Courts and Tribunals (Online Procedure) Bill [HL]

Report stage (Hansard): House of Lords
Monday 24th June 2019 Lords Chamber

Report

15:08

Clause 1: Rules for an online procedure in courts and tribunals

Amendment 1

Moved by

[Lord Keen of Elie]

1: Clause 1, page 2, line 2, at end insert—
“(3A) For the purposes of subsection (3)(a), regard must be had to the needs of those who require technical support in order to initiate, conduct, progress or participate in proceedings by electronic means.”

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I begin by thanking noble Lords for attending this debate. I extend my thanks to those noble Lords who have engaged with me on the Bill through its last stages,

The amendments in this first group are all about access to justice under the new online procedure, an important topic that I know we all wish to get right. I shall open with the government Amendments 1, 4 and 18, which appear in my name. I believe that we are united in seeking to ensure that we get this right, particularly in our steps to ensure that unrepresented litigants have the right levels of support for this procedure.

On Amendments 1 and 18, as I indicated, we are committed to accessibility and to providing support to help many people to use the online services where otherwise they would find it difficult. Amendments 1 and 18 provide that, when making rules, the Online Procedure Rule Committee must try to ensure that the procedures are accessible and fair. They also require the committee to have regard to the needs of those who require technical support to engage with the online procedure.

I am, however, aware that the responsibility for making rules does not reside only with the committee. The Lord Chancellor must also allow the rules for them to come into force. Therefore, as an additional safeguard, Amendment 18 provides that, when allowing or disallowing the rules, the appropriate Minister must have regard,

“to the needs of those who require technical support in order to initiate, conduct, progress or participate in proceedings by electronic means”.

The amendments effectively cover support for those people who cannot easily access our digital services due to a lack of digital skills, a lack of confidence, perhaps, or a lack of tools.

I think it is clear from this that, throughout the rule-making process, our focus is firmly on the needs of litigants, from when the Online Procedure Rule Committee develops rules to the end of the process when the appropriate Minister decides whether to allow them. I consider that these amendments are comprehensive and wide-ranging enough to ensure that the system will be accessible and fit for purpose. In developing the amendments, we have listened to, and sought to address, the concerns expressed by noble Lords about the provision of support to unrepresented litigants. It is in these circumstances that I shall press Amendments 1 and 18.

The House has heard commitments from us, in Committee and at Second Reading, to the fact that paper channels will remain available for all litigants in person. We understand the importance of access to justice and recognise that, no matter how user-friendly our IT services are, some people will not have the ability or the confidence to use them. In the Committee debate, there was a strong feeling that, despite our reassurances, the Bill was not clear enough on the matter of a paper route. We have considered the points raised in that debate and, although it has always been our intention to provide a paper channel for users, I recognise that noble Lords wanted that commitment to be reflected in the Bill. Accordingly, the Government’s Amendment 4 clarifies that litigants can submit their online applications by non-electronic means, which of course includes the use of paper. It is in these circumstances that I will be moving government Amendment 4. I beg to move.

Amendment 2 (to Amendment 1)

Moved by

[Lord Marks of Henley-on-Thames]

2: Clause 1, after first “to” insert “providing for”

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I will speak to all the amendments in this group that I have anything to do with. I welcome the Government’s Amendment 1 requiring that, in the context of making the rules accessible and fair,

“regard must be had to the needs of those who require technical support in order to initiate, conduct, progress or participate in proceedings by electronic means”.

I am grateful to the noble and learned Lord for the time that he and his Bill team have spent and the trouble that they have taken to incorporate provisions in the Bill to assist those who may find it difficult to access online proceedings, and to discuss with me and others the amendments that we proposed. Our original amendments, proposed in Committee, went further than the provisions now agreed by the Government, but we are satisfied that the needs of the so-called digitally excluded will be protected by the new provisions, with the benefit of the amendments tabled in this group, which are, as I understand it, largely agreed by the Government.

15:15

The Government’s amendment proposes that,

“regard must be had to the needs of those who require technical support”.

We have offered two improvements in Amendments 2 and 3, in my name and the names of my noble friend Lord Beith and the noble Lord, Lord Pannick. They require, first, that regard must be had to “providing for” those needs, which we say strengthens the requirement, and, secondly, that the support should not be limited to “technical” support, which could give the impression that the only support available would be with the operation of the computer system. This might be understood to be considerably less support than that which has been made available by HM Courts & Tribunals Service under the present pilot schemes, which we applaud and wish to see replicated across the board in the implementation of the online procedure. We are grateful to the noble and learned Lord for agreeing to accept these amendments.

Amendment 4 is designed to enable parties to initiate proceedings by non-electronic means. This is intended to enable parties who want to start proceedings with paper documents to do so, as the noble and learned Lord explained. The paper documents will then be scanned into the online system, and will be made available online to all, as the noble and learned Lord explained in Committee. However, this amendment needs the addition of Amendment 5, in the names of my noble friend Lord Beith, the noble and learned Lord, Lord Judge, and the noble Lords, Lord Pannick and Lord Beecham, which I support, to ensure that all documents, not only the initial claim, can be submitted in paper form and scanned for use with the simplified online procedure. It also ensures that a litigant who wishes to use a paper procedure can receive paper documents at his or her choosing—that is, receive as well as transmit them. My understanding is that, while the Government’s position is that they do not accept the precise terms of Amendment 5, the noble and learned Lord intends to bring back an amendment of like effect at Third Reading. That is very welcome news.

I turn now to Amendment 9, in my name and that of my noble friend Lord Beith, and my manuscript amendment, Amendment 9A. From our point of view, these are extremely important. The new clause would impose a duty on the Lord Chancellor, who is responsible for HM Courts & Tribunals Service, to arrange for the provision of support for digitally excluded people. It aims to meet a concern powerfully expressed by Lord Justice Briggs in his review, and by a number of noble Lords at Second Reading and in Committee. Our original amendment, as in the Marshalled List, includes subsections (2) to (4), which would give the Lord Chancellor a regulation-making power in relation to such support. However, the Government have effectively taken the position that the Lord Chancellor needs no regulations to tell him how to fulfil his statutory duties. That was their first point. Their second was that the concurrence requirement in the subsections offends against the principle in the concordat between the Executive and the judiciary that matters involving the expenditure of resources, as this does, are for the Government rather than the Lord Chief Justice. On reflection, we have accepted those points, so I have tabled Amendment 9A, which maintains the terms of subsection (1) of Amendment 9 but omits the other subsections.

I am very grateful to the Public Bill Office for its procedural help this morning, which has enabled us to put down an amendment on which we and the Government are agreed. I also thank the noble and learned Lord and his Bill team, particularly Emma Cotterill, for the assistance they and parliamentary counsel gave us in the wording of this clause last week and for agreeing to accept the amendment.

To summarise the amendment, we felt it extremely important that the Lord Chancellor be under a statutory duty to make support available, to add teeth to the requirement that the rules should have regard to the needs of the digitally excluded. This amendment achieves that.

We also welcome government Amendment 18, which provides that, in allowing or disallowing rules, the appropriate Minister must have regard to the needs of those requiring support.

On Amendment 7 from the noble Lord, Lord Beecham, which potentially gives claimants a choice of applicable rules, we fully support his concern to protect the right to a fair and public hearing, to which Article 6 of the European Convention on Human Rights is directed. However, for the reasons explained by the noble and learned Lord, Lord Thomas, in Committee, we do not see it as sensible to have two systems operating in parallel in proceedings to which the Online Procedure Rules would normally apply. The Bill itself does not exclude oral hearings in proceedings under the Online Procedure Rules. We would expect the rules to make provision for oral hearings where appropriate. I beg to move.

