Considered in Grand Committee
My Lords, the statutory instrument before us regulates the remote observation of court and tribunal proceedings across our justice system. Essentially, this instrument builds on the very positive experience of remote observation during the pandemic and extends and makes permanent powers that were originally contained in the emergency coronavirus legislation.
The instrument was made using the “made affirmative” procedure on 28 June 2022. It is fair to point out that the scrutiny committee of this House has been somewhat critical of the use of the “made affirmative” procedure in this case, as distinct from the normal draft affirmative procedure. My understanding of what has happened is that the enabling legislation, which is the Police, Crime, Sentencing and Courts Act 2022, was already delayed in Parliament. The department felt that we should move away from the emergency legislation as soon as possible. The emergency legislation then in force in any event did not cover certain tribunals, including employment tribunals, the Court of Protection and certain other jurisdictions, so the decision was made to press on using the “made affirmative” procedure. None the less, the comments of the scrutiny committee have been duly noted and I have reminded the department of the importance of ensuring full parliamentary scrutiny of all legislation, including legislation such as this.
The Committee will be aware that, at the outset of the pandemic, our courts and tribunals moved swiftly to holding hearings remotely using audio and video technology. I can take this opportunity to pay tribute to HMCTS for its work in enabling that to happen and the principle of open justice to be maintained.
The legislation permitting remote observation was very well received, especially by court reporters, legal bloggers and others who do valiant work in reporting what happens in our justice system. It allowed the courts to offer, in effect, the digital equivalent of the public gallery.
The Government have therefore taken the decision to make remote observation a permanent feature of our justice system and expand it to all our courts and tribunals, save for the Supreme Court and certain devolved courts and tribunals, and to any type of hearing, whether remote, in person or hybrid. The order is made, with the concurrence of the Lord Chief Justice and the Senior President of Tribunals, by the Lord Chancellor.
The overall aim is to strengthen the transparency, openness and accessibility of the justice system. It is hoped that it will also have the incidental effect of strengthening the sometimes struggling profession of court reporting by providing modern, digital solutions, although public galleries of course continue to be available.
Various safeguards are contained in the enabling legislation which prevent participants making unauthorised recordings or transmissions of the proceedings. It is important to note that at the heart of the provisions is the principle of judicial discretion. It will be for judges, magistrates, coroners and tribunal members to decide on a case-by-case basis whether to provide transmissions of proceedings to members of the press and public.
This does not enable indiscriminate broadcasting or live streaming of proceedings, although that occurs in certain jurisdictions, such as the Supreme Court and the Court of Appeal. It enables transmissions of proceedings to be made to individuals who have requested access and have identified themselves to the court or, in certain circumstances, to designated live-streaming premises. There is no obligation on judges to allow transmissions to be made to remote observers during a traditional in-person hearing, but it is hoped and assumed that this technology will greatly facilitate access to justice for many. Around 7,000 hearings a week now rely on audio and video technology. That is one of the reasons why this statutory instrument was brought forward as early as it was. The Government seek to strengthen and support the principle of open justice and to increase the accessibility and transparency of our justice system as part of our wider programme of modernising that system.
My Lords, I am sure this instrument will be widely welcomed. As the noble and learned Lord has explained, this builds on experience, which it is good to do, in two beneficial ways: it is making a temporary arrangement permanent and it is spreading the technological discretion right across the whole system, which is a very good idea. One does not want gaps in an exercise of this kind.
I have a point to raise on the detail of Regulations 3 and 4, simply to try to understand how this system will work. As the noble and learned Lord has explained, this will be an exercise of a discretion. Regulation 3 gives two very sensible matters on which the court must be satisfied, particularly sub-paragraph (b) on technological arrangements and so on, before the discretion is exercised. I have no problems with that, because it is very obvious that this needs to be done. I imagine that, if the court is being invited to exercise a discretion, it would be up to the advocate asking for it to provide the material the court needs to be satisfied with the points set out in Regulation 3.
