Courts and Tribunals (Online Procedure) Bill

Written evidence submitted by the Bar Council (CTOPB01)

This is a briefing paper from the General Council of the Bar of England and Wales (the Bar Council) which has been prepared ahead of the House of Commons committee stage of the Courts and Tribunals (Online Procedure) Bill. The Bar Council is the lead representative body for 16,000 barristers in England and Wales.

1. Overview

1.1. The Bar Council considers it appropriate that an Online Procedure Rule Committee (OPRC) is established for the purpose of making Online Procedure Rules (OPR) to support increased use of electronic means to conduct proceedings.

1.2. The Bar Council is however concerned that the move to increased use of electronic means to conduct proceedings should not be at the expense of access to justice or the quality of justice. The use of online procedures will give rise to difficulties of access for those who are digitally excluded. The closure of Lambeth Law Centre on 15 July 2019 after 38 years of service is a timely reminder of the shrinking resources that are available to assist members of the public access our legal system.

1.3. The Bar Council welcomes the amendments to the Bill made at the Lords Report Stage in relation to:

1.3.1. The requirements for the "concurrence" of the Lord Chief Justice including in relation to the exercise of Ministerial powers under clauses 9 and 10; and

1.3.2. The requirement introduced by clause 1(4) that regard must be had to the needs of those who require support in order to initiate, conduct, progress or participate in proceedings by electronic means.

1.4. The Bar Council nevertheless continues to have concerns about a number of aspects of the Bill.

2. Bar Council’s Concerns and Recommendations

2.1. The Bar Council invites Members to consider our concerns and recommendations relating to the following areas of the Bill:

(a) Clause 1(1): Access to justice for those lacking digital skills

The Bar Council is concerned that OPR which require proceedings to be initiated, conducted, progressed, disposed of and/or heard by electronic means will disadvantage those lacking digital skills. Whilst it is likely that many court users will wish to use electronic means to resolve their disputes the Bar Council considers that the right to choose a traditional court procedure should be preserved at this time.

Recommendation

Clause 1(1) of the Bill should not "require" parties to use electronic means in proceedings.

(b) Clause 1(3): Preserving the openness of justice

It is important that our justice system remains open and transparent. The use of electronic means to resolve disputes will put this principle at risk if members of the public are not be able to observe the operation of an online justice system.

Recommendation

Clause 1(3) should be amended so that there is an additional object in view when the power to make OPR is exercised namely securing "openness and transparency in the determination of disputes by electronic means".

(c) Clause 1(3)(d): Limits and clarity over the use of "innovative methods of resolving disputes"

The OPR are to be made with a view to securing the use of "innovative methods of resolving disputes". The Bar Council understands that this is intended to facilitate methods of alternative dispute resolution and early dispute resolution but does not consider that the use of the expression "innovative methods" provides sufficient clarity as to what is intended.

The Bar Council is also concerned that methods of ADR should not be imposed on parties without their consent. The requirement for the agreement of the parties to mediation is already recognised in the Bill in paragraph 13 of Schedule 1.

Recommendation

The Government should either provide greater clarity on what the intended meaning of "innovative methods" is or should replace the word "innovative" with the word "alternative".

Recommendation

There should be a requirement that the consent of the parties must be obtained for any method of dispute resolution other than judicial determination.

(d) Clause 2: Preserving traditional proceedings where fundamental rights or the liberty of an individual is in issue

The Bill does not put any limit on the type of proceedings that can be a "specified kind" and so determined by electronic means.

The Bar Council considers that there are certain types of proceedings in which the rights or liberties at stake are so important that they should either be excluded from being of a "specified kind" or, at the very least, should be excluded from the creation of rules to allow for their disposal by electronic means under clause 1(1)(c).

Recommendation

There should be suitable exclusions from those proceedings which can be of a "specified kind" and/or for which rules can be made under clause 1(1)(c).

Such exclusions should include claims for possession of a person’s home, claims for any order that requires a person to do something or refrain from doing something, claims relating to a child, claims for contempt of court and any proceeding where the liberty of an individual is in issue.

(e) Clauses 4 : Lord Chancellor’s duty to arrange for the provision of support

Whilst the Bar Council welcomes the introduction of this clause into the Bill the Bar Council is concerned that the duty is not framed in such a way as to require the Lord Chancellor to have regard to the digitally excluded.

Recommendation

The Lord Chancellor’s duty should be framed so that regard must be had to "the needs of those who require support in order to initiate, conduct, progress or participate in proceedings by electronic means, in accordance with Online Procedure Rules" when considering the provision of support (i.e. a similar requirement to that contained in clause 1(4) of the Bill)

(f) Clauses 5 and 7: Size and independence of the OPRC from the Lord Chancellor

The Bar Council welcomes the amendment made in the House of Lords to increase the proposed size of the OPRC from five to six members but remains concerned that this will not be sufficient for it to have a sufficient range of knowledge and experience to fulfil its function.

Recommendation

The composition of the OPRC should be made closer in size and composition to the Civil Procedure Rules Committee (CPRC) established by section 2 of the Civil Procedure Act 1997. The CPRC presently has 16 members of whom 9 are judges.

3. Bar Council’s comments on amendments tabled to date (19 July 2019)

3.1. The Bar Council makes comments on some of the tabled amendments below. The absence of a comment on any tabled amendment should not be taken as support for or a lack of support for the amendment by the Bar Council.

(a) Clause 4 – Clause 4, page 4, line 13, - Yasmin Qureshi, Richard Burgon, Gloria De Piero, Imran Hussain (Amendment 2)

Whilst a free help-line is an important way of providing support, help-lines are not always an effective way of delivering support to those with legal problems. Members of the public whose command of English is poor and those who lack digital skills are likely to need face-to-face support.

(b) Clause 5, page 4, line 29, Clause 5, page 4, line 31 and Clause 5, page 4, line 37 - Yasmin Qureshi, Richard Burgon, Gloria De Piero, Imran Hussain (Amendments 3, 4 and 5)

The Bar Council welcomes these proposals to increase the membership of the OPRC but any increase in the number of appointees made by the Lord Chancellor needs to be balanced by an increase in judicial appointees made by the Lord Chief Justice. Otherwise there is a small but nevertheless unacceptable risk that OPR may be passed despite the concerns of the judicial appointees.

The Bar Council considers that the work of the OPRC will be greatly benefitted by having a member with experience representing the views of people who are digitally excluded (Amendment 5).

(c) Clause 9, page 8, line 32, Clause 10, page 9, line 3, Clause 10, page 9, line 5 - Paul Maynard (Amendments 9, 10 and 11)

The Bar Council wholeheartedly agrees with the statements made by Lord Judge at the Lords Report Stage concerning the need for the concurrence of the Lord Chief Justice in relation to these Ministerial powers.

The potential scope for OPR under the Bill is very wide indeed and these Ministerial powers should be exercised with the concurrence of the Lord Chief Justice who is responsible for the fair and efficient administration of the justice system.

July 2019

 

Prepared 24th July 2019