Courts and Tribunals (Online Procedure) Bill [HL]

Lord Pannick Excerpts

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

[Lord Beith (LD)]

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.

[Lord Pannick (CB)]

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.

[Lord Beecham (Lab)]

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.

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[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I will speak to Amendments 1, 3, 4, 6, 10 and 11, which relate to the operation of the online procedure and how we can ensure that people using it are not disadvantaged. I intend to turn first to Amendment 3, which covers whether a user can choose between digital and paper channels. Then I will move on to Amendments 1, 4, 6, 10 and 11, pertaining to the online procedure and the matter of choice.

Amendment 3 suggests that claimants and respondents should have the choice of whether to use paper or digital channels when engaged in the simplified online procedure. I can confirm that the Government agree with this point, and indeed there is provision for this already. Essentially, where the online procedure comes into place, it will be possible to access it either by way of the digital portal or by way of a written document of claim. Other written documents may also be used when employing the simplified online procedure. The intention, which already applies to some of the digital procedures we have in place for small debt, is that the document will be scanned into the system and will therefore be part of the process. The idea is to ensure that parties are not excluded from the simplified procedure that will be brought in under this online procedure simply because they feel unable to employ, or are incapable of employing, the digital process itself. However, there is a distinction between that and the situation in which, when dealing with debt claims of under £25,000 for example, a claimant or any other party would be allowed to opt either for the simplified procedure that will be promulgated under the online procedure or to have recourse to the existing Civil Procedure Rules and the more complex procedure that pertains there. It is not intended under the Bill that claimants should have an option between the simplified procedure and the more complex procedure. I shall come on to develop that a little more in a moment.

Perhaps I may take this opportunity to confirm that we have no plans to remove the availability of paper channels for citizens under the remit of the Online Procedure Rule Committee. Of course, it is our intention to create a digital service that will be easy to access and use—indeed, so easy to access and use that it becomes the default choice for the majority of users. We recognise, however, that not everyone will be able to use it, or wish to proceed with that digital choice without support. For that reason, a paper route will remain open.

We want to be clear that users can expect an equity of service, regardless of whether they proceed with a digital approach or a written claim. Where different parties choose different channels, we will seamlessly join them together by means of a scanning and printing service, so users who want to send and receive papers will still have that choice—they will not need to resort to the online portal. To that extent, I offer my assurance that paper channels are still available and will be available under the Online Procedure Rules. The Bill will do nothing to remove them.

[Lord Pannick]

Does the Minister accept that nothing in the Bill guarantees that? He gives us an assurance, but surely it would be better to write that into the Bill.

[Lord Keen of Elie]

If every time we legislated we decided to guarantee everything from A to Z, we would end up with very long Bills. The position is this: there is the ability to proceed by way of the paper process. Nothing prohibits it, there is no inhibition on that process, and there is no intention to introduce such an inhibition.

Turning to Amendments 10 and 11—

[Lord Keen of Elie]

No, I do not accept the amendment. What I say is that there are existing means by which we can assure people that they can proceed by way of a digital portal or by way of a written claim, which will be scanned and taken into the online procedure process once it is up and running.

[Lord Pannick]

I am very grateful to the Minister for giving way again, but I must press him. We are dealing here with fundamental issues of access to justice. Surely if the Minister recognises that paper procedures must always be available to litigants, it is absolutely vital that the Bill says so.

[Lord Keen of Elie]

I am afraid I cannot accept that. There is nothing in the Bill that would prohibit the employment of such a paper process once the online procedure is up and running. Indeed, the noble Lord will appreciate that, when it comes to the making of rules by the relevant committee, the process will involve the judiciary as well as the Executive.

We have heard reference already to the idea of consultation, and we will in due course look at amendments to the Bill that seek to shift the question of consultation to one of concurrence. Therefore, we will be in a position to rely on not only any decision-making on the part of the Executive but also the contribution of the judiciary to how it sees that these processes should best be applied in the interest of all litigants. I emphasise “all litigants” because, when we seek to simplify the court process and reduce its potential cost, we are doing so for the benefit of litigants in general. We will come to concurrence and consultation later.

