Courts and Tribunals (Online Procedure) Bill [HL]

Committee

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

Amendment 1

1: Clause 1, page 1, line 9, leave out “or require”

My Lords, I shall speak also to Amendment 6, which is in the first grouping. On Amendment 1, HMCTS has acknowledged that its assisted digital programme will not be sufficient to support everybody to engage with online processes and has therefore made a commitment that digital services will not be mandated. In relation to the reform agenda, it has been stated that HMCTS will continue to make provision for litigants to continue to use paper documents in accessing family court proceedings. It is therefore concerning that Clause 1(1)(a) would allow the Online Procedure Rule Committee to make rules requiring certain proceedings to be initiated electronically, and that Clause 1(1)(c) would allow rules requiring parties to participate electronically.

The purpose of this amendment is to make it crystal clear that people with particular vulnerabilities will not be required to participate in court proceedings, particularly family proceedings, in a digital way. I think the Government have been too optimistic when looking at the proportion of the population that is digitally excluded. The figure they have is that 18% of the population do not use computing equipment, but I would argue that that number is far too low. When one looks, for example, at the population using internet banking or similar sensitive issues, it is only 56%. I believe it would be helpful if it were clearly stated in the Bill that there will not be an expectation for parties to engage with any family court proceedings online and that paper channels will always be available to anyone who chooses to use them.

Amendment 6 is also part of this group. Clause 1(6) would allow the Online Procedure Rule Committee to set out circumstances under which proceedings should be transferred to a full court hearing, and therefore no longer come under the OPR. Although it may be useful to provide some clarity as to when cases can be transferred, I would be concerned if this resulted in any restriction of judicial discretion, and that any individual case could be transferred to a court hearing if it was required. The purpose of Amendment 6 is to make this point explicit in the Bill. I beg to move.

My Lords, Amendment 3 is in my name and in the names of my noble friend Lord Beith and the noble and learned Lord, Lord Judge. This amendment seeks to have the Bill offer a choice to parties between filing forms and other documents under the Online Procedure Rules by electronic means or submitting them on paper. At Second Reading, the Minister said that the Government recognised,

“that not all court and tribunal users will be able to engage online and so paper routes will continue to be available for those who need them”.—[Official Report, 14/5/19; col. 1506.]

The noble and learned Lord has repeatedly said that litigants will have a choice between filing documents electronically and filing paper documents, the intention being that paper documents will be scanned into the online file and available thereafter to be accessed online if desired. That promises a perfectly acceptable arrangement, but I suggest that we need a guarantee that it is going to happen.

For many, this is a matter of considerable importance. While no doubt the electronically literate with access to computers and the internet will choose to produce and file documents online, Lord Justice Briggs, as he then was, recognised in his review the difficulties that would face litigants who are unable to use or access computers. Such difficulties are compounded by the facts that for many there are serious financial challenges in accessing online resources, and that in many areas of the country access to acceptably fast broadband is unavailable. In spite of some progress in this area, I interpose that our inability to guarantee fast broadband across the United Kingdom is shocking.

If the Government intend to ensure a choice for parties between online and paper documents, there can be no good reason for them failing to spell that out in this legislation. Whatever the Government’s good intentions may be, there is no guarantee that a future Government will honour a commitment that is not on the face of the statute. This is not a matter where a statement of intent by the Minister will satisfactorily safeguard future litigants. There can be no downside to incorporating the choice in the Bill.

My noble friend Lord Beith will introduce Amendment 4, in my name as well as his, which has the simple purpose of incorporating into the Bill an opportunity for parties to the litigation to opt by agreement to litigate by the conventional rules rather than the Online Procedure Rules. The Constitution Committee pointed out that the effect of Clause 3(1) would be that the Bill,

“thus supplies a legal basis for the displacement of conventional proceedings by online proceedings irrespective of the wishes of the parties to the claim”.

Our Amendment 4 would alter that in cases where the parties agreed to proceed by way of conventional proceedings. In particular, the availability of such an option might have substantial significance in cases where both parties wanted an oral hearing but where the application of Online Procedure Rules might remove the opportunity to have one.

The noble Lord, Lord Ponsonby, has explained that his Amendment 6 would retain judicial discretion as to whether a conventional court hearing was necessary in individual cases. The amendment from the noble Lord, Lord Beecham, would go further and permit the court discretion in cases of disagreement between the parties to decide which set of rules should govern the proceedings. I support the principle that, where the parties are not in agreement, the court should decide. Where parties agree, though, I suggest that as a matter of principle their agreement should be honoured. That is particularly important on the necessity for a hearing because I take the clear view, as human rights lawyers always have, that the right to a hearing in cases of serious disputes, even affecting small sums of money, should be unfettered.

My Lords, I can easily follow my noble friend because he has said much of what needs to be said. With Amendment 4, I am trying to explore what the circumstances are in which it would be possible for people to revert to the traditional procedure rather than the online one. I am in favour of the Bill being introduced—I have called for it on many occasions and strongly support it—but the Constitution Committee has pointed out that it raises some issues that need to be clarified and sorted out, and this is one of them.

What are we trying to do here? Are we trying to create an online system that is advantageous, beneficial to the parties and much less cumbersome as well as saving time for the judicial system? Are we then going to encourage people to make use of it in the expectation that they will? The piloting of more limited projects in this area indicates that we have good reason to be optimistic. So is that what we are doing, or are we setting up a system in which it will be almost impossible to insist on conventional court proceedings even in circumstances where both parties think that is right? The question then arises whether you could have circumstances where one party to a dispute could insist, even when it was to the detriment of the other, that the more cumbersome procedure was used. I would be interested in the Minister’s comments on that question. Where both parties are quite clear that there are good reasons for a hearing in court, why should they be precluded from having one if our assumption is that this is a system that would be attractive to users and make the court system function more effectively, particularly in large numbers of money claims of relatively modest size?

