Courts and Tribunals (Online Procedure) Bill [Lords]

– in the House of Commons at 2:40 pm on 16th July 2019.

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Second Reading

Photo of Paul Maynard Paul Maynard The Parliamentary Under-Secretary of State for Justice 2:51 pm, 16th July 2019

I beg to move, That the Bill be now read a Second time.

It is a pleasure to have the opportunity to move the Second Reading motion for this Bill. The Bill has already been considered in detail in the other place, and it follows the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018—also known as CATJAFS; we now have CATOP, the Courts and Tribunals (Online Procedure) Bill. This enabling measure is another important step in the transformation of our justice system.

Our judiciary, together with our courts and tribunals, is rightly regarded as among the finest in the world. To maintain and build on that reputation, it is critical that we position ourselves at the forefront of using new technology to improve the ease with which people can access justice. However, it is also clear that the modernisation of our court system must have ordinary court users at its heart. People need our new digital services to be accessible, understandable and easy to use, and that is what the Bill seeks to facilitate.

Of course, the Bill is only a part of our overall ambition. In total we are investing more than £1 billion in transforming Her Majesty’s Courts and Tribunals Service, making the justice system simpler to access, more convenient to use and more efficient to run. Our court reform programme will make the most of new opportunities that innovations in technology offer to revolutionise how we deliver justice.

Photo of Bambos Charalambous Bambos Charalambous Labour, Enfield, Southgate

While I welcome the new digital procedure in the courts, I am deeply concerned that it may result in some people having difficulty accessing the courts online. Can the Minister confirm that HMCTS will not close any more courts until a proper impact assessment has been carried out?

Photo of Paul Maynard Paul Maynard The Parliamentary Under-Secretary of State for Justice

I thank the hon. Gentleman for that point, which is rather separate from the Bill; this is an enabling measure to ensure that a procedure committee can be formed. However, I hear his point. We have no current plans to close further courthouses. We monitor their usage carefully. He will recall our previous debate about the “Fit for the future” consultation, setting out the considerations that will be brought to bear when looking at the use of our future estate, and I hope my answer to that debate will inform him.

The Bill will create an online procedure rule committee, which will be responsible for making online procedure rules for specified proceedings across the civil, family and tribunals jurisdictions. The committee will operate with the same powers as existing rule committees. We want to ensure that our online services and systems and the rules that underpin them are easily accessible and navigable routes for people to bring cases to court. To ensure that we build on and complement the digital working already in place, we intend to take a gradual approach to the implementation of these new online rules.

Photo of Bob Neill Bob Neill Chair, Justice Committee

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?

Photo of Paul Maynard Paul Maynard The Parliamentary Under-Secretary of State for Justice

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.

Photo of Victoria Prentis Victoria Prentis Conservative, Banbury

As we just heard, the Minister agrees with the Lord Chief Justice on all matters. Does he agree with him that court structures and buildings need considerable investment? Will he reassure me that digitalisation, which is welcomed by those of us who have used the courts a great deal, is not at the expense of the physical courts?

Photo of Paul Maynard Paul Maynard The Parliamentary Under-Secretary of State for Justice

We are cheerfully straying far and wide in this Second Reading debate, but I am more than happy to confirm that any innovation in online procedures does not in any way invalidate the concerns that many have about the state of our court estate. My hon. Friend will know that we are spending an extra £50 million this year on renovating courts. There is much more to do, and I am keen to see all buckets removed as soon as possible from the court system. I cannot promise that the online procedure rule committee is the remedy for that, but I assure her that I am working on it.

The new rule committee will be judicially chaired and comprised of three members of the judiciary, a member of the legal profession and two additional members, one of whom has experience of the lay advice sector and the other from IT design. While the new committee will be smaller than existing rule committees, the Bill provides the Minister with the power to amend the committee’s membership so that it has the flexibility to respond to changes in subject matter and technology.

Photo of Bambos Charalambous Bambos Charalambous Labour, Enfield, Southgate

On the membership of the committee, has the Minister given thought to including a disabled user and people from the legal profession—a solicitor, barrister or legal executive—to give input into the way that the changes in court procedures are carried out?

Photo of Paul Maynard Paul Maynard The Parliamentary Under-Secretary of State for Justice

It is one of the theoretical principles of governance that the moment we set up a committee, everyone thinks of extra people who should be on it. I hear the hon. Gentleman’s point. There is nothing in the Bill that prevents the composition of the membership from changing over time, as the online procedures that the committee is considering change. In addition, it can set up sub-committees to look at separate specific areas. The Bill is an enabling measure. As what we do changes, I am sure that the composition of the membership will also change, to include differing skillsets, but I hear what he says and thank him for his intervention.