We must bear in mind that this is not a case of Ministers dictating what the relevant rules will be. It is a case of the Executive setting out the machinery by which a rule committee can come into place and set out appropriate rules and regulations for the online procedure, in consultation with the judiciary and with its input, and potentially with its concurrence.

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[Lord Pannick]

My Lords, I share the concerns behind these amendments. There are plainly specific types of proceedings which it is wholly inappropriate to determine online. Perhaps the strongest example is any proceedings relating to the welfare of children. In my view, it is inconceivable that it would ever be appropriate for such matters to be so determined. Yet the powers under the Bill are quite sufficient to allow that to happen, because Clause 1(1)(b) allows for rules which may authorise or require proceedings,

“to be conducted, progressed or disposed of by electronic means”.

This is just one of the many examples of the Bill, which is wholly desirable, failing to include sufficient limitations to preclude the use of these powers in ways that we would all accept are inappropriate.

It may be that the proper answer to this concern is for the Government to support the amendment we are coming to in the name of the noble and learned Lord, Lord Judge. That would ensure that these powers cannot be used without the concurrence of the Lord Chief Justice. I respectfully suggest that the Minister needs to recognise that there is a problem here. The Bill is so broadly drafted that it will allow the exercise of powers in ways that we would all accept are inappropriate.

[Lord Thomas of Cwmgiedd]

I have one question for the Minister. There is an outstanding consultation paper on the housing court, looking at whether we should bring together all the various complicated forms of housing legislation before one tribunal. How will taking out one of the parts of what would be a housing court matter affect it, when what we are dealing with is the procedural system to be applied rather than detailed means of service and hearings, which is what this is about? It would be helpful to have that explained.

We would be rash to assume that paper service of proceedings comes to people’s attention more readily. Certainly, we have found that if you want to get people to attend jury service, or some other things, it is much better to send them a text rather than a brown envelope; they normally respond to texts. That is modern thinking. I think noble Lords will find that people more readily respond in that way. This is much more a detailed matter of procedure.

[Lord Pannick]

Does the noble and learned Lord accept that the powers in this Bill cover far more than process? As I have indicated, Clause 1(1)(b) is concerned with rules as to how proceedings are,

“conducted, progressed or disposed of”.

[Lord Thomas of Cwmgiedd]

I accept that, but I think it is part of the terminology used. That is why, in the intervention I made earlier, I said that it is important to appreciate the difference between a simplified procedure and the way the court works. Unfortunately, despite everything the noble and learned Lord, Lord Woolf, did to try to simplify civil procedure, the White Book has grown from 2,000 to 3,000 pages.

We need to go back. It is an unfortunate tendency of lawyers to ossify everything. This is an attempt, using electronic means, to make access to justice easier and to simplify it, but we plainly need safeguards. I am sure the best safeguard of all is the concurrence of the Lord Chief Justice, which I am sure would solve most of these problems yet allow access to justice to use 21st-century methods to make it cheaper and—if I may, with some trepidation, say so in this House—to conduct litigation without the need to deploy expensive lawyers.

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Ever since that change, we have had to try to maintain the wall which keeps the Lord Chief Justice safe from being drawn into political decisions and, perhaps even more importantly, have had to try to keep the Lord Chancellor and Secretary of State for Justice on his or her side of it. There have been a number of instances—including, paradoxically, television in courts—which have shown that, to put it at its lightest, the system has not properly bedded down in the way that was intended so that decisions about the fair operation of the courts clearly cannot not be made without the concurrence of the Lord Chief Justice. The case which the noble and learned Lord, Lord Judge, has made is very powerful, and I hope the Minister will recognise that this is about not political decisions but the proper role of the Lord Chief Justice.