One of the ambiguities that surrounds this Bill is what it is really for—whether it is the route to a very wide use of online systems or whether it will be confined in this way. Different statements at different stages of the Bill’s progress have had both a narrow and a wide interpretation. Although Briggs referred to money claims, I think there are wider expectations that make these general issues rather important.

My Lords, I support what has been said by the noble Lords, Lord Marks and Lord Beith. I declare an interest as a barrister practising in offline courts. That was the reason I did not participate at Second Reading.

The Briggs report has been referred to, which said at paragraph 6.13 that there are persons,

“living mainly in rural areas with no access to broadband, those who cannot afford a lap-top or desk-top computer, and those who for a variety of understandable reasons regard moving to computer after a life spent communicating on paper a step too far”.

I agree with previous speakers that it is unacceptable that the Bill says nothing about such potential litigants. The Minister accepts that their interests must be accommodated—they need to be accommodated in the Bill.

That is the view of your Lordships’ Constitution Committee, on which I served with the noble Lord, Lord Beith, and the noble and learned Lord, Lord Judge. Our report said at paragraph 16 that, against the background of what was said by Briggs,

“forcing people to choose between online proceedings or not pursuing legal claims at all risks excluding large numbers of people from the justice system”.

For that reason, your Lordships’ Constitution Committee has recommended that the Bill must place duties on the Lord Chancellor to ensure that adequate provision is made to enable access for the sorts of people I have mentioned.

My Lords, Amendment 10 in my name gives the right to respond, in addition to the person initiating the claim, to choose whether the new procedure applies. Amendment 11 then provides that, in the event of disagreement between the parties, the relevant court or tribunal will determine which course to follow—the matter just referred to by the noble Lord. Indeed, I concur with all the issues raised by the three Members of your Lordships’ House who have spoken already in this debate.

I confess that my drafting is somewhat less than elegant, but this is an important issue, given the difficulty that many will have with an online process, stemming from unfamiliarity with the process or medical or mental health issues. The report of the Constitution Committee of 7 June, to which reference has just been made, raises serious concerns about the process that go beyond the matters referred to in these amendments but are most apposite to them.

The committee declares:

“It is unsatisfactory for legislation to be drafted in a way that fails to acknowledge the fundamental right to a fair hearing, both at common law and under the European Convention on Human Rights. While ministers may have no intention of using the powers provided by the Bill to undermine the right to an oral hearing, it is incumbent on Parliament to frame the powers it confers in a way that acknowledges and respects fundamental constitutional principles”.

The committee expresses its concern that,

“the Bill confers broad powers on ministers to limit oral hearings in a much wider range of cases than is currently envisaged”,

and suggests:

“One way to secure appropriate control over this power would be to require not just consultation with the Lord Chief Justice, or the Senior President of Tribunals where appropriate, but their concurrence”,

in those proposals. In other words, consultation has to be taken seriously in these circumstances—perhaps more seriously than in most, given what is at stake here for the workings of our legal system.

My Lords, I support the intentions of Amendments 1 and 6 in the name of my noble friend Lord Ponsonby and Amendments 10 and 11 in the name of my noble friend Lord Beecham. In summary, they remove the potential requirement that people must choose between online proceedings and not pursuing legal claims, strengthen judicial discretion on the need for a full court hearing and protect the right of parties to proceedings to seek oral hearings.

It is right that courts and tribunals be modernised, but in utilising new technologies access to justice must not be undermined. The impact assessment notes that the conventional economic rationale for government intervention is based on efficiency or equity arguments. The rationale here is efficiency, referencing,

“outdated processes … costly for both the Government and court users”.

A reliance on an efficiency rationale must not prejudice access to justice, but I fear that that is the Bill’s potential impact. Clauses 1 to 3 give Ministers extremely broad powers to replace traditional proceedings with online ones, allowing for the possibility of online proceedings being the only option in the absence of Clause 3 regulation permitting a person to choose between online or conventional proceedings.

The Minister can give assurances as to the Government’s intentions but they are not binding over time. The Government argue that additional safeguards are not needed, but the Online Procedure Rule Committee’s powers will be far greater than those of any existing rule committees. Indeed, concerns about access to justice are heightened because the Bill confers powers to limit oral hearings in a wider range of cases than was envisaged by Lord Justice Briggs’s recommendation to introduce an online court to resolve low-value civil money claims. I quote the noble and learned Lord, Lord Judge, at Second Reading:

“Effectively, this Bill covers all non-criminal proceedings … this is a serious, wide-ranging Bill with wide-ranging consequences”.—[Official Report, 14/5/19; col. 1511.]

My Lords, the Government’s view was expressed at Second Reading, but Amendment 1 seems to strike at the heart of what is required. Clause 1 states,

“may authorise or require the parties”.

to use electronic means at hearings. That suggests the possibility of compulsion that would not exclude any section of the community. The amendment I find slightly difficult is Amendment 3, which states,

“may be filed by electronic means or on paper or a combination of both at the choice of the party”.

I would have thought that it should be one thing or the other. I imagine that it might cause confusion if you have an electronic bit and then a bit on paper stuck in, unless there is a clear way of showing in the electronic bit that there is another bit to follow. It is that part of the amendment that I find slightly difficult.

My Lords, I am reminded that these provisions will apply to family law procedures. Of course, it may improve the resolution of family issues, which will benefit the children involved, but there is a concern that it may make resolution more difficult and thus adversely affect the children in those families. Has the family test been applied to the Bill? I do not see that in the accompanying notes and perhaps it is not appropriate to apply the family test to it. I would be grateful if the Minister could tell me whether the family test has been applied.