The committee’s combined expertise will ensure that our rules framework supports online services, while offering a straightforward, accessible and proportionate experience to those who are accessing justice. These powers mirror and do not exceed those provided in respect of the civil, family and tribunal procedure rules.

On Third Reading of the Bill in the other place, peers expressed their support for and enthusiasm about the Bill and for the Government amendments made throughout its passage. We have listened to and taken on board many of the points raised during the Bill’s passage through the Lords and have amended the Bill accordingly. In particular, the Bill now reflects the Government’s renewed commitment on two subjects.

First, people who may need support to participate online will be offered it. The Bill now makes explicit the duty to provide appropriate and proportionate digital support. The Bill also makes it clear that, before rules are made, the Lord Chancellor and the committee will have regard to the needs of those who will require digital assistance. This makes clear the Government’s commitment to an accessible justice system that supports the needs of all our users.

Photo of Wera Hobhouse Wera Hobhouse Liberal Democrat Spokesperson (Justice), Liberal Democrat Spokesperson (Environment and Climate Change)

Online procedures will not compensate for the under-investment of this Government in physical courts, which has led to a number of IT failures, the crumbling courts estate and delays in cases being heard. Does the Minister agree that financial cost cutting should never come before the accessibility of physical or digital justice systems?

Photo of Paul Maynard Paul Maynard The Parliamentary Under-Secretary of State for Justice

In the grand philosophical scheme of things, I probably agree with the hon. Lady, but the purpose of the Bill is to ensure, as we move online, that the rules are common across civil, family and tribunal procedures. To my mind, it is about ensuring, as we move online, that they operate to a common procedure in order to harness the user experience wherever possible, and that is what this Bill seeks to do.

Secondly, the Bill clearly recognises that some people may not want or be able to use our online services, even with support, so it makes explicit provision for the availability of non-electronic channels, which will of course include paper. That was always the Government’s intention, and we have now made clear the provision for users to choose a paper option throughout proceedings.

We are clear that this Bill will not prevent anyone from accessing justice; rather, it will improve access to justice by opening up a new route of access and creating a swifter, easier alternative for litigants. The reforms I have discussed are part of our important manifesto commitment to reform our courts and make them fit for the 21st century. For those reasons, I commend the Bill to the House.

Photo of Yasmin Qureshi Yasmin Qureshi Shadow Minister (Justice) 3:01 pm, 16th July 2019

As a general rule, the adoption of new technologies in our justice system is something to welcome. It should, if done carefully, lead to better, more agile courts that increase access to justice. Labour recognises the need for an online procedure rule committee, given the increased use of digital courts. Our aim now is to focus on amendments that improve the proposed committee and ensure that any rules strengthen, rather than weaken, our hard-won rights.

Although digitisation is necessary, it needs to be done with diligence and accuracy. Most importantly, it must not be done simply to achieve savings. Given that digitisation will have a substantial impact on our justice system, it is incredible that there still has not been any proper, publicly funded academic research into the impact of digital courts on access to justice. Instead, the Ministry of Justice seems happy to shell out huge consultant fees—over £60 million last year—and roll out untested and ad hoc changes.

In 2018, the House of Commons Public Accounts Committee expressed concern about the scale and pace of the changes the Ministry of Justice was attempting. It expressed little confidence in the capacity of Her Majesty’s Courts and Tribunals Service to deliver this hugely ambitious programme, not least because it found that Her Majesty’s Courts and Tribunals Service had failed to indicate

“what the new system would look like.”

That is a vital point and one that this Bill fails to deal with.

Far too often in the last year, the changes pursued by the Ministry of Justice have had a vague direction, instead of a particular, definable endpoint; after all, we have had at least seven Secretaries of State for Justice in the last nine years. The only consistent characteristic of these reforms seems to me to be related more to ideology than judicial policy: the desire ceaselessly to cut the budget year on year. Again, in the last nine years, the Ministry of Justice has had the highest budgetary cuts in comparison with other Departments.

The Law Society has noted the backward illogic of the reform programme, criticising the decision to close courts

“before the technology that is intended to replace the need for physical hearings has been tested, evaluated and proven to work.”

With half of our courts estate already sold off since 2010, we now have little choice but to move towards online courts. Finance appears to have triumphed over sense in deciding what to do in relation to justice.