[Lord Pannick]

My Lords, like the noble Lord, Lord Beith, I have added my name to the amendment tabled by my noble and learned friend Lord Judge to ensure that the powers which are being conferred on the Lord Chancellor can be exercised only with the concurrence of the Lord Chief Justice. My reason for doing so is essentially the same as that of the noble Lord, Lord Beith, and my noble and learned friend Lord Judge: the powers conferred by the Bill are exceptionally broad and there need to be adequate controls.

The Minister’s response before this afternoon essentially amount to, “Don’t worry—there are sufficient means through committees that will ensure that these powers are never used inappropriately, far less abused”, but as my noble and learned friend Lord Judge mentioned, the Lord Chancellor has the power to appoint the majority of the committee. The most effective means of ensuring that these powers are used only in an appropriate manner is to ensure that they may be exercised only with the concurrence of the Lord Chief Justice. As the Minister indicated during one of our earlier debates this afternoon, to amend the Bill in this way would considerably help to resolve many of the other defects in it which we have been debating.

My noble and learned friend Lord Judge made a point that is so important that it needs to be repeated: there is nothing novel about legislation requiring the concurrence of the Lord Chief Justice and the Lord Chancellor. This very Bill, at Clause 6(2), states that the Lord Chancellor’s powers to make regulations relating to the committee may be exercised only,

“with the concurrence of … the Lord Chief Justice and … the Senior President of Tribunals”.

Therefore, I suggest to the Committee that the question is not whether in principle ministerial powers should ever be constrained by a need to obtain the concurrence of the Lord Chief justice but whether that restriction is appropriate in relation to these powers. In my view, such is the breadth of the powers that we are conferring and so intimately do they address the fair administration of justice, which is after all the business of the Lord Chief Justice, that his or her agreement should be needed for their exercise.

Whether it was a blandishment or otherwise, I was very pleased earlier to hear the Minister give a commitment to consider this issue actively before Report. I very much hope that, on Report, the Minister will feel able to table an amendment or amendments to address this issue or, at the very least, to support amendments in the name of my noble and learned friend Lord Judge.

[Lord Mackay of Clashfern]

Having had the honour of holding the office of Lord Chancellor when the Lord Chancellor was the head of the judiciary, I think it is right for me to say a word or two about the present position.

It is very important to remember that our constitution recognises three arms: the legislature, the Executive and the judiciary. The judiciary is a distinct arm from the Executive. The Executive have responsibilities in relation to the judiciary, and of course the judiciary has responsibilities in relation to the people of this country in a way that is unique. If somebody else is entitled to say, without getting the ultimate agreement of the Lord Chief Justice, “We’re going to alter your procedures in the court. We’ll tell you about it and we’ll consult you but, if you don’t like it, we’ll do it all the same”, that seems to subvert the idea that the Lord Chief Justice is the head of the judiciary. The judiciary must act according to procedures and, if you alter the rules or procedures without his agreement, it seems to me that you subvert his position as the head of the judiciary as distinct from the Executive and the legislature.

Incidentally, I cannot help remarking at this stage that the judiciary has been silenced from having any part in the legislature. I regard that as an extraordinarily retrograde step. I hope that some day it will be put right by a responsible Government and that we will have the very great advantage of hearing in the House of Lords not just all past Lord Chief Justices but the present one as well.

The Lord Chief Justice’s agreement seems to me absolutely essential. Indeed, I would like to feel that he would be the initiator of changes in procedure as a result of committee recommendations. His responsibilities will be encroached upon if these procedures do not work.

My only other remark is that the reference to the Secretary of State in Clause 6(2) is probably to the Secretary of States for Wales, the language of Wales being important in this connection.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Pannick Excerpts

Report stage (Hansard): House of Lords
Monday 24th June 2019 Lords Chamber

[Lord Beith (LD)]

My Lords, I tabled the amendment to which my noble friend referred, Amendment 5 to government Amendment 4, because I did not believe that the government Amendment, helpful though it is, fully satisfied the clear intention set out by the noble and learned Lord, Lord Keen, that somebody who feels that they can only engage with this process on paper should be able to do so without the creation of a parallel procedure or there being two different processes. What we have is one simplified procedure in which documentation is held online but to which people can make submissions by paper, not only initially but at any necessary subsequent stages. For that to be a reality, they must also be able to receive the relevant documentation on paper through the work and assistance of the Courts Service. I think that some ambiguity has been created.