[Lord Beith (LD)]

My Lords, I tabled the amendment to which my noble friend referred, Amendment 5 to government Amendment 4, because I did not believe that the government Amendment, helpful though it is, fully satisfied the clear intention set out by the noble and learned Lord, Lord Keen, that somebody who feels that they can only engage with this process on paper should be able to do so without the creation of a parallel procedure or there being two different processes. What we have is one simplified procedure in which documentation is held online but to which people can make submissions by paper, not only initially but at any necessary subsequent stages. For that to be a reality, they must also be able to receive the relevant documentation on paper through the work and assistance of the Courts Service. I think that some ambiguity has been created.

I note that the Minister wrote to us about the requirement to initiate proceedings by electronic means, which requires rules to be made to enable documents submitted in paper to be treated as if they were initiated by electronic means. The wording of government Amendment 4 appears to refer to the initiation of the proceedings, rather than the initiation of subsequent documents, and is silent on the entitlement to receive documents on paper. The simple issue, which some of us may have faced in dealing with other organisations, is that you cannot have a situation in which you make a submission on paper and have no clue what will happen afterwards because you are relying on the paper process. The Government’s intention was clear in everything the noble and learned Lord said, but it is not clear in the amendment. My addition to the Government’s wording would make it clear, although I fully accept that this could be dealt with in words in a different way or at a different point in the parent amendment. My noble friend is confident that the Government have got the point and are going to do something about it, but I would like the noble and learned Lord to make that clear.

[Lord Pannick (CB)]

My Lords, I thank the Minister and the Bill team for their very positive response to the concerns expressed around the House in Committee. I agree with all the points made by the noble Lords, Lord Marks and Lord Beith, and I support their amendments. I am particularly concerned about government Amendment 4 for the reasons that the noble Lord, Lord Beith, indicated. It is expressly confined to the initiation of proceedings and does not in terms cover, as it must, the right to submit further paper documents and to receive paper documents if the litigant so elects. I very much look forward to the Minister confirming what the noble Lord, Lord Marks, indicated—that the Minister intends to address this point at Third Reading.

I much prefer the solutions offered in the various amendments to which the Minister and the noble Lords, Lord Marks and Lord Beith, have spoken, to Amendment 7 tabled by the noble Lord, Lord Beecham, with all due respect to him. As I understand it, his amendment would allow for regulations, under which the party bringing proceedings could choose whether proceedings are under the Online Procedure Rules or the standard rules. I can see no justification, particularly if the other amendments are agreed, for allowing people to choose which rules apply, especially if paper documents can be fed in and received under the Online Procedure Rules. Such an amendment would, I fear, damage the whole purpose of the Bill. It would give litigants an option as to which rules apply and benefit no one other than those who wish to make a simple claim subject to a more complex and more expensive procedure as, for example, a negotiating tactic.

[Lord Judge (CB)]

My Lords, I shall say just a word or two in support of these amendments. Amendment 2, by adding the two words “providing for”, and Amendment 3, by removing the one word “technical”, would rather improve the clause. Amendment 5 improves government Amendment 4, which itself was an improvement. If I may, I will paraphrase how I understand Amendment 5 would work: if you are not digitally educated and you would prefer to use paper you may do so, and if you do your papers will be incorporated into the electronic system. The amendment would provide that you are entitled to continue to use your own paper and your own paper system because the electronic system would be perfectly well able to provide you with all the paper you need. There should be no difficulty about it at all.

Amendment 5 is consistent with Amendment 18 to Clause 7, which has the interest of those who require technical support to be protected. It also, for the reasons given by the noble Lord, Lord Pannick, effectively makes Amendment 7 in the name of the noble Lord, Lord Beecham, to Clause 3 redundant because the paper user would then not be at any disadvantage. For the reasons he has given, the idea of having two systems running side by side would, among other things, be a recipe for those who do not want justice to be done and who want to confuse and to avoid getting the system to court for a hearing.

[Baroness Drake (Lab)]

My Lords, I too will speak to Amendments 3, 5 and 9A. In their Amendment 1, the Government accept that to secure accessible and fair court online practice and procedures, regard must be had for the needs of those who require support to initiate, conduct, progress or participate in electronic proceedings. Their Amendment 4 would allow a person to initiate proceedings by non-electronic means—that is, in paper form—but they are silent on allowing people the same facility at other stages, even though they recognise that regard must be had to those who will need support throughout all stages of the proceedings. That non sequitur is addressed by Amendment 5, which allows for further documents in all stages of proceedings to be submitted in paper form.

In Committee, noble Lords debated at great length the potential impact on access to justice for court users with limited digital means, digital literacy, or capacity to engage digitally. The Minister has accepted that some people find it difficult to engage with such digital procedure, but the Bill contains no general duty on the provision of such support, which Amendment 9A would provide. It is therefore a welcome amendment.

15:30

It is important to understand the effect of court modernisation on disadvantaged groups, not only when initiating proceedings but in their experiences of digital justice at all stages. I went back to the Government’s stated objectives; they include devising rules that will focus on users being able to solve grievances and resolve their issues online at the earliest opportunity, and that the online procedure will encourage more people to resolve disputes before they reach the hearing stage. This includes the online facilitation through mediation/conciliation with a streamlined resolution stage. However, if, during this mediation/conciliation phase, documents cannot be submitted or received by a litigant in paper form, those who are, for whatever reason, digitally disadvantaged, could be denied the benefits of early resolution or, even worse, feel they have to abandon their claims.

The desirability of Amendments 5 and 9A also needs to be seen in their wider context. The economic rationale for the Bill, which is persuasive—improving the cost and efficiency of our courts—cannot simply trump equity and fairness. It is important to ensure that online proceedings do not result in an accumulation of additional inhibiting obstacles placed in the way of access to justice. The Equality and Human Rights Commission, in its recent publications, raised real concerns about the impact of the narrowed scope of legal aid. It also released the report on its inquiry into legal aid for discrimination cases, which similarly describes the deleterious effect on access to justice for individuals who raise a complaint of discrimination in England and Wales. The findings paint a troubling picture, with difficulties in accessing face-to-face advice, barriers to accessing telephone services and a lack of funding for representation in the court. I appreciate that the Bill is not addressing the issue of legal aid. However, the implementation of online procedures in courts, which do not explicitly make provision for submitting or receiving documents in written form, nor place a duty on the Lord Chancellor to make support available to digitally disadvantaged people, have the potential to place additional inhibiting obstacles in the way of access to justice. The legitimate drive for greater efficiency in the court has to be balanced against the need for equity and fairness in accessing justice.

Finally, in support of Amendment 3, the word “technical” in government Amendment 1, when referring to the support to be provided to disadvantaged court users, implies that support is restricted to those who have no access to broadband, laptops or similar. However, the support is also needed for those who cannot digitally engage. This is a wider concept. Even if someone places a laptop in front of them, it does not mean that they can digitally engage. As the Constitution Committee describes,

“those with limited digital skills, for whom basic browsing and messaging may be within their capabilities but the complexity of online legal forms may not”.

[Lord Beecham (Lab)]

My Lords, I declare my interest, as in the register, as an unpaid consultant with my former legal firm.

It is unusual for me to extend congratulations to the Minister, with whom it is usually an enjoyable conflict of arms over the Dispatch Box, but he has made it very clear in his approach to the Bill that the Government are seeking to secure improvements to the legislation. He has tabled nearly half the amendments that we are discussing on Report, which is an unusually high proportion. That says a great deal for his interest in securing support for and improvement of the legislation, and for that he is to be highly commended. I welcome Amendments 1 and 18, and the acknowledgement of the need to have regard to those involved in the justice system who will require support to engage in an unfamiliar process.

