further tribunal functions will be devolved, but in the meantime the Bill is important for many people seeking access to justice in Scotland.

On the Government’s broad approach, we give a cautious welcome to the Bill. Who would not want to explore every opportunity available to use technology to make access to justice easier and less expensive? If online procedures can make access easier—and there is no doubt they can if properly resourced and planned—that is good from a rule of law perspective. The Scottish Courts and Tribunals Service has its own five-year digital strategy, and the approach set out in that document gets to the heart of how we should approach technology in the law when it says:

“Digital is not an end in itself—but it is clear that well targeted development and investment in digital technology can increase the effectiveness and efficiency of the services and support we provide to the judiciary, to all those who use our services and to those who work to deliver them”.

We get what the Government are trying to achieve and support the broad aims of the Bill. It should have a Second Reading and our approach today is one of constructive criticism.

I shall briefly flag up four areas where further debate is needed. First, as already touched on, it is interesting that the Government thought the best way to proceed was to ask one single online procedure committee to look at the possibility of online rules for a huge variety of proceedings in different jurisdictions. The alternative approach would have been to task existing procedure rule committees and rule drafters with expanding online procedures and options in each discrete area of law. These existing committees clearly already have considerable expertise in their particular fields. It would be interesting to know why the Government thought it best to proceed in this way.

The single online committee will potentially be dabbling in very disparate fields of law—from tax to family and social security, and lots in between—and sometimes will be making rules applicable in completely distinct legal jurisdictions. That suggests that a wide variety of expertise might be needed and possibly a committee with a considerable number of members, as the Justice Committee Chair said, yet the committee is comparatively small for such a major undertaking.

The Law Society argues—this was mentioned by the shadow Minister, the hon. Member for Bolton South East (Yasmin Qureshi)—that a committee with such significant powers to change legal processes should include at least one representative from each of the solicitor, barrister and chartered legal executive branches of the law, so that it has access to their varying professional experiences and skills. The fact that there is a solitary IT expert on the committee is also surprising, given the nature of its undertaking. We need to reconsider whether the Government have got the size and make-up of the committee right or whether these criticisms mean it should be amended—or are there other ways to ensure it taps into existing expertise, rather than trampling all over it?

There is currently no scope for representation on the committee from Scotland or Northern Ireland. This point was raised in the House of Lords. There is still a significant question about whether there should at least be the discretion to appoint suitably qualified legal practitioners or judges from those jurisdictions, especially when the committee is working on procedures that will impact directly on them. As I outlined earlier, many thousands of cases each year in Scotland and Northern Ireland could be affected. The Law Society of Scotland also argues that

“there should be capacity in the Bill to include representation from other jurisdictions if appropriate”.

There are different ways we could do that, and they could and should be explored in Committee.

We also need to carefully consider the issues of choice as against compulsion and whether the necessary support will be available to ensure that all can take advantage of new online procedures. As we have heard, there will be some who do not want or just cannot realistically use online procedures. The Minister himself acknowledged that. That might be because of infrastructure challenges. Ofcom’s “Connected Nations” reports remind us of the numbers who do not have access to good broadband or 4G. For many more people, there will be challenges around digital exclusion. There are various ways to measure that, but 10% of UK citizens—5.3 million people—have never used the internet or not used it at all in the past three months.

We must focus on the needs of vulnerable people and how online processes may impact on them and how they are protected. How do we ensure that online courts do not provide a back door for dodgy advisers and others offering dubious advice to people litigating online and that the advice being acted on is not being acted on without oversight?

We welcome the assurances that this is not about blanket compulsion and forcing online procedures on people and welcome the changes in that regard that were made in the House of Lords. In Committee, Members will be able to consider carefully whether those changes are sufficient to deal with the concerns that have been expressed.

[Mr Jim Cunningham (Coventry South) (Lab)]

The hon. Gentleman has made a valid point about people’s interpretations of online information. People often look up medical advice online and often subject it to their own interpretations. We must be very careful about this, because many people cannot go online, and those who can may not be accustomed to, for example, certain legalistic phrases. The language must be simple as well.

[Stuart C. McDonald]

The hon. Gentleman has made a good point, and a useful comparison.

I have mentioned people who may not want to or cannot go online. The other side of the coin is that people should not have to opt out of online procedures if appropriate support would enable them to use those procedures and benefit from their advantages. The Lords introduced welcome additional measures relating to requirements for the provision of support. The Committee will be able to assess whether those measures have sufficient teeth to ensure that concerns that have been raised have been properly addressed. The availability of appropriate support is fundamental to the success of the Bill.

Barely a Bill is passed in this place without the Government’s helping themselves to broad Henry VIII-style powers and leaving too much to negative resolution procedures. That issue arises again in this Bill, and it will no doubt be tackled in Committee stage or on Report. The Law Society suggests that affirmative procedures should be required in relation to regulations under clauses 7(5) and 8(6), which would allow Parliament better scrutiny of new procedure rules as they are developed. I agree with the shadow Minister that we should look closely and positively at its suggestion.

That brings me to a final simple but important point. We must proceed cautiously, and on the basis of evidence. The hon. Member for Bromley and Chislehurst was right to say that we should not rush. As we move forward, we must make sure that we understand the impact of moving things online and respond appropriately.

As the shadow Minister said, research and testing are vital. Let me give just one example. In 2013, the Bail Observation Project found that there were significant variations in the outcomes of immigration bail hearings: 50% of people who were heard via video links were refused bail, compared to 22% of those who were heard in person. Recent research conducted by Jo Hynes of the University of Exeter suggests that that massively differential impact still exists. We need to understand why it exists, and until we understand it, we should be cautious about replacing certain types of hearing in person with video-link alternatives.

Sadly, caution was not what the Public Accounts Committee found when reviewing the Government’s programme of court and tribunal reform last year. It concluded:

“The pressure to deliver quickly and make savings is limiting HMCTS’s ability to consult meaningfully with stakeholders and risks it driving forward changes before it fully understands the impact on users and the justice system more widely.”

We must not allow the development of online systems to outpace our understanding of their impact. We therefore need to look at the role that Parliament has in scrutinising the roll-out of online procedures and consider whether we need to put tougher provisions about post-legislative scrutiny in the Bill so that we can ensure that progress is made at the right pace.

We welcome these proposals, with a degree of caution, and will seek to be constructive critics of the details. They are not a panacea that will cure some of the real problems in accessing justice that have arisen—largely thanks to the terrible legal aid cuts in England and Wales over the past decade—but they can be part of a suite of measures that will allow legal proceedings to be simplified and made more accessible, and we want to support that goal.