As part of an ongoing project looking at the various rule committees that govern the processes within our justice system a number of concerns have come to light about the new Online Procedure Rule Committee (OPRC).
With the Shadow Minister for Justice using phrases like ‘totally inadequate’ and ‘potentially weak‘, and top Judge Mr Justice Roth expressing doubt the committee ‘would be able to manage the workload‘ careful scrutiny will be needed of the OPRC when it is established next year.
What do we know about the OPRC?
The committee has yet to be established although a few details have been revealed in a candidate information pack for the role of Legal Expert.
We’re told the successful candidate would have an “expected start date of March 2023” with members required to “attend approximately 10 Committee meetings a year“.
“The OPRC is a new rule making committee which will play a critical role in further developing a digital justice system. It will be a key enabler for the shift towards a more integrated, efficient digital approach to justice.
“The OPRC will need to develop and shape a new and innovative approach to rule making
appropriate for delivering digital justice. Its work will support the use of innovative methods of resolving disputes and help define the operation of pre-action dispute resolution portals. It will consider procedure applicable across the Civil, Family and Tribunal jurisdictions.
“The six members of the OPRC will consist of three members of the judiciary plus a legal practitioner, a member from the lay advice sector and a member with IT expertise. The OPRC has strong judicial support from the Lord Chief Justice, Master of the Rolls, President of the Family Division and the Senior President of Tribunals, with the 3 judicial posts on the OPRC likely to be initially filled by the senior judiciary from each jurisdiction.”
Concerns
A number of worries about the function of the OPRC were initially raised at a meeting of the Tribunal Procedure Rule Committee back in June 2019.
Mr Paul Daly, the Head of Court Reform at the MOJ, is quoted as saying in published minutes that:
“…the Courts and Tribunals (Online Procedure) Bill 2019 follows a longstanding commitment from Government to digitise court and tribunal processes and findings from the Lord Briggs Report 2016.
“The Bill’s intention is to ensure that online services are designed for the everyday user – by creating an Online Procedure Rule Committee (OPRC) to sit alongside existing Rule Committees, … to design rules to support online services ensuring consistency…“
Christine Martin, then the Resident Judge of the Upper Tribunal (Immigration and Asylum Chamber), asked Mr Daly how the OPRC would fit with the current role of each Rule Committee as each committee already makes online rules.
Mr Daly responded that “the OPRC is there to ensure that there is a consistency across the Rule Committees and between each set of procedure rules. The intention of the OPRC is to build on the work set to take place across HMCTS such as the ongoing digitalisation reform programme. There may be areas within HMCTS in which Rule Committees have not yet identified appropriate online rules, with the OPRC to cover these areas.“
Mr Justice Roth commented that he was “unsure how the OPRC, composed of five members, would be able to manage the workload of making Online Rules across Civil, Family and the Tribunals.“
Mr Daly, on behalf of the MOJ, said “that the OPRC may in due course seek to expand its membership as the workload increases, although he recognised that under the Bill this would require secondary legislation.“
Tribunal member Michael Reed said he was confused over the OPRC’s jurisdiction asking “when the OPRC comes into force will the TPC only review those rules which do not cover online proceedings and the OPRC then look at those which are online?”
Mr Reed also said that he was “concerned about how the TPC and the OPRC would coordinate on rule amendments, bearing in mind that low-value civil money claims are much simpler than many types of proceedings in Tribunals.“
Mr Daly replied saying that there would be a gradual introduction of the Online Rules, with low-value civil money claims likely to be the first to be governed. He said the “focus of the OPRC was to ensure accessibility and ease in understanding the rules for litigants“.
Mr Reed questioned the establishment of an OPRC which “may have been appropriate at a time when the Government had intended to introduce a distinct Online Court” but he didn’t know “why the Government had decided to proceed with introducing the OPRC even though plans for an Online Court had been dropped.“
The minutes do not record a response to this comment.
Ultimately the Courts and Tribunals (Online Procedure) Bill 2019 fell away when Parliament was prorogued in 2019.