Amendment 7, in my name, does not appear to have attracted a great deal of support around the House. It is designed to ensure that either party may choose whether proceedings will be online or offline rather than restricting the choice to the claimant, which is the present position under the Bill. It would allow the relevant judicial officeholder to decide which rules are to be followed where the parties are not in agreement. I am frankly puzzled by the criticism on this occasion from noble and learned Lords with a rather higher status in the legal profession than I ever aspired to or achieved. But since the Bill itself provides under Clause 3(1) that the Minister may,

“by regulations, provide for circumstances in which the person initiating proceedings, or an aspect of proceedings, may … choose”,

one side of the case can choose. However, there seems to be an objection to the other party being able to make a choice with the ultimate decision made, if necessary—if there is conflict on that—by a judicial officeholder.

I understand that the suggestion I have made would make both sides able to opt for a decision—I remind noble Lords that they cannot concur on the decision to be made—by an officer of the court. This is consistent with the European Convention on Human Rights and is strongly supported by the Law Society. I hope that it may be looked at again, in either this Chamber or another place. It seems only equitable for both sides, if any is to have a choice in proceedings, to give an indication and provide for a system where an independent party could, if necessary and by way of being a judicial officeholder, decide which rules would apply.

[Lord Keen of Elie]

My Lords, I thank all noble Lords for their contributions to this debate. I propose to address Amendment 5, which touches upon government Amendment 4, and then go on to look at manuscript Amendment 9A and thereafter Amendment 7. I will also touch upon the two technical amendments, as they were termed by the noble Lord, Lord Marks.

On Amendment 5, the use of the word “initiate” was intended to capture all engagement with online services throughout the proceedings, as I indicated on a previous occasion—in other words, “initiate” was taken as a synonym for “engagement”, not “commence”—but I appreciate the uncertainty that is in the minds of some noble Lords with regard to that matter. The noble Baroness, Lady Drake, made the point about comparing the terms of an earlier clause with this clause, where it refers only to “initiate”. I intend to look further at that matter before Third Reading so that we can arrive at a conclusion as to the appropriate wording, because I believe we are as one on the appropriate outcome on that point. In these circumstances, I hope that the noble Lord may see fit not to press his amendment at this stage so that we can proceed with Amendment 4 and address that point further in due course.

[Lord Beith]

I thank the Minister for that indication. I will not seek to move the amendment at this stage.

[Lord Keen of Elie]

I am most obliged to the noble Lord for that.

Perhaps I may turn to manuscript Amendment 9A, as distinct from Amendment 9, in the name of the noble Lord, Lord Marks. Again, I thank him for his extensive engagement with me and the Bill team over the last few days to address these matters. As I have sought to underline, we are committed to providing support to those people who cannot easily access online services. We share the observations made by the noble Lord, Lord Marks, and others about the importance of this issue. In these circumstances, we are prepared to accept manuscript Amendment 9A, as tabled by the noble Lord. However, it has an impact on the two other amendments that were tabled; first, in the use of the words “providing for”. If we accept manuscript Amendment 9A, it appears we are making explicit provision—indeed, we will have an explicit duty to provide—for these services. It therefore appears unnecessary to move that further amendment in these circumstances.

I have discussed the removal of the word “technical” with the noble Lord, Lord Marks. At this stage, I am not in a position to accept that amendment. Again, I would like an opportunity to discuss further what to do with the precise wording, in the light of our accepting manuscript Amendment 9A. It is in that context that I would like to resolve the matter, because we are concerned about the width of the obligation in those circumstances. I hope the noble Lord, Lord Marks, appreciates that and understands that, in accepting manuscript Amendment 9A, it is necessary for me to give further consideration to the two minor amendments he referred to. I understand where he is coming from and am content to address with him how we can ensure that the width of that provision is appropriate and sufficient as we go forward to Third Reading.

I am also content to commit on the Floor of the House that the Government will lay in Parliament a report on the provision of support, every two years. That report will be on the levels of assisted digital support being provided, and will give noble Lords the opportunity to request a debate on the topic and test the availability of support. Again, I had the opportunity to discuss that matter with the noble Lord, Lord Marks. I hope he accepts that that commitment meets the further concerns he had about the implementation of these provisions.

I turn to Amendment 7, in the name of the noble Lord, Lord Beecham. I am obliged to him for his remarks and observations. We do not feel able to accept the amendment. I notice the reference to Article 6 of the European Convention on Human Rights but, as the noble Lord is well aware—as is the Law Society, no doubt—there is an established common-law right of access to the courts and to a fair public hearing. More recently, that was included in Article 6 of the convention, which is part of our domestic law by virtue of the Human Rights Act. The effect is that these matters are already available and in train. We do not see that it is necessary to make explicit reference in the Bill to those established and fundamental rights. To make a specific reference to Article 6 of the convention without making reference to, for example, the common-law right of access to justice could simply sow the seeds of uncertainty or confusion.

The second part of Amendment 7 would remove, from the appropriate Minister, the power to determine the circumstances in which proceedings should not be governed by the Online Procedure Rules. It would instead leave the matter to be determined by a court or tribunal in cases where the parties to the proceedings disagree. We consider that not to be appropriate at present. The present balance, as indicated in Committee by the noble and learned Lord, Lord Thomas, is the appropriate way forward in these circumstances. I therefore invite the noble Lord to not move Amendment 7.

[Lord Marks of Henley-on-Thames]

My Lords, I will briefly address the Minister’s comments on my amendments. I had understood that Amendments 2 and 3 were accepted, but that discussion was before my Amendment 9A was drafted or accepted. I can see the point that having “providing for” in Amendment 1 may be rendered otiose by the acceptance of Amendment 9A. However, I will discuss it between now and Third Reading with the noble and learned Lord, as he suggests. However, I take the view that the word “technical” is important, for precisely the reason given by the noble Baroness, Lady Drake, so I will be urging that on him in our discussions.

I should also say, which I did not mention in opening, that the agreement to have a biennial review and have that report laid in the way the noble and learned Lord said is very welcome and, I suggest, important for ensuring that digitally excluded people are always receiving the assistance to which they are entitled. As I said, I intend not to move Amendment 9 and to move Amendment 9A when the time comes. I beg leave to withdraw Amendment 2.

Amendment 2 (as an amendment to Amendment 1) withdrawn.

Amendment 3 (as an amendment to Amendment 1) not moved.

Amendment 1 agreed.

Amendment 4

Moved by

[Lord Keen of Elie]

4: Clause 1, page 2, line 4, at end insert—
“(4A) The provision made under subsection (1)(a) must include provision for proceedings initiated at a court or tribunal by non-electronic means to be treated as initiated by electronic means, where the proceedings are processed by the court or tribunal by electronic means.”

Amendment 5 (as an amendment to Amendment 4) not moved.

Amendment 4 agreed.

15:45

Clause 2: “Specified kinds” of proceedings

Amendment 6

Moved by

[Lord Keen of Elie]

6: Clause 2, page 3, line 20, leave out “consultation” and insert “concurrence”

[Lord Keen of Elie]

My Lords, the amendments in this group deal with the issue of concurrence. Again, I thank noble Lords for their contributions on this topic at Second Reading and in Committee, and for their continued engagement on the matter outside the Chamber. We listened to the points made in these discussions and sought to address some of the concerns raised. I have tabled a range of amendments which I hope will provide suitable assurances for noble Lords. The amendments in this group deal specifically with the matter of concurrence in Clauses 2, 3 and 12. That is because I am now persuaded that the question of which proceedings fall under the auspices of the new Online Procedure Rule Committee should be a matter for agreement between the Lord Chancellor and the Lord Chief Justice. Therefore, these amendments make the necessary changes to Clauses 2, 3 and 12 to provide for this.