I note that the Minister wrote to us about the requirement to initiate proceedings by electronic means, which requires rules to be made to enable documents submitted in paper to be treated as if they were initiated by electronic means. The wording of government Amendment 4 appears to refer to the initiation of the proceedings, rather than the initiation of subsequent documents, and is silent on the entitlement to receive documents on paper. The simple issue, which some of us may have faced in dealing with other organisations, is that you cannot have a situation in which you make a submission on paper and have no clue what will happen afterwards because you are relying on the paper process. The Government’s intention was clear in everything the noble and learned Lord said, but it is not clear in the amendment. My addition to the Government’s wording would make it clear, although I fully accept that this could be dealt with in words in a different way or at a different point in the parent amendment. My noble friend is confident that the Government have got the point and are going to do something about it, but I would like the noble and learned Lord to make that clear.

[Lord Pannick (CB)]

My Lords, I thank the Minister and the Bill team for their very positive response to the concerns expressed around the House in Committee. I agree with all the points made by the noble Lords, Lord Marks and Lord Beith, and I support their amendments. I am particularly concerned about government Amendment 4 for the reasons that the noble Lord, Lord Beith, indicated. It is expressly confined to the initiation of proceedings and does not in terms cover, as it must, the right to submit further paper documents and to receive paper documents if the litigant so elects. I very much look forward to the Minister confirming what the noble Lord, Lord Marks, indicated—that the Minister intends to address this point at Third Reading.

I much prefer the solutions offered in the various amendments to which the Minister and the noble Lords, Lord Marks and Lord Beith, have spoken, to Amendment 7 tabled by the noble Lord, Lord Beecham, with all due respect to him. As I understand it, his amendment would allow for regulations, under which the party bringing proceedings could choose whether proceedings are under the Online Procedure Rules or the standard rules. I can see no justification, particularly if the other amendments are agreed, for allowing people to choose which rules apply, especially if paper documents can be fed in and received under the Online Procedure Rules. Such an amendment would, I fear, damage the whole purpose of the Bill. It would give litigants an option as to which rules apply and benefit no one other than those who wish to make a simple claim subject to a more complex and more expensive procedure as, for example, a negotiating tactic.

[Lord Judge (CB)]

My Lords, I shall say just a word or two in support of these amendments. Amendment 2, by adding the two words “providing for”, and Amendment 3, by removing the one word “technical”, would rather improve the clause. Amendment 5 improves government Amendment 4, which itself was an improvement. If I may, I will paraphrase how I understand Amendment 5 would work: if you are not digitally educated and you would prefer to use paper you may do so, and if you do your papers will be incorporated into the electronic system. The amendment would provide that you are entitled to continue to use your own paper and your own paper system because the electronic system would be perfectly well able to provide you with all the paper you need. There should be no difficulty about it at all.

Amendment 5 is consistent with Amendment 18 to Clause 7, which has the interest of those who require technical support to be protected. It also, for the reasons given by the noble Lord, Lord Pannick, effectively makes Amendment 7 in the name of the noble Lord, Lord Beecham, to Clause 3 redundant because the paper user would then not be at any disadvantage. For the reasons he has given, the idea of having two systems running side by side would, among other things, be a recipe for those who do not want justice to be done and who want to confuse and to avoid getting the system to court for a hearing.

