Maynard: Online processes will not be obligatory
MPs have urged the government to learn the lessons of previous major IT projects and move cautiously with the development on online courts.
Justice minister Paul Maynard pledged in response that “we should never introduce more complexity or technological innovation merely because we can”.
They were speaking during the second reading of the Courts and Tribunals (Online Procedure) Bill, which lays the legal groundwork for online courts and tribunals.
During the bill’s passage the House of Lords, the government responded to pressure from peers by introducing further protection for those unable or unwilling to use online processes.
In this week’s debate, Mr Maynard stressed that “the fact that an online process is available makes it in no way obligatory for people to use it. There is still a case for physical hearings and very much still a case that people who wish to use a paper system should be able to do so”.
Amid concerns about “digitisation by default”, Labour shadow justice minister Yasmin Qureshi said that, “although digitisation is necessary, it needs to be done with diligence and accuracy”.
She continued: “Most importantly, it must not be done simply to achieve savings. Given that digitisation will have a substantial impact on our justice system, it is incredible that there still has not been any proper, publicly funded academic research into the impact of digital courts on access to justice.
“Instead, the Ministry of Justice seems happy to shell out huge consultant fees – over £60 million last year – and roll out untested and ad hoc changes.
She argued that the government has chosen to go “well beyond the relatively modest recommendations” of the then Lord Justice Briggs in 2016.
“Further, instead of piloting individual areas, the government’s desire appears to be to digitise whole swathes of the courts system, with limited oversight.
“Amendments put forward in the other place tried to ensure that the piloting of new stages would be mandatory. That still seems a reasonable measure to ask for, bearing in mind how many internet breakdowns we have had in the court system in the last few months.
“It is really important to try out a pilot scheme to see how these things work. However, the government do not appear to want to do this.”
Bob Neill, Conservative chair of the justice select committee urged the Ministry of Justice to “please learn the lessons of transforming rehabilitation, which had worthy objectives and could have succeeded in joining up probation and prison in a better way, but it was rushed”.
He continued: “It was not piloted properly and was taken at too great a speed. There is an argument that considerations of finance and expediency were allowed to weigh more heavily in the outworking of the process than questions of access to justice and outcomes, and for that reason it did not achieve either of those desired objectives…
“I am confident that the minister and his colleagues will do it differently, but it is worth bearing in mind that back in 2016, Lord Briggs said that ‘it would be entirely unsatisfactory… to make recourse to the [online court] compulsory until a proven structure of assistance for those who need it was designed, tested and put into full operation’.
“That still holds good. Nothing in the Bill prevents that being done, but it is a question of the political will and the resource being put into it by the government to achieve that.”
Speaking for the SNP – whose interest is in UK-wide tribunals – Stuart McDonald agreed that “we must proceed cautiously, and on the basis of evidence… research and testing are vital”.
He emphasised the role of Parliament in scrutinising the roll-out of online procedures “and consider whether we need to put tougher provisions about post-legislative scrutiny in the bill so that we can ensure that progress is made at the right pace”.
MPs also echoed calls from peers for greater checks on ministerial powers in relation to making the rules and that there should be a solicitor, barrister and chartered legal executive on the rule committee.
Mr Maynard responded: “Let me make it clear that innovation is crucial to delivering modernisation, but we should never introduce more complexity or technological innovation merely because we can. We should do so because that innovation satisfies our requirements for proportionality and accessibility within the justice system.
“We always need to work with the grain of human nature, as our law is essentially a human contract in and of itself. Changes should never result in less justice or in people being incentivised not to behave in their own best interests.”
On piloting, he said: “I hear the point that there is no need to rush, and we are starting by focusing on civil claims under £25,000 being conducted online. Evaluation is important, and I have made it clear that I do not want Her Majesty’s Courts and Tribunals Service to mark its own homework.
“There will be an independent evaluation, and the panel has already met. It will have academic input in particular to look at the outcomes in relation to access to justice and the cost to users.”
Though not moving on membership of the committee, the minister said the bill allowed the Lord Chancellor to expand it “when he sees fit to do so”, while the committee could also set up sub-committees or bring in “any wider expertise that it needs to draw up the procedures that it thinks appropriate”.
Mr Maynard also argued that having powers reside with the Lord Chancellor meant that direct accountability to Parliament was maintained.
“We are not trying to shift the constitutional balance within the Bill. We are looking to maintain that balance, which is why we have sought to ensure that the Bill mirrors the long-standing arrangements for the existing rule committees.”
Some extraordinarily patronising comments here. Testing, piloting, exercising caution is standard. Retaining physical hearings when appropriate was made clear in the Civil Justice Councils Report on ODR . The best advice would be for HMCTS to follow the advice in that Report rather than ignore it in so many ways ( building in-house, ignoring successful court models , starting st the wrong end of the litigation process, etc) as I have said before in this journal. As to the Ministers comment of an absence of research on digital court impact on access to justice it’s annoying to find him so ignorant of the Council of Europe Resolution on that very subject thst the UK endorsed. All you need to know is there.