The amendment to Clause 12 also allows the Lord Chief Justice to delegate agreement to other members of the senior judiciary, which is purely a matter of practicality. I hope the amendments will be welcomed by noble Lords. They provide an important safeguard for the operation of the new committee. In particular, they address the concerns expressed by noble Lords at previous stages that the future expansion of the role of the committee should be subject to appropriate scrutiny and that in such matters the right relationship with the Lord Chief Justice and Senior President of Tribunals is one of concurrence. On reflection, this is a position which the Government now accept, and in these circumstances, I beg to move.

[Lord Judge]

My Lords, the Government have come a long way and I am now addressing not only the amendments put forward by the Government but Amendments 22 and 23. I begin by thanking the noble and learned Lord, Lord Keen, for kindly listening to what we had to say and for acting on it, and the Bill team for helping him get the wording right. It means that the Government have come a long way towards understanding the implications of the constitutional changes in 2005, which changed the relationship between the Lord Chancellor and the Lord Chief Justice and placed on the Lord Chief Justice responsibilities that once attached to the Lord Chancellor. The Lord Chief Justice now has personal responsibility for the arrangements by which litigation is conducted. To the extent that this relates to tribunals, the Senior President of Tribunals has the same responsibility. I welcome Amendment 12 and government Amendments 6, 8, 25, 26, 27 and 28, and shall welcome government Amendments 10 and 15 in the next group.

The difference between being consulted and requiring concurrence needs no emphasis. If you are consulted, what you say can be totally disregarded; concurrence means what it says. Despite all that I have said, I am sad to say that although the noble and learned Lord, Lord Keen, has taken his car a long way down the road of logic and constitutional sense, his vehicle has run out of fuel and failed to reach its logical conclusion.

The position can be summarised very briefly. Amendments 22 and 23 to Clauses 8 and 9, respectively, concern two clauses which, as drafted, give exceptionally wide powers to a Minister. Indeed, Clauses 8 and 9, I am afraid, are in the sadly standard form of donating, handing over or retaining power to the Executive which we now find in just about every Bill that comes before us.

The first six clauses, whatever other comments may be made about them, recognise that the government amendments in group three address the constitutional responsibilities. That is fine. Clause 7(3) gives the Minister an unconditional power to,

“allow or disallow Online Procedure Rules made by the Committee”,

provided that written reasons are given for doing so. In other words, he does not have to consult the Lord Chief Justice if he thinks that the rules put forward are not sensible or appropriate, or that they would cost too much money. That prevents the committee going off on a frolic of its own—or, indeed, putting forward rules with the concurrence of the Lord Chief Justice which, for example, involve unreasonable expenditure. That is very sensible. I do not cavil at the idea incorporated in Clause 7(3) and the individual responsibility of the Lord Chancellor in that regard.

However, taken together, Clauses 8 and 9 unbalance the relationship. The Lord Chief Justice falls out of Clause 8 altogether—he does not get a mention. He is reduced or left to the consultation process in Clause 9, which is entirely inconsistent with the provisions in the Bill that the Government amended to allow for concurrence rather than consultation. Under Clause 8, the Minister has power to direct that the rule committee shall include provisions to achieve the Minister’s purposes and that, when such a direction is given, the committee has no option but to comply within a reasonable time. It is that stark; the power is vested directly in the Minister.

It is one thing—and perfectly sensible—to protect the Lord Chancellor from some wild or absurd rule committee proposal. It is, with great respect, quite another for him to have an unconstrained power to give it directions: in effect, to tell it what to do. The Minister may, by Clause 9(2), also don the tarnished crown of King Henry VIII, who is not, of course, King Henry VIII to the noble and learned Lord, Lord Keen; I am not sure what he is to Scottish history—probably nothing. Would it not be wonderful to have a history in which Henry VIII counted for nothing? It would certainly be a convenience to this House if he did not count for very much.

So, if he wishes, the Minister may don this tarnished crown if he considers it necessary or desirable to facilitate the making of the rules. On closer examination, if you put these two clauses together, this arguably means that the Minister may overrule the very rules which were made with the concurrence of the Lord Chief Justice or his predecessor.

The Bill should be logical. The Lord Chief Justice’s concurrence to the exercise of these powers is elementary. The Bill and the government amendments now recognise it; the Minister has his safeguards in Clause 7(3); Amendments 22 and 23 make similar safeguards available to the Lord Chief Justice. I invite the Minister to refuel his car and keep right on to the end of the road.

[Lord Pannick]

My Lords, I declare my interest as a practising barrister. I too thank the noble and learned Lord, Lord Keen, for the important amendments which he has tabled, which will ensure that the concurrence of the Lord Chief Justice is required under Clauses 2 and 3. However, I have added my name to the amendments tabled by the noble and learned Lord, Lord Judge—in particular, Amendments 22 and 23—similarly to require the concurrence of the Lord Chief Justice for the exercise of the powers being conferred on the Minister under Clauses 8 and 9.

Clause 8 is an extraordinary clause. It would confer power on the Minister to require the committee to include a specified provision if the Minister thinks it is “expedient” to do so, and if the committee were to be so required, it would have a legal duty to comply. “Expedient” is the broadest possible word to define the scope of such a power. If Clause 8 is enacted as drafted, the requirement for the concurrence of the Lord Chief Justice under Clauses 2 and 3, which we all agree is necessary, would be rendered pointless. The Minister could simply override the views of the Lord Chief Justice in relation to any relevant matter under Clauses 2 and 3. I know that the noble and learned Lord, Lord Keen, does not share that view, and I look forward to him explaining why there is a limitation on what appears to be, and indeed is, the broadest possible drafting in the language of Clause 8. It contains no express limitation, and it seems very difficult to argue that there is an implied limitation that would prevent the Minister rendering pointless what is in Clauses 2 and 3 when the very purpose of Clause 8 is to give the broadest possible discretion to the Minister to give directions to the committee with which it must comply. Since the Minister has rightly accepted that, in the context of provisions about access to justice—which is what we are talking about—it is necessary for the provisions to require the concurrence of both the Minister and the Lord Chief Justice, there can nevertheless be no justification for conferring on the Minister by Clause 8 a power to override the views of the Lord Chief Justice on these important matters.

Clause 9 confers, as the noble and learned Lord, Lord Judge, said, a broad Henry VIII power on the Lord Chancellor to amend, repeal and revoke other legislative provisions whenever the Lord Chancellor considers it “necessary or desirable” in consequence of the Online Procedure Rules or to facilitate the making of Online Procedure Rules. Again, these are exceptionally broad powers, touching centrally on access to justice. For the same reasons that require the concurrence of the Lord Chief Justice for the exercise of powers under Clauses 2 and 3, it is necessary to require the concurrence of the Lord Chief Justice for the exercise of powers under Clause 9.

[Lord Beith]

My Lords, I do not know what answer the Minister will give to the pertinent question asked by the noble Lord, Lord Pannick, about the Clause 8 powers. The Lord Chief Justice might in some cases exercise the Clauses 2 and 3 powers to defy what the Lord Chancellor had asked the rule committee to do—which it had gone on to do at waste of time and expense and which he would not then agree to. However, that would apply to only some of the powers that the Minister would have in these circumstances; for example, extending into an area which the Lord Chief Justice did not think appropriate for the use of online procedure. But there are other things that the Lord Chancellor might direct the committee to do, such as shortening the notice period for various stages in the process or reducing in one way or another the rights of people engaged in the process, which could then be an obligation on the committee. If its members did not then resign, they would be required to produce rules which the Lord Chief Justice did not have a protective power to veto. The Clause 8 powers are worrying, and I do not recall at any stage in our amicable discussion any explanation why they are necessary and why, if any power is needed in this area, it cannot be much more narrowly defined.

One can make a similar point about Clause 9 in relation to Henry VIII powers, but it is a point that we have made so often that we risk becoming tired of making it. Thank goodness that the noble and learned Lord, Lord Judge, never ceases to make it in every circumstance in which it is appropriate.

