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The Online Procedure Bill needs proper scrutiny

The Online Procedure Bill needs proper scrutiny
5 min read

Shadow Minister for Justice Yasmin Qureshi outlines her amendments to the Courts and Tribunals (Online Procedure) Bill as it reaches Committee stage in Parliament.

This week the Courts and Tribunals (Online Procedure) Bill reaches the Committee stage in the House of Commons. In theory this should provide an opportunity to question and improve legislation which will have a major impact on the way we do justice and act as a key plank of the Government’s wider court reform programme. The Bill establishes an Online Procedure Rule Committee (OPRC) which will then produce a framework and rules for use in specified civil, tribunal and family law proceedings as they move online.

Although there is broad support for this committee, various interest groups have raised serious concerns. The Law Society has emphasised that Parliament should have greater oversight of new rules than the Bill currently allows. Meanwhile the PCS union and mental health advocates have argued that people need to have the right to choose traditional methods and highlighted the vital importance of protecting those who may be at risk of digital exclusion.

This past week has also provided a salutory reminder of the need to thoroughly scrutinise the ongoing reform programme, at the heart of which is increased use of digital technologies. On Wednesday, it was revealed that over 30,000 hours of court staff overtime were spent dealing with the IT breakdowns which affected the courts in January. Although mistakes are understandable, they become more likely in a chronically underfunded department which is being ‘modernised’ on the cheap and with worrying haste. Over-reliance on digital justice will lead to over-exposure to risk; that needs to be factored into planning.

This brings us to the related question of research. Last Wednesday I received the answer to a written question I put to the Ministry of Justice over a month ago. The Minister’s response stated around £400,000 has been spent on research for the entire, £1.2 billion courts reform programme. This pales in comparison to the £50m expected to be spent on consultancy advice for the reforms. The reasoning behind this lack of research is, I think, that the Government knows proper analysis of the access to justice implications of their reforms could produce some undesirable results. Where research has been done internationally on the impact of digital justice on the most vulnerable, the results have been mixed. Knowing this, and determined nevertheless to pursue a digitisation programme which reduces costs by cutting courts and centralising support staff from local offices into national centres, the Government has chosen to plough on and discover the data only after reforms are irreversible. This Bill must not be allowed to facilitate further ad-hoc changes.

The amendments I have put forward have several different foci but they are united by core values. Those are the belief that Parliament should have oversight of major changes to our justice system, and the determination that any change must increase access to justice. For the former, I have tabled amendments which would aim to ensure that rules agreed by the committee would need to come before Parliament. Given that the OPRC will have the power to significantly alter the way many people engage with our justice system, it seems reasonable that an elected body should have the final say over major new reforms.

The latter is more complicated. Throughout the reform programme, Labour have raised concerns that each change could lead to ‘digitisation by default’, potentially excluding those for whom online technologies are inaccessible. Whether proceedings are criminal, civil, tribunal, probate or family in nature, there are good reasons to feel that making digital the default option will in many cases restrict or entirely remove access to justice. One current clause recognises the Government’s duty to ‘make support available for digitally excluded people’; however, it is vital that this support is not just technically available but that it is properly funded and sufficiently advertised. That is why I placed an amendment which mandated the Minister to provide support, ‘including, but not limited to, a free helpline’.

This requirement is due to clear evidence that helplines that are not free will inevitably fail to reach those most in need. Support needs proper funding and advertising. Currently, even where there are mechanisms available to provide help, all too frequently they are poorly promoted and underused. Another written question I put to the MoJ found that since it was set up in February 2018, a helpline for those who struggle with video hearings in Court has averaged around one call a day. That is both damning and instructive.

The Bill also sets out who will be in the committee. Currently, it proposes 3 judges, just one person drawn from either the barrister, solicitor and legal executive professions, one person with experience of the lay advice sector’ and one with IT expertise. It is unclear why this committee need be so small; by way of comparison, The Civil Procedure Rule Committee has 16 members. One of our amendments has sought to ensure that there is representation from each of legal professions rather than a single, shared representative. Even more importantly, we have argued that the committee should require a representative for the digitally excluded. Mind, the mental health charity, have emphasised how important it is to have proper representation of those who face challenges with digital equipment, in particular those with disabilities. Without that kind of expertise, we risk a lack of understanding of the impact of proposed rules on the most vulnerable.

Going forward, the reform programme needs continuing scrutiny and far more extensive academic research to demonstrate what changes are really needed and which are just ideological cuts. In 2018, the House of Commons Public Accounts committee expressed concern over the inability of HM Courts and Tribunals Service to ‘articulate what the new system would look like’. That criticism remains as compelling today as it was then.

Yasmin Qureshi MP is Labour MP for Bolton South East and Shadow Justice Minister. 

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