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[Lord Judge]

My Lords, the Government have come a long way and I am now addressing not only the amendments put forward by the Government but Amendments 22 and 23. I begin by thanking the noble and learned Lord, Lord Keen, for kindly listening to what we had to say and for acting on it, and the Bill team for helping him get the wording right. It means that the Government have come a long way towards understanding the implications of the constitutional changes in 2005, which changed the relationship between the Lord Chancellor and the Lord Chief Justice and placed on the Lord Chief Justice responsibilities that once attached to the Lord Chancellor. The Lord Chief Justice now has personal responsibility for the arrangements by which litigation is conducted. To the extent that this relates to tribunals, the Senior President of Tribunals has the same responsibility. I welcome Amendment 12 and government Amendments 6, 8, 25, 26, 27 and 28, and shall welcome government Amendments 10 and 15 in the next group.

The difference between being consulted and requiring concurrence needs no emphasis. If you are consulted, what you say can be totally disregarded; concurrence means what it says. Despite all that I have said, I am sad to say that although the noble and learned Lord, Lord Keen, has taken his car a long way down the road of logic and constitutional sense, his vehicle has run out of fuel and failed to reach its logical conclusion.

The position can be summarised very briefly. Amendments 22 and 23 to Clauses 8 and 9, respectively, concern two clauses which, as drafted, give exceptionally wide powers to a Minister. Indeed, Clauses 8 and 9, I am afraid, are in the sadly standard form of donating, handing over or retaining power to the Executive which we now find in just about every Bill that comes before us.

The first six clauses, whatever other comments may be made about them, recognise that the government amendments in group three address the constitutional responsibilities. That is fine. Clause 7(3) gives the Minister an unconditional power to,

“allow or disallow Online Procedure Rules made by the Committee”,

provided that written reasons are given for doing so. In other words, he does not have to consult the Lord Chief Justice if he thinks that the rules put forward are not sensible or appropriate, or that they would cost too much money. That prevents the committee going off on a frolic of its own—or, indeed, putting forward rules with the concurrence of the Lord Chief Justice which, for example, involve unreasonable expenditure. That is very sensible. I do not cavil at the idea incorporated in Clause 7(3) and the individual responsibility of the Lord Chancellor in that regard.

However, taken together, Clauses 8 and 9 unbalance the relationship. The Lord Chief Justice falls out of Clause 8 altogether—he does not get a mention. He is reduced or left to the consultation process in Clause 9, which is entirely inconsistent with the provisions in the Bill that the Government amended to allow for concurrence rather than consultation. Under Clause 8, the Minister has power to direct that the rule committee shall include provisions to achieve the Minister’s purposes and that, when such a direction is given, the committee has no option but to comply within a reasonable time. It is that stark; the power is vested directly in the Minister.

It is one thing—and perfectly sensible—to protect the Lord Chancellor from some wild or absurd rule committee proposal. It is, with great respect, quite another for him to have an unconstrained power to give it directions: in effect, to tell it what to do. The Minister may, by Clause 9(2), also don the tarnished crown of King Henry VIII, who is not, of course, King Henry VIII to the noble and learned Lord, Lord Keen; I am not sure what he is to Scottish history—probably nothing. Would it not be wonderful to have a history in which Henry VIII counted for nothing? It would certainly be a convenience to this House if he did not count for very much.

So, if he wishes, the Minister may don this tarnished crown if he considers it necessary or desirable to facilitate the making of the rules. On closer examination, if you put these two clauses together, this arguably means that the Minister may overrule the very rules which were made with the concurrence of the Lord Chief Justice or his predecessor.

The Bill should be logical. The Lord Chief Justice’s concurrence to the exercise of these powers is elementary. The Bill and the government amendments now recognise it; the Minister has his safeguards in Clause 7(3); Amendments 22 and 23 make similar safeguards available to the Lord Chief Justice. I invite the Minister to refuel his car and keep right on to the end of the road.

[Lord Pannick]

My Lords, I declare my interest as a practising barrister. I too thank the noble and learned Lord, Lord Keen, for the important amendments which he has tabled, which will ensure that the concurrence of the Lord Chief Justice is required under Clauses 2 and 3. However, I have added my name to the amendments tabled by the noble and learned Lord, Lord Judge—in particular, Amendments 22 and 23—similarly to require the concurrence of the Lord Chief Justice for the exercise of the powers being conferred on the Minister under Clauses 8 and 9.