16:00

I remain particularly worried about the absence of concurrence in relation to Clause 8. The concurrence issue turns on what was done when the position of Lord Chancellor was so radically changed. It is entirely appropriate that we should seek to police the line between the powers that the Lord Chief Justice now exercises over the management of the judiciary and the responsibility for issues such as resources and genuinely political questions, which rests with the Lord Chancellor. That is a very important line and we could stray over it from either point of view—by giving inappropriate powers to the Lord Chief Justice or unnecessary powers to the Lord Chancellor. Care is needed in this area. Here, retaining the purpose of all the amendments we made to those reforms to secure the independence of the judiciary calls for a fresh look at the Clause 8 powers.

I have a more technical point to put to the Minister, which is about the position of the Senior President of Tribunals. There are one or two places where he or she is specified as requiring concurrence but others where there is no reference. Is it the assumption that in all cases the Lord Chief Justice will—as I am sure they will—have proper regard to the position of the Senior President of Tribunals in relation to a tribunal matter, or have I failed to spot that in some instances that position is not relevant? He or she carries responsibility for the fair administration of justice in the tribunal sector and we may have to look to that sector to address any problems that arise if we have not got the definitions right.

[Lord Mackay of Clashfern (Con)]

My Lords, I took some part in previous discussions of these matters in relation to the powers of the Lord Chief Justice and the fact that he—or she, if it happens to be so—is now the head of the judiciary and the Lord Chancellor is not. I am inclined to remember—I may be wrong, and I hope that my noble and learned friend will correct me if I am—that a provision of exactly this type was made in relation to the other procedural committees that currently exist. It is a considerable time since that provision was made, and as far as I know, no trouble has emerged. That is because I would expect the Minister to exercise great care in this matter. I think I am right in saying that that was not altered in the Constitutional Reform Act, as it is called, which changed the responsibility of head of the judiciary.

I am therefore inclined to want to hear a bit more about this before we come to a decision. When so much agreement has been reached, it is a pity if we fall from agreement at the last minute, particularly if to do so would produce a very strange anomaly between the existing law relating to either of the other procedural committees and this rather more technical committee.

I do not think Clause 9 has to do with the procedure rules. It has to do with the possible obstruction to those rules which may exist in legislation already passed as part of our law. The Lord Chancellor is entitled to make regulations to amend the Acts of Parliament which interfere with the proposals being accepted as Online Procedure Rules. The rules may well have an impact on old statutory provisions—for example, those which have an impact on whether or not you can have online procedures—most of which, I imagine, did not envisage that. It may be that they can be interpreted to include considerations of that kind, but that is the nature of the problem in relation to Clause 9.

After thinking this through as best I can, I would not care for the Lord Chief Justice to have to be involved in the regulation-making aspect of this business. If regulations are required, they should be made by the person with the appropriate political responsibility. I therefore have doubts about the relevance of the rules in relation to Clause 9.

As to Clause 8, as far as I know, existing law was left unchanged by the Constitutional Reform Act. As to Clause 9, I wonder whether it is appropriate for the Lord Chief Justice to get himself involved in the nitty-gritty of political regulation.

[Lord Pannick]

The noble and learned Lord says that it is not appropriate for the Lord Chief Justice to be involved in Clause 9 matters—that he is not relevant to that—but the clause makes him involved. It gives him a role because he has to be consulted, so he is not irrelevant at all.

[Lord Mackay of Clashfern]

Exactly. He is doing exactly what I think is required. If the person who has the responsibility finds out that it is okay with the Lord Chief Justice—at least that is what I hope would happen—that person then goes on and does it. Therefore, consultation is probably the right balance at that stage. I am rather against the idea of involving the Lord Chief Justice in any form of political work. I thought the Constitutional Reform Act sought to achieve separation between the judiciary and the legislature, so that the acting judiciary were no longer part of the legislature.

[Lord Garnier (Con)]

My Lords, I do not want to spread dissension where none is required or even helpful, but I am persuaded by the first three noble—and noble and learned—Lords who have spoken in this debate. I am always persuaded by what my noble and learned friend Lord Mackay says, and we need clarification. Although I fully accept what my noble and learned friend has just said in relation to the political angle, there are provisions in Clause 9 which, although they refer to amending, revoking or repealing an Act, or a provision made under an Act, at heart deal with the mechanics of the procedure to be operated under the Online Procedure Rule.

We need to think more carefully before rushing into this. I take my noble and learned friend’s point about the possible inconsistency between this legislation, if it is to be amended, and earlier provisions. However, sometimes consistency runs in the wrong way. If the current amendment points out something that would then become inconsistent, it may be that the earlier provision also needs to be amended. In any event, I am utterly convinced that my noble and learned friend on the Front Bench will be able to persuade me that what the noble and learned Lord, Lord Judge, has said, supported as he is by the noble Lords, Lord Pannick and Lord Beith, will enable us to move forward in a spirit of complete concurrence.

[Lord Faulks (Con)]

My Lords, I repeat the declaration I made at Second Reading that I am a practising barrister. The balance of powers between the Executive and the Lord Chief Justice is a delicate matter, and I too will listen with care to what my noble and learned friend says about it. However, I wonder whether the powers are quite as wide as the noble Lord, Lord Pannick, says they are. Clause 8 admittedly gives a power to the appropriate Minister to do what they think is expedient for the Online Procedure Rules, and the committee must make Online Procedure Rules. But that throws the matter back to the committee to make the rules and, in doing so, once again the committee has to go through the procedure that itself involves getting the agreement of the Lord Chief Justice—so there is a safeguard at that level.

As far as Clause 9 is concerned, there is consultation in relation to the Lord Chief Justice, as my noble and learned friend Lord Mackay said, and the powers are limited to making such changes by getting rid of impediments and tidying up, as is necessary or desirable, as a consequence of Online Procedural Rules. I wonder whether we are not putting up a rather alarming prospect of a Minister, as it were, riding roughshod when in reality these are necessary provisions for the Executive to use—subject of course to the actual making of the relevant rules which do themselves provide safeguards.

I of course endorse what has already been said: if these additional amendments are incorporated into the Bill, it would make it more restrictive to make these rules in relation to online procedure than is the case under the current Civil Procedure Rules. That would be odd, although I take the point made by my noble and learned friend Lord Garnier that if there is something wrong with it, there is no reason simply to rely on precedent. None the less, this has not been criticised so far and I wonder whether we are wise to do it now.

[Lord Garnier]

My noble friend has reminded me that I should have declared an interest as a practising barrister, given that that may not always be clear.

[Lord Marks of Henley-on-Thames]

My Lords, the noble and learned Lord, Lord Garnier, has reminded me that perhaps I should make the same declaration—so I do so now.

We support Amendments 22 to 24, not only for the reasons given by my noble friend Lord Beith but for those given earlier in the debate, in particular by the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick. We regard it as very important that these rules should ensure a proper balance between the Lord Chancellor and the Lord Chief Justice: between the Executive and the legislature. I also take the two points made by the noble and learned Lord, Lord Mackay. First, there are of course equivalent provisions in the existing rules, but I agree entirely with the noble and learned Lord, Lord Garnier, who pointed out that that should not be treated as a precedent, and that if there is anything wrong with the earlier rules, perhaps they should be changed. If the 2005 Act overlooked those changes, perhaps it should not have done so, because that was the point at which the changes should have been made; that is, when the balance between the Lord Chancellor and the administration of justice changed.