On the current Bill, it is notable that the Government have chosen to go well beyond the relatively modest recommendations of Lord Justice Briggs in 2016. Further, instead of piloting individual areas, the Government’s desire appears to be to digitise whole swathes of the courts system, with limited oversight. Amendments put forward in the other place tried to ensure that the piloting of new stages would be mandatory. That still seems a reasonable measure to ask for, bearing in mind how many internet breakdowns we have had in the court system in the last few months. It is really important to try out a pilot scheme to see how these things work. However, the Government do not appear to want to do this.

Another matter of importance in this debate is the question of whom the Bill authorises to make future decisions. Currently, it states that the relevant Minister may require amendments to be made, with little clarity about exactly what would justify such a requirement. The suggestion discussed in the other place was that the committee be allowed to decline the Minister’s request, and we think that was a very relevant and valuable suggestion. Although that did not pass, the amendments to clauses 9 and 10 provided some balance on the power of the relevant Minister, as they must seek the concurrence of the Lord Chief Justice.

While we welcome those important provisions, we believe that the Minister should not be the final arbiter in deciding whether the procedure rule committee makes a rule that he or she wants; that should ultimately be within the province and remit of the procedure rule committee. What is the point of having a committee to set out rules if the Minister is going to say, “No, I want you to change this”? If we have selected people to make the rules, they should be the ultimate arbiters of what the rules should be. That is very important because the Executive and Ministers cannot be allowed to get away with dictating what they want. While we accept that there needs to be a balance between a Minister and the committee, we urge the Government to reconsider and rethink this aspect.

At the moment, it is unclear how far Parliament will be able to scrutinise the rules put forward by the committee. Given that the online procedure rule committee will have the power significantly to alter the way many people engage with our justice system, it seems reasonable that an elected body should also have a say in this matter. As was highlighted by the Bar Council in relation to the Courts and Tribunals (Judiciary and Functions of Staff) Bill in 2018, this Government frequently adopt a “drip-feed”—its word—approach to change in order to avoid a full debate and proper legislative scrutiny of their court plans. That cannot be allowed to happen through this Bill. My counterpart in the other place suggested adopting the affirmative resolution procedure for clauses 8 and 9. That seems patently sensible, as it would provide parliamentary oversight of potentially major changes to our justice system.

The make-up of the proposed online rule procedure committee also merits consideration. Our amendment in the other place was to enlarge the committee to ensure representation from each of the legal professions—the Bar, the Law Society and legal executives—but, again, that was denied. That is really strange, bearing in mind that the civil procedure rule committee has 16 members, the family procedure rule committee has 15 members and the tribunal procedure rule committee has nine members, while the number here is much lower.

I heard what the Minister said in his opening speech to my hon. Friend Bambos Charalambous. I may have misheard him, but the Minister suggested that there is nothing in the proposed legislation to stop an increase in the composition of the committee. That, however, is not accurate. The committee says that currently it does set out how many members there should be or who they should be. Therefore, unless the number and composition of committee members are put into primary legislation, we cannot just change it.

In my discussion with the Minister yesterday on the telephone, I explained the importance of having a barrister, a solicitor and a legal executive on the online procedure rule committee. When I practised at the Bar, solicitors would send me instructions on all the procedural parts of the case, such as starting the petition, issuing the summonses or laying the charges. All those procedural matters were undertaken by legal executives and solicitors. Barristers would often just turn up at court to speak and do the advocacy part. Therefore, to exclude from the committee the very people involved in the procedural side does not make any sense. I am sorry, but I am not reassured by the Minister that the committee can somehow change itself. Again, I may have misheard. It is important for the legislation to spell out that there will be a member of the Bar, a solicitor from the Law Society and a legal executive. That is really important in ensuring the system works, because they are the people involved in all the procedural aspects.

The amendments we supported and argued for in the other place were also supported by Mind and the Law Society. I continue to feel that including non-lawyers with experience of disability and digital exclusion would significantly reduce fears that the Bill fails to properly ensure access to justice. We tried to promote gender balance on the committee, again without success. This would be an important measure. It is no secret that power in our court system resides with a group who are highly unrepresentative of our national population. We think provisions to require gender balance would rectify some of the imbalance and be an important step towards increasing diversity in our justice system. What assessment has the Minister made of the make-up of the committee in terms of both its composition and size? The Minister and I discussed this issue yesterday on the telephone.

