The government has no intention of making court processes exclusively online and so there is no need to give way to demands to guarantee this in primary legislation, peers were told this week.
However, Lord Keen, the Ministry of Justice’s spokesman in the House of Lords, indicated that it might accede to calls for the Lord Chief Justice to have a stronger voice in what areas of law were moved online.
The Courts and Tribunals (Online Procedure) Bill – which will give a legal basis for online procedures in civil and family courts, as well as tribunals – had its committee stage in the House of Lords this week.
The intention is that the online procedure will initially only cover civil money claims up to a value of £25,000, before being extended.
There was a strong push by opposition peers to amend the bill so that it was clear that people would not be forced to participate in court proceedings online, could choose to file forms and other documents under the Online Procedure Rules (OPR) allowed for under the bill by electronic means or on paper, and could opt by agreement to litigate by the conventional rules instead.
Lord Keen confirmed that it would be possible to access the online procedure either digitally or by paper.
“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.”
However, the government did not intend to give claimants a choice between the “simplified” online procedure and the “more complex” Civil Procedure Rules (CPR).
He resisted arguments that non-digital access to the system should be guaranteed on the face of the bill.
“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…
“I quite see that this House might wish to see it in primary legislation, but the position is this: a committee will be formed to put forward appropriate rules and regulations for the online procedure, under the essential supervision not only of the executive but of the judiciary.
“There may come a point, at some unforeseeable time in the future, where the judiciary is of the view that it is no longer necessary to employ paper as a form of application or entry into the judicial process.
“I do not anticipate that happening – there is nothing here to suggest it will happen – and I do not see that there is a requirement for such a guarantee in the form of primary legislation.”
Lord Keen said the bill provided the flexibility for a case to progress via the OPR or the CPR if necessary.
“Where a case is so complex that that the online procedure is clearly inappropriate, it will be for the judge to determine, and he will have the discretion to do so, whether a case should remain within the online procedure or should proceed by way of the traditional civil rules instead.
“Where both parties make a representation that the case should not proceed by way of the online procedure, then of course the court will hear those representations and take them into account, but ultimately it will be for the court to decide the appropriate procedure for the disposal of any claim.”
Crossbencher Lord Pannick QC said there were “plainly specific types of proceedings which it is wholly inappropriate to determine online”, such as 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,” he said, echoing concerns expressed earlier in the week by the House of Lords constitution committee in a report on the bill.
Lord Keen responded: “This is a piece of enabling legislation… it is not a case of us bringing in powers without limits or regulation. It will establish an expert committee, including judicial representatives, legal representatives and others, that will be able to call upon the expertise of others in particular areas as and when it comes to address them…
“It does not give free rein to some individual in the executive to determine how court cases will be determined.”
The bill provides that the Lord Chief Justice should be consulted in relation to what should be covered by the OPR, and former Lord Chiefs Lord Judge and Lord Woolf, and former Lord Chancellor Lord Mackay said this should be strengthened to require concurrence
Lord Judge said: “Concurrence of the Lord Chief Justice, and where appropriate the Senior President of Tribunals, is necessary surely when an issue affects the administration of justice on a day-to-day basis. That is what the bill is about: the administration of justice, day to day.”
Given the “wide powers” the bill would hand a minister, “consultation alone is a meaningless handout from the executive to the judiciary”, Lord Judge added.
“More importantly, alone it offers no sufficient protection to the citizen against inappropriate executive interference with the administration of justice.”
Lord Keen hinted that movement on this was possible. “I can go no further at this stage than say that I have that under active consideration and would anticipate returning to the point on report.
“I do not give any unequivocal undertaking, but I indicate that I appreciate how and why certain aspects of the bill, if moved from consultation to concurrence, would meet some of the concerns.”
He also said the government would consider providing an “expression of intent” on the face of the bill that litigants would be able to access digital assistance.
The bill provides that the OPR committee would be made up of a senior judge and one other judge, both appointed by the Lord Chief Justice, as well as one lawyer – either a solicitor, barrister or chartered legal executive – and two others, one with experience in the lay advice sector, and the other in IT, appointed by the Lord Chancellor.
There are concerns about the size of the committee – far smaller than the existing procedural rule committees – and the fact that the majority would be appointed by a minister.
However, Lord Keen rejected a Labour amendment to require that a solicitor, barrister and chartered legal executive all be appointed, along with a magistrate.
“A smaller committee allows the standing members to increase and adapt their membership quite easily every time they consider a different topic,” he said.
“That therefore allows them access to a greater spread of expertise and to ensure the rules are made by those who have an understanding of how they are most suited to the user…
“We consider that adopting the amendment would create issues about who is appointing the membership of the committee and whether there was a disproportionate power of appointment between the Lord Chancellor and the Lord Chief Justice.”