I also suggest that what the noble and learned Lord, Lord Mackay, said was telling. He said that the difference between consultation and concurrence is that where you have consultation, the Lord Chancellor will go to the Lord Chief Justice and check that the change in the rules is okay with him—or that is what he hopes he would do—and then he would go back to make the rule. However, it seems to me that the need for concurrence in these rules is dependent on the Lord Chancellor finding out that the rules are okay with the Lord Chief Justice and the requirement for concurrence is to determine the position where they are not okay with the Lord Chief Justice, and that is why we have the concurrence requirement. I will give way to the noble and learned Lord.

[Lord Mackay of Clashfern]

We are talking about Clause 9, which is to do with regulations, not the making of the rules. It is the effect of existing law in relation to the rules that has to be dealt with.

16:15

[Lord Marks of Henley-on-Thames]

Again, I am not sure about that. I do not accept what I understand to be the Government’s argument against the amendments.

Clause 8 includes a rule-requiring power, and Clause 9 allows for the amendment or revocation of provisions made under an Act, which include the rules. Overall, it seems that Clauses 8 and 9 give the Government a rule-making or rule-requiring power. As I understand it, the Government’s argument is that Amendment 6 to Clause 2 and Amendment 8 to Clause 3 remove the need for a concurrence requirement in respect of Clauses 8 and 9; they also argue that, through those amendments, the concurrence requirement will govern the designation of proceedings of a specified kind and, similarly, will govern whether the Online Procedure Rules or conventional rules will govern proceedings which are of a specified kind. They go on to argue that, therefore, Clauses 8 and 9 will operate within that framework, and the concurrence requirement is therefore unnecessary in relation to the powers requiring rules to be made or requiring amendments to the rules. I disagree; I simply do not see the nexus.

Under Clauses 8 and 9, any number of rules—or changes or amendments to existing rules—might be made or required within the framework of the Online Procedure Rules. Such rules or amendments might well offend against the principles that the Lord Chief Justice would wish to impose on them. That could occur even in the context of existing designated specified proceedings. It follows that the concurrence requirement should be applicable to the rule-requiring, rule-amending or rule-repealing powers under Clauses 8 and 9—perhaps only as a safeguard and possibly in the hope that they will not be needed—and that the consultation preceding the concurrence requirement should be effective but, against the danger that it is not, I suggest that the amendments are required. We support them.

[Baroness Drake]

My Lords, I support Amendment 22 to Clause 8. I will steer clear of debate on Clause 9, being neither a judge nor a barrister or solicitor.

In Committee, deep concerns were expressed about the extent of the ministerial powers in the Bill, which could result in rules that set digital engagement and participation in online courts as compulsory conditions for access to justice in civil proceedings. In effect, the ministerial powers in the Bill have the potential to require people to choose between online proceedings or not pursuing legal claims. The Constitution Committee shared those concerns. The Minister sought to mitigate those concerns by giving assurances as to the Government’s intentions. In Committee, in response to my noble friend Lady Corston, the Minister commented:

“We intend to appoint a committee of experts to formulate these rules, including judicial members. They will have regard to the need for access to justice. Certainly, we have confidence in the ability of such a committee to formulate rules that reflect the need for all members of the community to have access, not only those who are perhaps more digitally alert and astute than the minority. We lay our confidence in the fact that there will be such a committee, that it will make regulations and that it will do it under the aegis of not only the Executive but the judiciary, and the Lord Chief Justice in particular”.


However, Clause 8 explicitly allows Ministers to both instruct and overrule that committee of experts.

On a further occasion, the Minister gave an assurance that,

“judicial discretion … ultimately, is paramount, and nothing in the Bill or that we would anticipate in the regulations to be made pursuant to the powers under the Bill would undermine that judicial discretion, which ultimately has be exercised in the interests of justice”.

However, as the noble and learned Lord, Lord Mackay, so acutely observed in Committee:

“It is not judicial discretion but rules that may require the parties to participate in the hearing by means of electronic devices. Therefore, it is not a question of the judge in charge of the case making that decision; the preliminary rules will require it, and the judge will be bound by that”.—[Official Report, 10/6/19; cols. 287-89.]


In summary, notwithstanding ministerial assurances, Clause 8 confers powers on Ministers to require specific provisions to be included in the Online Procedure Rules which the Online Procedure Rule Committee must comply with. Clause 8 also requires that the rules that the committee is required to make must be in accordance with Clause 7, but that clause gives the Minister explicit powers to disallow rules made by the Online Procedure Rule Committee of experts. Clause 8 gives Ministers considerable scope but fails to frame those powers in a way that ensures access to justice and does not give rise to the potential of a person having to choose between online court proceedings or not pursuing their case.

There are real concerns across the House about the potential of the powers given to Ministers in Clause 7, and I will not replay them here, but the case for Amendment 22, which introduces a degree of control over the exercise of those powers by requiring the Minister to secure the concurrence of the Lord Chief Justice, who is the head of the judiciary and is ultimately responsible for the delivery of justice, is, I believe, compelling.

[Lord Beecham]

My Lords, I welcome the Minister’s acceptance of the need for the Lord Chief Justice to concur with the creation of rules rather than merely to be consulted. However, Amendments 16 and 19 look to enhance parliamentary scrutiny by requiring the affirmative process. The increasing reliance on the negative procedure has already roused concern in your Lordships’ House, and many Members are further concerned about its application to this sensitive area. The Law Society strongly endorses the amendments prescribing the affirmative procedure on the basis that it would secure further parliamentary scrutiny of the regulations.

Amendments 20 and 21, which are in my name, would empower the committee to decline a government request—in effect, an instruction—to create certain rules, which is really the issue that my noble friend Lady Drake has just referred to. If there is to be a really meaningful role for that committee, to my mind we need an amendment along the lines of Amendments 20 and 21.

Finally, we will certainly support the noble and learned Lord, Lord Judge, if he seeks to take the opinion of the House on the two amendments in his name.

[Lord Keen of Elie]

My Lords, I begin with two general observations. First, I am not conscious of having run out of fuel, but I leave that to others to judge. Secondly, it occurs to me that the Henrician view of executive power does not differ in any practical respect from the Stuart view of the divine right of kings.

Perhaps I should begin by making this point. Under the structure of the Bill, it will be necessary, pursuant to Clauses 2 and 3, to identify proceedings of a specified kind that may be subject to the Online Procedure Rules. In the light of the Government’s amendments, that can be done only with the concurrence of the Lord Chief Justice, as indicated, and subject to the affirmative procedure.

It is not open to the Online Procedure Rule Committee to make Online Procedure Rules in respect of procedures that are not of a specified kind—that would simply be ultra vires. There is scope the other way, for the Online Procedure Rule Committee to provide that certain proceedings that are of a specified kind are not to be governed by the rules; that is pursuant to Clause 1(6). So the point I seek to emphasise at the outset is that the definition of specified procedures—the specified kind of procedures—sets out the framework within which the Online Procedure Rule Committee can operate. If the Minister were at any time to direct the Online Procedure Rule Committee, pursuant to Clause 8, to make rules in respect of proceedings that were not of a specified kind, that would be ultra vires; that is quite clear. He can direct them to make rules only in respect of proceedings of a specified kind pursuant to Clauses 2 and 3.

It is not possible to utilise the Clause 8 power in order to run roughshod over the provisions in Clauses 2 and 3, which clearly set out the need for the Lord Chief Justice to give concurrence to the proceedings that will be subject to the rules. Perhaps I am stating the obvious, but it occurred to me that one or two observations made in the course of this debate were inclined to suggest otherwise. I do not accept that. One has to look at the entire structure of the Bill and have proper regard to the way in which Clauses 2 and 3 will operate in that respect.

[Lord Pannick]

I am grateful to the Minister for giving way. It may be obvious to him, but not necessarily to others, that there is this implied limitation in what appears a very broad power being conferred on Clause 8. I suggest to him that a possible way forward would be for him to introduce at Third Reading an amendment to Clause 8 that makes it clear in the Bill that it has the limitation that he tells the House it has.

