As the Courts and Tribunals (Online Procedure) Bill continues its journey through the legislature, Joe Tomlinson and Matthew Ahluwalia explain how it fits into the HMCTS reform programme and why it needs a rethink.
The Courts and Tribunals (Online Procedure) Bill 2017–19
has progressed from the House of Lords to the Commons, with the second reading scheduled for 16 July 2019. This bill essentially provides the foundations of a new White Book
for the digital age. It is also a crucial aspect of the ongoing HM Courts and Tribunals Service (HMCTS) reform programme.
The main purpose of the bill is to create an Online Procedure Rule Committee (OPRC), which, in turn, will create the new Online Procedure Rules (OPR). These rules will govern the practice and procedure to be followed in proceedings that are to be initiated, conducted, progressed or disposed of by electronic means. The OPR will also regulate the critical issue of which proceedings are to be online. There are also provisions regarding support for digitally excluded people.
The bill establishes who is to make up the OPRC. It will comprise:
•a judge of the senior courts of England and Wales;
•two people, each of whom is either:
•a judge of the senior courts of England and Wales, a circuit judge or a district judge; or
•a judge of the First-tier Tribunal, a judge of the Upper Tribunal, an employment judge or a judge of the Employment Appeal Tribunal;
•a barrister in England and Wales, a solicitor of the senior courts of England and Wales, or a legal executive;
•one person with knowledge of the lay advice sector; and
•one person with IT experience and knowledge relating to end-users’ experience of internet portals.
The OPRC will have the same rule-making powers that are available to the Civil Procedure Rule Committee, the Family Procedure Rule Committee and the Tribunal Procedure Committee.
The bill sets out the process for making new rules, with such rules to be agreed by both a majority of the OPRC and the appropriate minister. Where the minister does not agree, they must provide written reasons. The bill as laid before the Commons permits the minister to request, with the concurrence of the lord chief justice, that the OPRC add to or amend the OPR, which it must accommodate as it considers necessary to achieve the purpose that the minister specifies. The lord chancellor is also empowered, by regulations, to amend, repeal or revoke primary or secondary legislation as ‘necessary or desirable’ as a consequence of the OPR, again with the concurrence of the lord chief justice.
What needs rethinking?
Much of the second reading debate in the Lords (Hansard HL Debates vol 797, cols 1505–1529, 14 May 2019
) focused on broader concerns about HMCTS’s reform programme, including concerns about the need to modernise and to upgrade existing court facilities, the appropriateness of online proceedings, digital exclusion, and reductions in court staff. This was not unexpected, and indeed ventilating such concerns can be beneficial. However, the details of the bill are important, and there are at least three elements that need revisiting.
First, the government has suggested that HMCTS will conduct piloting of new online proceedings (Lord Keen in the second reading debate, col 1506). This piloting will be critical. Indeed, a lack of transparency over the testing and research being conducted by HMCTS in respect of the reform programme1See Transforming our justice system – joint statement, Ministry of Justice/HMCTS, September 2016.
has been a common feature of the submissions to the Justice Committee’s court and tribunal reforms inquiry
. However, there is currently nothing in the bill that requires such piloting to be carried out.
Second, the design and composition of the OPRC raises questions. There is likely to be a discussion around whether interests of the full range of court users and stakeholders are adequately represented, as well as the appropriate distribution of expertise on the committee. There is also likely to be debate about its power, and particularly the lord chancellor’s role. Given the plans for future wide-ranging use of online proceedings, the power of the OPRC could grow considerably, and the provisions granting powers to the lord chancellor could also become significant. The bill as laid before the Commons now requires concurrence with the lord chief justice on requesting new online procedure rules to be made, and in relation to making regulations with the purpose of amending other Acts. It is hoped that this step will suffice to ‘put Henry VIII back in the naughty corner’ (col 1512).
Third, the European Convention on Human Rights (ECHR) memorandum
, published alongside the bill, focuses solely on article 6 issues. There is a surprising lack of consideration as to whether article 8 might be engaged by online proceedings, particularly in light of the Supreme Court’s decision in R (Kiarie and Byndloss) v Secretary of State for the Home Department  UKSC 42
; July/August 2017 Legal Action
27. There is also very little detail in the ECHR memorandum as to how the principle of open justice will be adhered to where proceedings are conducted online. All that is set out is an intention to have viewing screens in courts to facilitate access to those online proceedings, with such hearings accompanied by ‘listing practice to ensure that interested members of the public or press may attend at the appointed time’ (para 17, page 5).