However, in 2021 the Judicial Review and Courts Bill reintroduced a provision to establish an Online Procedure Rule Committee.
The Tribunal Procedure Committee again discussed the potential implications of the OPRC. The following concerns and observations, echoing those said in 2019, were said to have been expressed:
- The TPC was concerned how making online rules by the OPRC would interact with the role of the TPC to consult on and make rules for the same tribunals.
- The TPC considered whether the small size of the OPRC membership would be able to
effectively manage the anticipated workload. - The TPC noted the lack of practical experience in tribunals or experience of advising persons involved in tribunal proceedings on the OPRC.
- The TPC queried how the seamless interchange between online and offline rules would affect ease of understanding for litigants.
Meanwhile, a Public Bill Committee meeting held in November 2021 was told that barrister Richard Leiper KC had also expressed concerns over the size of the committee:
“The current composition of the committee is a total of 6 people. That is in contrast to the civil procedure rule committee, which has 18 members. The family procedure rule committee has 18 members.
To me, given the potential breadth of the rule that could be set by this committee, having one senior judge, a couple of other judges, one practitioner, one layperson and one computer person is simply not enough.
That is partly because the scope for the procedures would be trespassing on areas which it is likely that no member of the committee would have any knowledge of.“
Alex Cunningham, Shadow Minister for Justice, echoed these remarks and called the proposed six members “totally inadequate“:
“I am disappointed that the Minister does not recognise how such a small committee may not have the length and depth of expertise that is required to carry out the jobs that he requires of it. To have one IT expert and just one appointed judge strikes me as totally inadequate in the circumstances.“
Mr Cunningham concluded in rather blunt terms:
“I have not come across anybody within the sector who does not think that this committee is potentially weak, and will not be able to do the job that it is required to do.“
James Cartlidge, Parliamentary Under Secretary of State (Ministry of Justice), disagreed saying:
“When the committee comes to develop rules for courts and tribunals, it will be able to consult or seek advice from those with relevant qualifications … The committee is specifically designed to be small and agile in its decision making“
In October 2021 Mr Justice Roth, the chair of the Tribunal Procedure Committee, met with the Master of the Rolls Sir Geoffrey Vos.
Roth J was given reassurances that the TPC would retain responsibility for the substance of the tribunal rules and its jurisdiction was not being curtailed by the introduction of the OPRC.
The OPRC would be “focused on general provisions to ensure a uniformity of approach across all the court and tribunal rules as regards the online platform and it was not expected to get involved in more detailed rules governing the different tribunals.“
The Master of the Rolls with the support of the Senior President of Tribunals suggested that there should be a common member of the TPC and OPRC, who would help to ensure effective liaison between the two committees
The Senior President of Tribunals noted that if necessary he could ask for the appointment of an additional member of the TPC for this purpose.
Roth J told the TPC that “he personally felt reassured by the discussion and clarification of what was envisaged to be the interaction between the roles of the OPRC and the TPC.“
Comment
A significant number of hearings across a multitude of jurisdictions can accurately be described as being ‘Online’. Why a separate committee is needed remains to be seen and there is a risk that a new patchwork of rules makes justice even more inaccessible and impenetrable to the masses.
The scope of the committee has yet to be narrowed but one area that is ripe for clarity is open justice and the ability of the public to know about and access online hearings. The mouseinthecourt will be keeping a keen eye on whether this is something that can be raised with the committee.
Whether Master of the Rolls Sir Geoffrey Vos actually understands digital justice is an interesting question. In a speech for the London International Dispute Week 2022 he said
“…what I mean by digital justice is an entirely smart system that operates online, or even on-chain, to identify and resolve the issues between the parties in a far more streamlined and efficient way than the current pleading-based processes.“
Whilst “Judges, arbitrators or experts will still be responsible for the ultimate decision making“, Sir Geoffrey suggested that “routine or interim processes may be automated and resolved by algorithms“.
The speech, described as “painful” by one commentator was derided by Harold Thimbleby, a Professor of Computer Science, who tweeted “the digital here is delusional“.
Will the OPRC be a success? Watch this space.
Mouse in the Court 
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