[Lord Keen of Elie]

With great respect to the noble Lord, I do not consider that I am dealing with an implied limitation. If one construes the Bill as a whole, one begins with Clauses 2 and 3, which set out the framework within which the Online Procedure Rule Committee will be able to operate. That framework is subject to the concurrence of the Lord Chief Justice; that is quite clear. To read Clause 8 as though it stands entirely alone and independently of the rest of the Bill is not, I submit, at all appropriate. The circumstances in which Clause 8 directions may be given clearly apply to the rule-making power of the committee. The committee has no rule-making power except in respect of proceedings of a specified kind as provided for by Clauses 2 and 3. I do not suggest that an implication is necessary there; it is simply a matter of statutory construction. I hear what the noble Lord says and will give further consideration to the point he makes in light of it, but that is my position at present.

[Lord Marks of Henley-on-Thames]

Accepting what the Minister says about the framework, there is nothing in Clause 8 as I read it—he will no doubt correct me if I am wrong—that prevents the Lord Chancellor giving a Clause 8 direction in the context of rules already within specified proceedings, where the rules required to be made by the Lord Chancellor’s direction are offensive to the Lord Chief Justice.

[Lord Keen of Elie]

If they were offensive to the Lord Chief Justice, that would emerge in the course of consultation. I am glad that the noble Lord accepts my point about the proper construction of the statutory provisions as between Clauses 2 and 3 and Clause 8. What he is concerned about is an entirely distinct issue: that the Minister gives a direction for the making of rules in respect of proceedings of a specified kind, pursuant to Clauses 2 and 3, which the Lord Chief Justice might not like. If he does not like it, he can express that view during the consultation. If he is deeply disturbed by what is proposed, he can have recourse to Section 5(2) of the Constitutional Reform Act 2005 to make a report to Parliament, but that will not arise. One has to see these powers in their proper context.

I would add that, in the course of looking at the proposed amendments to the Bill, we have engaged with the Judicial Office to try to ensure that the Bill reflects constitutional arrangements consistent with those of the existing civil committees. That is precisely what Clauses 8 and 9 do and I am not aware of any objection from that source to the way in which those committees already operate, and in which it is intended that this committee should operate in respect of the same matter. I will come on to explain why, constitutionally as well as with reference to precedent, we consider that appropriate. I underline the point that the existing proposal in Clause 8 in no way takes away from or abrogates the provisions in Clauses 2 and 3, which establish quite clearly those proceedings, and only those proceedings, in respect of which the committee itself can make rules. It cannot make rules for something else entirely.

16:30

As I mentioned, that reflects a long-standing arrangement with the existing civil rule committees that has operated for many years. It is consistent with the notion that where, for example, the Executive have a policy about particular matters that is approved by Parliament and they wish to direct that rules should be made pursuant to it, that should of course be subject to consultation with the Lord Chief Justice but should not be subject to any form of veto from the Lord Chief Justice as that would not be appropriate. Indeed, it would be to draw the Lord Chief Justice into the political arena in circumstances where I am sure he would not wish that to happen. That is why we have the existing provisions relating to this matter in the existing civil rules, and why we seek to reflect that. My understanding is that this arrangement reflects the agreement between the Lord Chancellor and the Lord Chief Justice under the 2004 concordat given effect to under the Constitutional Reform Act 2005.

The effect of this amendment, if implemented, would be to change the relationship between Ministers and the judiciary—an arrangement that appears to have worked well for the last 20 years. Indeed, I would add that the powers we are dealing with are rarely, if ever, used. As I understand it, the Civil Procedure Rule Committee provision has been used only once in the past 20 years. However, as I indicated, it reflects an important constitutional balance, which is why we consider it appropriate that we should have Clause 8 in its present form. It is a matter of precedent and of constitutional propriety, and it is appropriate because it does not take away in any sense from the protections provided for in Clauses 2 and 3.

Amendments 23 and 24 deal with Clause 9, seeking to add a concurrent requirement before the Minister can amend legislation in consequence of or to facilitate the making of online rules. Again, this power as currently expressed in Clause 9 expresses very similar provisions governing the civil, family and tribunal procedure rules. It allows the Lord Chancellor to make consequential amendments to other legislation, or to amend other legislation, to facilitate the making of Online Procedure Rules. Its intended use is primarily to correct minor issues in legislation—for example, to update references to things in legislation to match and be consistent with references to those matters in the online rules. That power in the equivalent Civil Procedure Rules has, I understand, been used on only seven occasions over the past 20 years, the last time about 14 years ago. Various examples can be given of where it has been necessary to make such regulations to correct inconsistencies in primary legislation, but I have no hesitation in saying for the purposes of Hansard that it is employed for that purpose and that it is intended under the Bill for such a purpose. I hope that helps to clarify why Clauses 8 and 9 are expressed in their present form.

I will touch on a point raised by the noble Lord, Lord Beith, regarding the reference to the Senior President of Tribunals. It is because there is a division of responsibility between the senior president, in respect of matters concerning tribunals, and the Lord Chief Justice, in respect of matters regarding the courts. There is a similar division between the Lord Chancellor and the Secretary of State for BEIS, who has responsibility for employment tribunals. The Bill is intended to reflect those divisions of responsibility and not to amalgamate this. In these circumstances, I invite noble Lords to reconsider and not to move Amendments 22, 23 and 24 at this stage, as not required.

I will touch on Amendments 16 and 19, tabled by the noble Lord, Lord Beecham, which require that regulations made under Clause 6 be subject to the affirmative rather than the negative procedure. This clause is where the Minister may make changes to the composition of the rule committee. As I explained, we envisage that the new committee will be agile, focused and flexible in how it conducts its business. Over time, as the scope of the online procedure widens, the Lord Chancellor may wish to make changes to both the number and expertise of committee members.

We consider that moving this to the affirmative procedure would hamper the committee’s ability to adapt quickly and effectively to new developments. If the committee was asked to draft rules in a new area, following consultation with the Lord Chief Justice, it may decide that additional expertise is needed on the committee. These amendments would mean that a debate in both Houses of Parliament would be needed before any such appointment could take place. We consider that that would be an inappropriate use of parliamentary time and would certainly reduce the efficiency of the committee, which is counter to one of the underlying purposes of the Bill. With respect, it appears to us that the negative resolution procedure strikes the right balance between the extent of parliamentary scrutiny and ensuring that the Lord Chancellor will be able to implement the rules effectively and efficiently.

Amendment 19, tabled by the noble Lord, Lord Beecham, changes the negative procedure to the affirmative for the making of rules of court. We certainly do not consider that appropriate; it is not the position for the other civil rules committees. It would place a burden on the committees and on Parliament if the procedure was slowed down by such a measure. The existing committees often make rules at least twice a year and the cumulative impact on parliamentary time of a move towards affirmative debates on statutory instruments of this kind would be entirely disproportionate. In these circumstances, I invite the noble Lord not to move Amendments 16 and 19.

Amendments 20 and 21, tabled by the noble Lord, Lord Beecham, seek to remove the requirement for the Online Procedure Rule Committee to make rules at the direction of the Lord Chancellor and the requirement that the committee make such rules within a reasonable period. As I sought to underline in my response to Amendment 22, there are very strong arguments for retaining a power of direction consistent with the other civil rule committees. I will not repeat those here, but it appears that the amendment proposed by the noble Lord would also diminish the effectiveness of the committee and would be inappropriate in the circumstances. Therefore, I also invite him not to move Amendment 20. I beg to move Amendment 6.

Amendment 6 agreed.

Clause 3: Provision supplementing section 1

Amendment 7 not moved.