Clause 8 is an extraordinary clause. It would confer power on the Minister to require the committee to include a specified provision if the Minister thinks it is “expedient” to do so, and if the committee were to be so required, it would have a legal duty to comply. “Expedient” is the broadest possible word to define the scope of such a power. If Clause 8 is enacted as drafted, the requirement for the concurrence of the Lord Chief Justice under Clauses 2 and 3, which we all agree is necessary, would be rendered pointless. The Minister could simply override the views of the Lord Chief Justice in relation to any relevant matter under Clauses 2 and 3. I know that the noble and learned Lord, Lord Keen, does not share that view, and I look forward to him explaining why there is a limitation on what appears to be, and indeed is, the broadest possible drafting in the language of Clause 8. It contains no express limitation, and it seems very difficult to argue that there is an implied limitation that would prevent the Minister rendering pointless what is in Clauses 2 and 3 when the very purpose of Clause 8 is to give the broadest possible discretion to the Minister to give directions to the committee with which it must comply. Since the Minister has rightly accepted that, in the context of provisions about access to justice—which is what we are talking about—it is necessary for the provisions to require the concurrence of both the Minister and the Lord Chief Justice, there can nevertheless be no justification for conferring on the Minister by Clause 8 a power to override the views of the Lord Chief Justice on these important matters.

Clause 9 confers, as the noble and learned Lord, Lord Judge, said, a broad Henry VIII power on the Lord Chancellor to amend, repeal and revoke other legislative provisions whenever the Lord Chancellor considers it “necessary or desirable” in consequence of the Online Procedure Rules or to facilitate the making of Online Procedure Rules. Again, these are exceptionally broad powers, touching centrally on access to justice. For the same reasons that require the concurrence of the Lord Chief Justice for the exercise of powers under Clauses 2 and 3, it is necessary to require the concurrence of the Lord Chief Justice for the exercise of powers under Clause 9.

[Lord Beith]

My Lords, I do not know what answer the Minister will give to the pertinent question asked by the noble Lord, Lord Pannick, about the Clause 8 powers. The Lord Chief Justice might in some cases exercise the Clauses 2 and 3 powers to defy what the Lord Chancellor had asked the rule committee to do—which it had gone on to do at waste of time and expense and which he would not then agree to. However, that would apply to only some of the powers that the Minister would have in these circumstances; for example, extending into an area which the Lord Chief Justice did not think appropriate for the use of online procedure. But there are other things that the Lord Chancellor might direct the committee to do, such as shortening the notice period for various stages in the process or reducing in one way or another the rights of people engaged in the process, which could then be an obligation on the committee. If its members did not then resign, they would be required to produce rules which the Lord Chief Justice did not have a protective power to veto. The Clause 8 powers are worrying, and I do not recall at any stage in our amicable discussion any explanation why they are necessary and why, if any power is needed in this area, it cannot be much more narrowly defined.

One can make a similar point about Clause 9 in relation to Henry VIII powers, but it is a point that we have made so often that we risk becoming tired of making it. Thank goodness that the noble and learned Lord, Lord Judge, never ceases to make it in every circumstance in which it is appropriate.

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[Lord Mackay of Clashfern (Con)]

My Lords, I took some part in previous discussions of these matters in relation to the powers of the Lord Chief Justice and the fact that he—or she, if it happens to be so—is now the head of the judiciary and the Lord Chancellor is not. I am inclined to remember—I may be wrong, and I hope that my noble and learned friend will correct me if I am—that a provision of exactly this type was made in relation to the other procedural committees that currently exist. It is a considerable time since that provision was made, and as far as I know, no trouble has emerged. That is because I would expect the Minister to exercise great care in this matter. I think I am right in saying that that was not altered in the Constitutional Reform Act, as it is called, which changed the responsibility of head of the judiciary.

