In the latest of my reports on the Judicial Review and Courts Bill, I reveal a stealthy and increasing power grab by successive lord chancellors. It’s to be found in a chapter of the bill that will simplify civil, family and tribunal proceedings that are conducted online.
I wrote about the origins of online justice in a lengthy paper for the Legal Education Foundation a few years ago, comparing the development of internet-based procedures in England and Wales with ground-breaking tribunals in British Columbia and elsewhere.
For years, now, courts have been taking steps to reduce their reliance on paper and conduct more of their proceedings electronically. That has been given a huge boost by the pandemic. But there has also been a conceptual change. Plans to set up a new online court have been replaced with moves to digitise existing courts and tribunals.
The rules and procedures for civil litigation in England and Wales are currently to be found in two hefty tomes known as the White Book. A set, either printed or online, currently costs £850 a year. The rules have grown to their present bloated size from little more than 100 pages in the Supreme Court of Judicature Act 1875. The judges’ ambition — indeed the requirement under clause 18 of the bill — is that the new rules will be “both simple and simply expressed”.
Online Procedure Rules
This is the third time that the government has tried to set up an online procedure rule committee (clause 21) to draw up rules for non-criminal proceedings that will be “initiated by electronic means”.
The first attempt was in the Prisons and Courts Bill introduced by Liz Truss in 2017. This lapsed when Theresa May took her ill-fated decision to hold a general election in June 2017.
In the late spring of 2019, the government found it had parliamentary time on its hands despite — or perhaps because of — the Brexit crisis. So David Gauke, who had succeeded Truss (and others) as lord chancellor, quietly launched the Courts and Tribunals (Online Procedure) Bill. That too lapsed when parliament was prorogued in September 2019. Although it revived when the Supreme Court gave its ruling in Miller 2, the bill lapsed again when the session was successfully prorogued in October 2019.
Sir Terence Etherton, who was then master of the rolls and head of civil justice, did not seem too worried at the time. He observed that “rules for the online civil money claims pilots are currently being made by the Civil Procedure Rules Committee, which has ably adapted and learned how to make rules for a digital system”. But his successor Sir Geoffrey Vos sees the offer of a new rule-book as an opportunity to simplify procedures and make the courts more accessible.
A comparison of the 2017, 2019 and 2021 bills shows drafting refinements as well as changes of substance. Under the current bill, for example, litigants can use non-electronic means only if they are not legally represented. The new bill no longer refers to the “digitally excluded” but still requires “the provision of such support as the lord chancellor considers to be appropriate and proportionate for persons who require online procedural assistance”.
Henry VIII and mission creep
But the most significant change is to be found in a so-called Henry VIII clause that, in specified circumstances, will give the lord chancellor a power to amend or repeal acts of parliament by simply signing an order and waiting for it to be nodded through by MPs and peers.
In the following extracts, the italics are mine.
Clause 43(2) of the 2017 bill said:
The Lord Chancellor may by regulations amend, repeal or revoke any Act passed, or provision under an Act made, before the coming into force of this section to the extent he or she considers necessary or desirable in order to facilitate the making of online procedure rules.
Clause 10(2) of the 2019 bill said:
The Lord Chancellor may by regulations amend, repeal or revoke—
(a) any Act passed before this Act or in the same Session, or
(b) any provision made under an Act before the regulations come into force,
to the extent the Lord Chancellor considers necessary or desirable in order to facilitate the making of Online Procedure Rules.
Clause 26 of the current bill begins:
(1) The Lord Chancellor may by regulations amend, repeal or revoke any enactment to the extent that the Lord Chancellor considers necessary or desirable in consequence of, or in order to facilitate the making of, Online Procedure Rules.
(2) In subsection (1), “enactment” means any enactment whenever passed or made, including an enactment comprised in subordinate legislation within the meaning of the Interpretation Act 1978.
We see here a stealthy but steady mission creep from successive lord chancellors. The 2017 bill referred to acts of parliament passed before the new section was brought into force. The 2019 bill would have extended this to acts passed a few months afterwards. But the current bill sets no time limit at all. It’s as if each lord chancellor is trying to grab more powers than the one before.
Let’s imagine that parliament passes new legislation of some sort in 2030. There is a change of government in 2035 and the new lord chancellor thinks the 2030 legislation gets in the way of procedural rules that the incoming government wants to introduce. Using legislation passed in 2022, the lord chancellor will have power to sign an order in 2035 which, if all goes to plan, will repeal legislation made by parliament in 2030.
It’s no excuse to say that this is very unlikely to happen — and the clauses are simply included just in case. Having got a foot in the door, ministers are pushing it a bit further open every time they try. Soon, they’ll be pushing at an open door.
If they really need to amend or repeal an act of parliament, ministers should take the trouble to bring forward legislation in the normal way.
Don't forget that a variety of civil litigation is now carried on under sets of rules which are not directly covered by civil proceedings rules (the White Book) at all. My own area is family proceedings covered by Family Court Practice ('the Red Book') to which I contribute. Now if the LC could take us back to one set of rules for all civil proceedings (ie non-criminal) that would be a great step forward (and save the customers a few bob on their lawyers, too).