Courts and Tribunals (Online Procedure) Bill [HL]

Report

Clause 1: Rules for an online procedure in courts and tribunals

Amendment 1

1: Clause 1, page 2, line 2, at end insert— “(3A) For the purposes of subsection (3)(a), regard must be had to the needs of those who require technical support in order to initiate, conduct, progress or participate in proceedings by electronic means.”

My Lords, I begin by thanking noble Lords for attending this debate. I extend my thanks to those noble Lords who have engaged with me on the Bill through its last stages,

The amendments in this first group are all about access to justice under the new online procedure, an important topic that I know we all wish to get right. I shall open with the government Amendments 1, 4 and 18, which appear in my name. I believe that we are united in seeking to ensure that we get this right, particularly in our steps to ensure that unrepresented litigants have the right levels of support for this procedure.

On Amendments 1 and 18, as I indicated, we are committed to accessibility and to providing support to help many people to use the online services where otherwise they would find it difficult. Amendments 1 and 18 provide that, when making rules, the Online Procedure Rule Committee must try to ensure that the procedures are accessible and fair. They also require the committee to have regard to the needs of those who require technical support to engage with the online procedure.

I am, however, aware that the responsibility for making rules does not reside only with the committee. The Lord Chancellor must also allow the rules for them to come into force. Therefore, as an additional safeguard, Amendment 18 provides that, when allowing or disallowing the rules, the appropriate Minister must have regard,

“to the needs of those who require technical support in order to initiate, conduct, progress or participate in proceedings by electronic means”.

The amendments effectively cover support for those people who cannot easily access our digital services due to a lack of digital skills, a lack of confidence, perhaps, or a lack of tools.

I think it is clear from this that, throughout the rule-making process, our focus is firmly on the needs of litigants, from when the Online Procedure Rule Committee develops rules to the end of the process when the appropriate Minister decides whether to allow them. I consider that these amendments are comprehensive and wide-ranging enough to ensure that the system will be accessible and fit for purpose. In developing the amendments, we have listened to, and sought to address, the concerns expressed by noble Lords about the provision of support to unrepresented litigants. It is in these circumstances that I shall press Amendments 1 and 18.

2: Clause 1, after first “to” insert “providing for”

My Lords, I will speak to all the amendments in this group that I have anything to do with. I welcome the Government’s Amendment 1 requiring that, in the context of making the rules accessible and fair,

“regard must be had to the needs of those who require technical support in order to initiate, conduct, progress or participate in proceedings by electronic means”.

I am grateful to the noble and learned Lord for the time that he and his Bill team have spent and the trouble that they have taken to incorporate provisions in the Bill to assist those who may find it difficult to access online proceedings, and to discuss with me and others the amendments that we proposed. Our original amendments, proposed in Committee, went further than the provisions now agreed by the Government, but we are satisfied that the needs of the so-called digitally excluded will be protected by the new provisions, with the benefit of the amendments tabled in this group, which are, as I understand it, largely agreed by the Government.

The Government’s amendment proposes that,

“regard must be had to the needs of those who require technical support”.

We have offered two improvements in Amendments 2 and 3, in my name and the names of my noble friend Lord Beith and the noble Lord, Lord Pannick. They require, first, that regard must be had to “providing for” those needs, which we say strengthens the requirement, and, secondly, that the support should not be limited to “technical” support, which could give the impression that the only support available would be with the operation of the computer system. This might be understood to be considerably less support than that which has been made available by HM Courts & Tribunals Service under the present pilot schemes, which we applaud and wish to see replicated across the board in the implementation of the online procedure. We are grateful to the noble and learned Lord for agreeing to accept these amendments.

Amendment 4 is designed to enable parties to initiate proceedings by non-electronic means. This is intended to enable parties who want to start proceedings with paper documents to do so, as the noble and learned Lord explained. The paper documents will then be scanned into the online system, and will be made available online to all, as the noble and learned Lord explained in Committee. However, this amendment needs the addition of Amendment 5, in the names of my noble friend Lord Beith, the noble and learned Lord, Lord Judge, and the noble Lords, Lord Pannick and Lord Beecham, which I support, to ensure that all documents, not only the initial claim, can be submitted in paper form and scanned for use with the simplified online procedure. It also ensures that a litigant who wishes to use a paper procedure can receive paper documents at his or her choosing—that is, receive as well as transmit them. My understanding is that, while the Government’s position is that they do not accept the precise terms of Amendment 5, the noble and learned Lord intends to bring back an amendment of like effect at Third Reading. That is very welcome news.

I turn now to Amendment 9, in my name and that of my noble friend Lord Beith, and my manuscript amendment, Amendment 9A. From our point of view, these are extremely important. The new clause would impose a duty on the Lord Chancellor, who is responsible for HM Courts & Tribunals Service, to arrange for the provision of support for digitally excluded people. It aims to meet a concern powerfully expressed by Lord Justice Briggs in his review, and by a number of noble Lords at Second Reading and in Committee. Our original amendment, as in the Marshalled List, includes subsections (2) to (4), which would give the Lord Chancellor a regulation-making power in relation to such support. However, the Government have effectively taken the position that the Lord Chancellor needs no regulations to tell him how to fulfil his statutory duties. That was their first point. Their second was that the concurrence requirement in the subsections offends against the principle in the concordat between the Executive and the judiciary that matters involving the expenditure of resources, as this does, are for the Government rather than the Lord Chief Justice. On reflection, we have accepted those points, so I have tabled Amendment 9A, which maintains the terms of subsection (1) of Amendment 9 but omits the other subsections.

I am very grateful to the Public Bill Office for its procedural help this morning, which has enabled us to put down an amendment on which we and the Government are agreed. I also thank the noble and learned Lord and his Bill team, particularly Emma Cotterill, for the assistance they and parliamentary counsel gave us in the wording of this clause last week and for agreeing to accept the amendment.

To summarise the amendment, we felt it extremely important that the Lord Chancellor be under a statutory duty to make support available, to add teeth to the requirement that the rules should have regard to the needs of the digitally excluded. This amendment achieves that.