I am therefore inclined to want to hear a bit more about this before we come to a decision. When so much agreement has been reached, it is a pity if we fall from agreement at the last minute, particularly if to do so would produce a very strange anomaly between the existing law relating to either of the other procedural committees and this rather more technical committee.

I do not think Clause 9 has to do with the procedure rules. It has to do with the possible obstruction to those rules which may exist in legislation already passed as part of our law. The Lord Chancellor is entitled to make regulations to amend the Acts of Parliament which interfere with the proposals being accepted as Online Procedure Rules. The rules may well have an impact on old statutory provisions—for example, those which have an impact on whether or not you can have online procedures—most of which, I imagine, did not envisage that. It may be that they can be interpreted to include considerations of that kind, but that is the nature of the problem in relation to Clause 9.

After thinking this through as best I can, I would not care for the Lord Chief Justice to have to be involved in the regulation-making aspect of this business. If regulations are required, they should be made by the person with the appropriate political responsibility. I therefore have doubts about the relevance of the rules in relation to Clause 9.

As to Clause 8, as far as I know, existing law was left unchanged by the Constitutional Reform Act. As to Clause 9, I wonder whether it is appropriate for the Lord Chief Justice to get himself involved in the nitty-gritty of political regulation.

[Lord Pannick]

The noble and learned Lord says that it is not appropriate for the Lord Chief Justice to be involved in Clause 9 matters—that he is not relevant to that—but the clause makes him involved. It gives him a role because he has to be consulted, so he is not irrelevant at all.

[Lord Mackay of Clashfern]

Exactly. He is doing exactly what I think is required. If the person who has the responsibility finds out that it is okay with the Lord Chief Justice—at least that is what I hope would happen—that person then goes on and does it. Therefore, consultation is probably the right balance at that stage. I am rather against the idea of involving the Lord Chief Justice in any form of political work. I thought the Constitutional Reform Act sought to achieve separation between the judiciary and the legislature, so that the acting judiciary were no longer part of the legislature.

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[Lord Keen of Elie]

My Lords, I begin with two general observations. First, I am not conscious of having run out of fuel, but I leave that to others to judge. Secondly, it occurs to me that the Henrician view of executive power does not differ in any practical respect from the Stuart view of the divine right of kings.

Perhaps I should begin by making this point. Under the structure of the Bill, it will be necessary, pursuant to Clauses 2 and 3, to identify proceedings of a specified kind that may be subject to the Online Procedure Rules. In the light of the Government’s amendments, that can be done only with the concurrence of the Lord Chief Justice, as indicated, and subject to the affirmative procedure.

It is not open to the Online Procedure Rule Committee to make Online Procedure Rules in respect of procedures that are not of a specified kind—that would simply be ultra vires. There is scope the other way, for the Online Procedure Rule Committee to provide that certain proceedings that are of a specified kind are not to be governed by the rules; that is pursuant to Clause 1(6). So the point I seek to emphasise at the outset is that the definition of specified procedures—the specified kind of procedures—sets out the framework within which the Online Procedure Rule Committee can operate. If the Minister were at any time to direct the Online Procedure Rule Committee, pursuant to Clause 8, to make rules in respect of proceedings that were not of a specified kind, that would be ultra vires; that is quite clear. He can direct them to make rules only in respect of proceedings of a specified kind pursuant to Clauses 2 and 3.

It is not possible to utilise the Clause 8 power in order to run roughshod over the provisions in Clauses 2 and 3, which clearly set out the need for the Lord Chief Justice to give concurrence to the proceedings that will be subject to the rules. Perhaps I am stating the obvious, but it occurred to me that one or two observations made in the course of this debate were inclined to suggest otherwise. I do not accept that. One has to look at the entire structure of the Bill and have proper regard to the way in which Clauses 2 and 3 will operate in that respect.

[Lord Pannick]

I am grateful to the Minister for giving way. It may be obvious to him, but not necessarily to others, that there is this implied limitation in what appears a very broad power being conferred on Clause 8. I suggest to him that a possible way forward would be for him to introduce at Third Reading an amendment to Clause 8 that makes it clear in the Bill that it has the limitation that he tells the House it has.

