Courts and Tribunals (Online Procedure) Bill [HL] — House of Lords, 2019-06-10
Topic: Law and Crime
Jean Lesley Patricia Drake (Labour, Centre-left): 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 The rationale here is efficiency, referencing, "outdated processes … costly for both the Government and court users" A reliance on an efficiency rationale must not prejudice access to justice, but I fear that that is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.] It may be argued that protecting access to justice is implicit in the Bill, but I believe that Parliament needs greater confidence; it should not rest on judicial intervention or ministerial assurance to address concerns about ministerial powers. I recall the Minister addressing this House on the draft Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 in response to concerns that such fees would restrict access to justice. He asserted: "We believe that the mitigations we have put in place will properly protect access to justice for those seeking to bring claims".—[Official Report, 8/7/13; col. 85.] In July 2017, the Supreme Court unanimously held that, as the order prevented access to justice, tribunal fees were unlawful and must be quashed with immediate effect As many noble Lords have said, curtailing the use of oral hearings will have a particular impact on access to justice for vulnerable court users with limited digital means, digital literacy and general literacy skills. The Constitution Committee observed that, "the Office for National Statistics concluded that … 5.3 million adults in the UK … could be characterised as ‘internet non-users’" However, the committee noted that this figure may understate the problem. It said: "Such figures do not take into account those with limited digital skills, for whom basic browsing and messaging may be within their capabilities but the complexity of online legal forms may not" People with limited general literacy skills will be disadvantaged by proceedings conducted solely in writing without access to oral hearings. As has been referred to, the charity Mind reports how people with mental health problems are disproportionately likely to experience digital exclusion, struggle with digital engagement and are nearly twice as likely to experience legal problems The Government’s objective is to devise new rules that will focus on users being able to solve grievances and resolve their issues online at the earliest opportunity, as well as to encourage more people to resolve disputes before they reach the hearing stage. If the Government are right in their assumptions, which are still to be tested, many people will prefer to use online proceedings voluntarily and efficiencies will be gained. However, that is not compulsion; people should retain the right to seek access to an oral hearing. Ministerial powers with the potential to require people to choose between online proceedings or not pursuing legal claims carry the real risk of incompatibility with the principle of access to justice. Amendments 1, 6, 10 and 11 seek to address that risk.