Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Marks of Henley-on-Thames and Earl of Listowel

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, Amendments 5 and 13 in this group are in my name and those of my noble friend Lord Beith, the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick. Our amendments would incorporate in the Bill a requirement that the Government provide necessary assistance for parties or potential parties to online proceedings, both claimants and defendants, who need help navigating them.

At Second Reading, the Minister promised:

“All our online services will be accompanied by appropriate and robust safeguards to protect and support users and to ensure that access to justice is maintained. In pursuing this approach, we recognise that there will be people who will need help accessing a new digital system”.—[Official Report, 14/5/19; col. 1506.]


He promised that the Government would put in place a comprehensive programme of support, which he described as “assisted digital”, which would include help for court users by telephone, online or by other electronic means or face to face. I pointed out in that debate that the Briggs review had stressed the importance of ensuring that access to justice was not compromised by the introduction of Online Procedure Rules. The Briggs report described the success of the online court as “critically dependent” on providing digital assistance for those who could not cope with computerised procedures.

The Constitution Committee, under the section of its report headed “Access to Justice”, argued eloquently that, with 5.3 million adults in the UK who could be characterised as “internet non-users” and with 29% of people over 65 having “zero digital skills”, not including those with limited digital skills or limited access to computers or broadband, the Bill makes no provision to safeguard access to justice in the way promised by the Minister at Second Reading. The committee recommended that,

“the Bill places a duty on the Lord Chancellor to ensure that adequate provision is made to enable access to online proceedings for those with limited digital means, digital literacy, or general literacy”.

We agree. At Second Reading, not only the noble and learned Lord, Lord Judge, but the noble and learned Lords, Lord Thomas and Lord Mackay of Clashfern, and the noble Lord, Lord Faulks, called for a statutory commitment to digital assistance.

Once again in this group of amendments, I reject the assurance that it is safe to rely on an extra statutory statement of intention by the Government. That is especially true on a matter of such importance to the success of this reform in terms both of access to justice and of the rule of law. This commitment could and should be clearly expressed in the Bill in a way that would make it much more difficult for future Governments to resile from it. I make no apology for putting forward a similar point in relation to designated assistance to that which I made in relation to filing documents on paper.

Our amendments are comprehensive but flexible. Amendment 5 would introduce the general duty to provide assistance to a party or potential party to proceedings under Online Procedure Rules in accordance with the detailed provisions set out in Amendment 13. That amendment would give the Government flexibility on who should provide assistance and how. Designated assistance could be provided either directly through HM Courts & Tribunals Service, under contract with outside organisations, or through the voluntary sector. It would be for the Minister to determine what assistance could be provided by telephone, what by electronic means and what in person or by other reasonable means.

Our amendments are concerned with outcomes rather than structure; different providers might provide assistance in different but complimentary ways. However, in determining what assistance must be provided, and by what means, the appropriate Minister is to be subject to an overriding requirement that he or she should consider that assistance sufficient to enable the party receiving it to have a reasonable understanding of the nature of the proceedings, of the procedure under the Online Procedure Rules, and of how to access that procedure. The assistance will have to cover the completion of online forms—easy for lawyers and officials, perhaps, but often a nightmare for lay litigants. It will also have to cover the kinds of evidence that may be necessary to support or establish a claim or defence. Designated assistance should also be available about the requirements and meaning of the Online Procedure Rules. The requirement for assistance on the kinds of evidence required to establish a litigant’s case is particularly important and will save parties, and ultimately the courts, considerable time and trouble. Far too often, proceedings fail or are delayed because litigants in person are unaware of the kinds of evidence they are likely to need to establish their cases. Assistance with this aspect at an early stage of online proceedings may do much to help reduce costs, delays and frustration.

Those who may say that this is a step too far in favour of the courts service providing legal advice are missing the point of these reforms. The days are over when the court office tells litigants to go and seek the advice of a solicitor on generic issues such as this, for precisely the reasons expressed by the noble and learned Lord, Lord Thomas, in relation to hiring expensive lawyers. If online proceedings are to work well and improve rather than stifle access to justice, they have to be targeted on enabling litigants without lawyers to use the courts successfully. Perhaps at this stage I should declare the same interest as the noble Lord, Lord Pannick, in relation to my being a lawyer in offline courts. That is the point of these reforms. It will be achieved only if parties are provided with the kind of help our amendments would require.

An important further point is that for litigants whose first language is not English and who have no familiarity with English, interpretation or translation should be available to enable them to understand proceedings in a language familiar to them. Far too often, the need for lawyers arises even in relatively simple cases where intelligent and capable litigants whose command of English is limited are obliged to instruct lawyers simply because they receive no help in understanding proceedings in their own languages. I beg to move.

[The Earl of Listowel]

My Lords, I support this amendment. I am a patron of the charity Best Beginnings, which has produced an application that can be downloaded from the NHS store for mothers around the births of their children. We are finding that it is tremendously effective in reaching black and minority-ethnic mothers in particular, and mothers on the lowest incomes. This has been developed with all the royal colleges, and it has taken time, money and a real strong effort from the charity over many years to develop such a good product that reaches out particularly to families for whom English is not the first language. One of the key selling points of this app is the videos attached to it. Mothers will see people like themselves talking about what it was like to experience depression or how to breastfeed and communicate with your infant. They can identify with those parents.

There is a tremendous opportunity here to make something which is really effective and helps litigants in person and people whose first language is not English to understand how to approach these matters. The noble Lord’s amendments are very important to ensure that there is a commitment up front to producing the best possible means for families and others to engage with the digital technology available and to get the best outcomes for them and their families.

Of course, with a product such as this—I am not pushing this one specifically—there are back-end analytics through which one can tell in an anonymous way exactly how often it is used and who uses it, so there would be plenty of feedback on how well it is working. I hope that the Minister can give a reassuring answer to the noble Lord.