We also raised concerns that the Bill could lead to digitisation by default. Whether proceedings are criminal, civil, tribunal, probate or family in nature, there are good reasons to feel that making digital the default option will, in many cases, restrict or entirely remove access to justice. We believe that both sides involved in a case should be able to decide on whether online or traditional measures are used throughout the case. Again, I had an encouraging conversation with the Minister on that point yesterday, but I would like to see proper guarantees in the Bill to ensure that both litigants are provided with the choice of using traditional methods and that this option is made very clear and easily available, so that most people do not feel that they should be going down the online route or that the in-person route is in any way exceptional as opposed to the norm.

Photo of Bambos Charalambous Bambos Charalambous Labour, Enfield, Southgate

My hon. Friend mentions the digitally excluded. For some people, only a face-to-face physical hearing will do. That leads to the point about insufficient weight or prominence being given to legal advice or representation, because that may well influence what decisions people make when they are faced with a choice about what to do with regard to digitisation. Does she agree that for everyone to be treated fairly and equally, not being forced down the path of digitisation is of the utmost importance?

Photo of Yasmin Qureshi Yasmin Qureshi Shadow Minister (Justice)

Absolutely. We can imagine a lay person being told to follow, or being pushed towards following, the online procedure. They are not going to be told that the paper procedure or turning up is just as doable and straightforward. I will come on to this point later, but ensuring that people have access to legal advice is even more important with the introduction of digitisation and there seems to be nothing in the Bill to deal with that issue.

Sadly, in many areas of the reform programme, digitisation has frequently been imposed from the top down. Clause 4 recognises the Government’s duty to

“make support available for digitally excluded people” in so far as the Lord Chancellor feels it to be “appropriate and proportionate”. It is vital that support is not just there but properly funded and—importantly—sufficiently advertised. Even when there are mechanisms available to provide support, we worry that all too frequently they are poorly promoted. They work to show evidence of action, while providing little meaningful aid to those who need it. Since it was set up in February 2018, a helpline for those who need help to use video links in court has averaged less than one call a day. The Public and Commercial Services Union has questioned how widely HMCTS would advertise alternatives to digital justice and I share its concern.

Another point we are concerned about relates to clause 1(3)(d), which refers to the use of

“innovative methods of resolving disputes.”

Despite the probing of my counterpart in the other place, it is still unclear precisely what that means. Greater clarity on the wording would be useful. We are very concerned that the Bill does not lead to digital justice becoming an inescapable default setting across the justice system.

Access to legal aid and legal advice is very important, and it is regrettable that the Bill is pretty silent on that. The Bill should include the ability for those who go through the online procedures to at least be able to make a phone call to access legal advice. That phone call should not be a premium number or a chargeable number; it should be a free number, so that people can access proper legal advice. Many people do not have contract phones, with free mobile phone calls. A lot of people are still on pay-as-you-go, so they need a system that is free to use. It would therefore help if the Minister was able to ensure, when he responds to the debate or in Committee, that the Government deal with that point.

I emphasise that point because of my own personal experience as a practitioner. I can remember being in courts, whether civil or criminal, which were attended by unrepresented people. None of us gave legal advice as such, but lawyers and solicitors would at least provide them with some guidance, a signpost and somewhere to go. When we have online courts and people are sitting at their computers, they will not have human advice, guidance and signposting. It is therefore crucial that such people can access legal advice, even on a phone, so I ask the Government, the Ministry of Justice and the Minister to think about that.

Let me recap a few issues that really concern us, which I hope the Minister will address in his response. First, so far no rational reason has been produced as to why the committee needs to be so small. Secondly, how will he ensure that the rights of disabled people are properly represented in the committee? Thirdly, how will he ensure that there is real parliamentary oversight of potential major changes to our justice system? I would really appreciate answers to those questions.

Finally, I reiterate that fair and equal access to our justice system needs to be at the justice system’s heart. It is well known that the most stable countries in the world are those that have the best legal and judicial systems, where people feel that they will get justice in the end. Therefore, what will the Government, the Ministry of Justice and the Minister do to ensure that people are protected, that no harm comes to them and that justice is properly and fairly accessible to all those who need it?

Photo of Bob Neill Bob Neill Chair, Justice Committee 3:21 pm, 16th July 2019

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.

Photo of Wera Hobhouse Wera Hobhouse Liberal Democrat Spokesperson (Justice), Liberal Democrat Spokesperson (Environment and Climate Change)

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?

