Courts and Tribunals (Online Procedure) Bill [Lords]

Part of the debate – in the House of Commons at 3:28 pm on 16th July 2019.

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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.