[Lord Keen of Elie]

With great respect to the noble Lord, I do not consider that I am dealing with an implied limitation. If one construes the Bill as a whole, one begins with Clauses 2 and 3, which set out the framework within which the Online Procedure Rule Committee will be able to operate. That framework is subject to the concurrence of the Lord Chief Justice; that is quite clear. To read Clause 8 as though it stands entirely alone and independently of the rest of the Bill is not, I submit, at all appropriate. The circumstances in which Clause 8 directions may be given clearly apply to the rule-making power of the committee. The committee has no rule-making power except in respect of proceedings of a specified kind as provided for by Clauses 2 and 3. I do not suggest that an implication is necessary there; it is simply a matter of statutory construction. I hear what the noble Lord says and will give further consideration to the point he makes in light of it, but that is my position at present.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Pannick Excerpts

3rd reading (Hansard): House of Lords
Tuesday 2nd July 2019 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I wish simply to join in the unanimous praise and gratitude for the Government’s acceptance of those amendments that they have accepted, and their tabling of these amendments today. The Online Procedure Rules are intended to introduce a new and simplified procedure. We were concerned to ensure that litigants who were going to find it difficult to use that procedure, particularly in so far as it was a digital procedure and they would not be using paper means to conduct proceedings, should not be excluded by difficulty from approaching the procedure and should have afforded to them the kind of assistance they would need to handle litigation, without the need for lawyers, under the Online Procedure Rules.

We are particularly grateful for the Government’s acceptance of Amendment 4, which imposes a duty on the Lord Chancellor, as the Minister has explained, to provide assistance or support for digitally excluded people, and these amendments tie in the obligation to have regard to the needs of those people in conducting that litigation. I was particularly concerned about the use of the word “technical” in relation to that assistance, because it seemed to us that that might be unduly restrictive. I am grateful for the excision of that word from the amendments.

[Lord Pannick (CB)]

My Lords, I too thank the Minister very much, even in relation to a Bill which, as the noble Lord, Lord Marks, has just said, seeks to reduce the role and importance of lawyers in litigation. I want to add two points. The first is to remind the House that the concerns which the Minister has so satisfactorily addressed arise from the report of your Lordships’ Constitution Committee, under the distinguished chairmanship of the noble Baroness, Lady Taylor of Bolton. This confirms the value of the committees that serve this House—I am of course a member of that committee—and reinforces the importance of the non-partisan nature of these committees and the value of the work they do.

Secondly, without in any way undermining the sense of unanimity and gratitude to the Minister, I just remind him that there is one contentious issue which goes to the other place. Your Lordships’ House insisted on amendments, against the wishes of the Government, to what are now Clauses 9(4) and 10(3), requiring the concurrence of the Lord Chief Justice. I very much hope that the Minister will be able to use his good efforts to ensure a satisfactory resolution of that issue, as well as all the other issues. The Minister’s role in this Bill has been quite exemplary, and he has done a great deal to ensure that it will leave this House in a much better state than when we started it.

[Lord Keen of Elie]

I am obliged to all noble Lords and all noble and learned Lords for their observations regarding the Bill. As the noble Lord, Lord Beith, observed, it may be difficult to anticipate the speed with which these online procedures are taken up by individuals, but one is reminded of a character in an Ernest Hemingway novel who is asked how he became bankrupt and replies, “Gradually and then suddenly”. It may well be that we will see a similar development with these digitised procedures.

I note what the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Judge, have said. The term “satisfactory resolution” is of course open to interpretation. I observe merely that the extent of permanent constitutional reform anticipated by some of the amendments that passed may not be as great as the noble and learned Lord anticipates. However, we wait to see the reaction in the other place.

Again, I thank all noble Lords for their contributions to the Bill. It leaves this House a better Bill than it came in—I have no doubt at all about that.