Photo of Bob Neill Bob Neill Chair, Justice Committee

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.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control) 3:28 pm, 16th July 2019

It is a pleasure as always to follow the Chair of the Justice Committee, 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, 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.

Photo of Jim Cunningham Jim Cunningham Labour, Coventry South

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.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

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.

Photo of Imran Hussain Imran Hussain Shadow Minister (Justice) 3:38 pm, 16th July 2019

Let me begin by drawing attention to my registered interest as a member of the Bar.

As the House heard from my hon. Friend Yasmin Qureshi, we support the establishment of an online procedure rules committee and the goal of modernising our courts and tribunals. However, we believe that new technologies must be used in our courts only when they have been proved to improve access to justice and engagement with the courts system, and we are concerned about a number of other issues raised by the Bill.

Concerns have been expressed by my hon. Friends the Members for Bolton South East, for Enfield, Southgate (Bambos Charalambous) and for Coventry South (Mr Cunningham) and by the Chair of the Justice Committee, Robert Neill, who, in his usual fashion, has been very fair in his analysis of the Bill and highlighted and accepted that we in the Opposition will have natural and genuine concerns.

There has not been as much participation in the debate on the Bill today as we might have expected so my task in summing up the debate has been made slightly easier, but none the less I shall seek to go through our main concerns. I reiterate that we support an online procedure rule committee and the goal of modernising our courts and tribunals, but we do have concerns.

First, digital exclusion has been referred to by a number of Members, and we are concerned that the measures in this Bill could without proper protections exclude those with poor digital literacy from our justice system. Vulnerable people in particular and those with English as a second language are disproportionately represented among defendants, and the Law Society has stated that insufficient weight and prominence will be given to the need for legal advice and representation. Further stoking these fears is the catastrophic failure of the MOJ IT system earlier this year, which, in the words of the Criminal Bar Association put our courts “on their knees” by locking legal practitioners out of their secure email services, leaving them unable to access wi-fi and forcing the adjournment of trials. This is an illustration of technology taking a turn for the worse and how that can impact our justice system.

We are also clear that those using the courts must be able to opt out of a digital proceeding and instead choose a traditional court procedure to prevent them from being digitally excluded, particularly in the light of the fact that there is little research into the different justice outcomes of different procedures and the Government’s record of lacking research, piloting or consultation, which has meant that many of their existing digital reforms have led to delays, a worsening experience for court users and reduced access to justice.

The make-up of the OPRC must be representative; that point was also made by a number of speakers. Its make-up must be representative in particular of the legal profession, as it has the power to dramatically alter the processes in court. It should therefore include at least one representative from each of the solicitor, barrister, legal executive and magistrate professions. Only through this can the committee access the experience of the different legal professional users; only they can see the system as professionals and through the eyes of the client to deliver the best result when creating new rules. While the Government have ceded ground on this issue in the Lords by increasing the number of representatives, which we welcome, they must not seek to reverse this position in Committee, and they must go further to ensure better legal representation on the committee.

Finally, we are concerned about the way in which the Justice Secretary as Lord Chancellor sought to exercise his powers, as the Bill entered the Lords without any real safeguards on his powers in what are now clauses 9 and 10. The Lords Constitution Committee declared its own fears that the Bill conferred broad powers on the Lord Chancellor, and while the Government were defeated and these powers were curbed, we are clear that they must not seek to roll back this progress in Committee. It is right to involve the Lord Chief Justice or Senior President of Tribunals, as the Constitution Committee also states, to ensure fair and efficient administration of the justice system for which they are responsible.

Dramatically reducing the content of my speech in the light of the debate today, I say in conclusion that, while we support the creation of an online procedure rule committee and support the goal of modernising our courts and tribunals system to bring it into the 21st century, we still have some concerns about the Bill, as I have outlined. I hope that the Minister will address those points, so we will not seek a Division today. However, we will in Committee push for amendments to ensure that hard-won rights are protected, that the OPRC is representative of the legal profession and that, in the 70th year of Labour’s landmark introduction of legal aid that made access to justice an achievable goal for everyone, the ability to access justice is not further eroded by measures in the Bill.

Photo of Paul Maynard Paul Maynard The Parliamentary Under-Secretary of State for Justice 3:45 pm, 16th July 2019

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 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.

Photo of Bob Neill Bob Neill Chair, Justice Committee

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.

Photo of Paul Maynard Paul Maynard The Parliamentary Under-Secretary of State for Justice

That is an innovative way to facilitate that speediness.

The shadow Minister, 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.

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.