Regulation 4 is trickier. It is a list of very sensible points which we are told the court must take into account. This is another example of something that has been happening over the years; in the Judicial Review and Courts Bill in particular, there was a list of things that the court must take into account, which caused some concern—some said the word “must” was wrong because it opened the door to criticism of the court if it perhaps failed to take something into account that it should have done. That problem lurks under Regulation 4. How will one be satisfied that the court has taken all these points into account without the court going through the entire list and saying that it has looked at sub-paragraphs (a) to (f)? Have the Government any thoughts on how this will work in practice? Is it simply to be assumed when the court exercises discretion that it has done this, or should it be transparent and laid out in some kind of understandable practice that these points will all be addressed and that the public will be told why and how the court has been satisfied on them?
I raise this not to tease the noble and learned Lord; it is just that somebody, somewhere, might start complaining that, let us say, sub-paragraph (a) has not been taken into account because the magistrate or the judge did not say so. One needs to be a bit careful with these lists to be sure how the thing will actually work in practice. I simply throw that out for the noble and learned Lord to consider. Maybe a definitive answer cannot be given today, but somebody needs to think about it, and maybe guidance needs to be given to those who are exercising the discretion so that they do not fall into a trap.
My Lords, we support these provisions. They will replace and extend the temporary emergency provisions included in the Coronavirus Act 2020 which allow for certain proceedings to be observed remotely and recorded. We believe in the principle of open justice and think this goes a step towards that and should be welcomed for that reason. However, we are aware that sometimes legal proceedings are very sensitive and painful, and attending a court or tribunal can be a difficult experience for people. For that reason, decisions regarding which types of proceedings should be broadcast or available to different people to observe should not be taken lightly. I am very aware that different jurisdictions will have different considerations in that respect.
Just for the record, I sit as a magistrate in the family, youth and adult jurisdictions, and I sat all the way through the coronavirus pandemic. I started off in the family jurisdiction doing court hearings by BT MeetMe and we graduated to MS Teams. We were making extremely difficult decisions which we felt we had no alternative but to make because of the circumstances which we found ourselves working in as a court.
Of course I agree with the objectives behind this statutory instrument, but I wanted to make one substantive point on the level of technology in these courts. It is highly variable between jurisdictions. When one is dealing with litigants in person, it is not unusual for them to be trying to do things on their mobile phones. Sometimes they have poor signal and all sorts of handicaps if they are trying to take part in court proceedings remotely. In my experience, when a court is 100% remote —that is, everybody is remote—it can be made to work. However, it is more difficult when it is hybrid—when some parties are in the room and others are not. Whether it is fair to go ahead with a hearing is ultimately a matter for judicial discretion, but certainly in my experience, hybrid hearings in various jurisdictions can be detrimental to people who are not physically in the room, and the court needs to be aware of that when it is deciding whether to go ahead with a case. Nevertheless, having said that, we welcome this statutory instrument and we will be happy to support it when it is put to a vote.
My Lords, thank you. On the point raised by the noble and learned Lord, Lord Hope of Craighead, I am not sure that I have an answer off the cuff that I am able to give, and I entirely understand the point he makes as to the difference between “must” and “may” or similar expressions. I think the presumption, which I do not have the confidence to reproduce in Latin but which is to the general effect that everything is presumed to be regular unless the contrary is shown, would kick in here, and it would be a matter for the Lord Chief Justice to decide whether some further guidance is made necessary. I hope that those two points will at least accommodate the observation of the noble and learned Lord. However, the overall point is understood.
The points regarding the general broadcasting of legal proceedings, and the sensitivity of particular proceedings, are also fully understood. The statutory instrument does not permit general broadcasting but leaves it to the discretion of the tribunal whether to permit this at all—and it will be a difficult discretion sometimes. Thirdly, as to the level of the technology, its variability and the difficulties faced by people on mobile phones, this is also recognised, in particular by HMCTS. It is expensive and challenging to equip courts to conduct legal proceedings remotely. To an extent it has got better as time has gone on, but we are still in a learning phase. Again, I will take that comment back and see what we can do to improve the efficiency and fairness of hybrid proceedings, in particular, which the noble Lord, Ponsonby, mentioned.
Having made those comments on the points raised, I commend the instrument.