Amendment 8

Moved by

[Lord Keen of Elie]

8: Clause 3, page 4, line 3, leave out “consultation” and insert “concurrence”

Amendment 8 agreed.

Amendment 9 not moved.

Amendment 9A

Moved by

[Lord Marks of Henley-on-Thames]

9A: After Clause 3, insert the following new Clause—
“Duty to make support available for digitally excluded people
The Lord Chancellor must arrange for the provision of such support as the Lord Chancellor considers to be appropriate and proportionate, for the purpose of assisting persons to initiate, conduct, progress or participate in proceedings by electronic means, in accordance with Online Procedure Rules.”

Amendment 9A agreed.

Clause 4: The Online Procedure Rule Committee

Amendment 10

Moved by

[Lord Keen of Elie]

10: Clause 4, page 4, line 11, leave out “one person who is either” and insert “two persons, each of whom is either”

[Lord Keen of Elie]

My Lords, this group of amendments, beginning with Amendment 10, concerns the composition of the committee. I will therefore address Amendments 10, 15 and 17. The purpose of the amendments is fourfold: first, to increase the number of judicial members of the Online Procedure Rule Committee; secondly, to enable the Lord Chief Justice to appoint one judicial member as chair of the committee; thirdly, to provide that, when making rules, the majority of the committee must sign the rules, rather than the current requirement that they be signed by three members; and fourthly, to ensure that, where the committee is tied on the making of one or more rules, the chair’s signature will act as a casting vote.

These amendments, alongside our proposed amendment on concurrence in Clause 2, seek to ensure sufficient safeguards in the Bill to balance the role of Ministers on the one hand and the judiciary on the other in the making of online rules. The amendments aim to achieve a balance of nominees of the Lord Chief Justice and of the Lord Chancellor, such that each would have three nominees to the committee. In addition, one of these judicial nominees will now be designated by the Lord Chief Justice as the chair of the committee and will have the casting vote should the committee be tied on the making of any rule.

On the issue of committee members signing rules, the previous iteration of the Bill simply stated “three” as that would have been a majority of the five committee members. However, having considered the observations of noble Lords, and having made a small change to ensure that in future the committee increases in size, a simple majority of members will always be required to make rules. In this instance, where there are six members, should the committee be tied, the chair, as I said, would have the deciding vote. The consequence would be that the judicially appointed members of the committee would in such circumstances always have the majority on the committee. It is in these circumstances that I commend Amendments 10, 15 and 17 to your noble Lordships.

[Lord Beecham]

My Lords, I rise to speak to the amendments in my name, Amendments 11, 12, 13 and 14.

Amendment 11 seeks to enlarge the Online Procedure Rule Committee to include members covering the legal profession and the magistracy, all of whom should be familiar with the difficulties experienced by people unused to the digital process. Importantly, Amendments 12 and 13 amend the provision of Clause 4(2)(d), under which two persons are added to the list of the committee members, one of whom must have experience in the advice sector, and the other two of whom must have IT experience and knowledge of end-users’ experience of internet portals. The amendment would add a third member with experience in representing the views of people who are digitally excluded. We regard this as imperative, not least in the light of the appalling experience of universal credit, which the organisation Mind cites as an example of “digital by default”, whereby 25% of people with long-term health conditions could not make claims online. Mind also cites a case, LH Bishop Electrical Co Ltd v Commissioners for Her Majesty’s Revenue and Customs, in which the First-tier Tribunal ruled that requirements to file VAT returns online discriminated against disabled people, older people and people living too remotely for digital access.

Mind, while supporting increasing the choice for core users and making the system easier to navigate, rightly avers that it is essential to make sure that there are safeguards to ensure that people who are digitally excluded are not locked out of the justice system. It goes on to suggest that the Online Procedure Rule Committee’s powers should be limited so that it cannot require that proceedings be initiated online without providing an alternative that is clearly advertised and provides for each stage of the proceedings. This reinforces the case with an approach that does not leave the decision as to whether proceedings should be online with one party. This is consistent with the view expressed in Lord Briggs’s report, which sought to include non-lawyers with the requisite skills. These amendments are supported by the Law Society.

Finally, Amendment 14 seeks to promote and ensure gender balance in the membership of the committee and invites further work by the Government to achieve that.

16:45

[Lord Keen of Elie]

My Lords, regarding Amendments 11 and 12, let me restate the point I sought to outline in Committee. In his final review of the civil justice system in 2016, Lord Briggs—or Lord Justice Briggs as he then was—anticipated a committee of experts from across various disciplines that would reflect the needs of users. Amendments 11 and 12 seek to increase the size of the committee to include respectively four more legal members and one additional other member. Combined with Amendment 13, which has the effect of adding a further member who must have experience of representing the views of people who are digitally excluded, this would add four members to the committee.

We have been clear all along that we want an Online Procedure Rule Committee that is small and agile. This will mean that it has the flexibility to make and adapt rules quickly to meet circumstances that might change rapidly. As Clause 7 makes clear, before making or amending rules the committee must consult such persons as they consider appropriate. The committee will therefore be able to benefit from the contributions of people with expertise relevant to specific matters, rules and proceedings as referred to by the noble Lord, Lord Beecham. This would include people with specific legal experience in a particular area, such as that of the disabled.

One consequence of adopting these amendments would be creating not only a much larger committee, but a much greater imbalance in the number of members appointed by the Lord Chancellor in comparison to the number appointed by the Lord Chief Justice. It would therefore defeat the very purpose of the amendments we have sought to move. At present, we have a committee of six on which there are three judicial appointees made by the Lord Chief Justice, one of whom is the chair. In the event of a rule being signed off by a majority, with three judicial appointees wishing to sign off the rule, the chair would have what is in effect a casting vote. These amendments would therefore take away entirely from the very force of the amendments the Government are moving.

Amendment 13 would add a member of the rule committee capable of representing the views of people who are digitally excluded. As I have already sought to explain, we consider that there are significant advantages in a small committee. Where it requires expert input, it has the power to seek that. Since we have brought forward amendments to ensure that all members of the committee always consider the needs of those who struggle to engage digitally—the amendments we dealt with earlier—and while I fully agree that digital support for those who want to access online services is absolutely paramount to the effectiveness of this system, we do not consider it necessary to achieve those objectives to have this addition to the committee. It is also important to remember that Clause 6 provides a power to vary the membership of the committee as and when required.

Finally, on Amendment 14 and the matter of gender balance, as I sought to emphasise in Committee, the Government of course support the wider aim of ensuring diversity among senior appointees to public bodies. When appointing members to the committee, the Lord Chancellor and the Lord Chief Justice are already bound by guidelines and statute relating to matters of diversity. Appointments to various procedure rule committees are governed by the Governance Code on Public Appointments, which sets out the principles that underpin public appointments, including openness, ministerial responsibility and integrity. It also includes a commitment to diversity:

“Public appointments should reflect the diversity of the society in which we live, and appointments should be made taking account of the need to appoint boards which include a balance of skills and backgrounds”.


Additionally, public appointments are regulated by the Commissioner for Public Appointments. He or she, in turn, may make audits of departments to see that they are complying with the principles.

Furthermore, Ministers are subject to the public sector equality duty set out in the Equality Act 2010. We therefore consider the matter of diversity to be well dealt with. It does not have to be brought within the four walls of this Bill; it is already addressed in statute and by other means. Also, as I have mentioned before, applying this specific statutory duty to this committee would differentiate it from the other civil committees—the Tribunal Procedure Committee, the Family Procedure Committee and the Civil Procedure Committee—and there is no compelling reason to do so. In these circumstances, I invite the noble Lord to withdraw the amendments.

[Lord Marks of Henley-on-Thames]

Can the Minister clarify a point he made in relation to Amendments 11 to 13? Having regard to the amendments which have already been accepted, the balance of the committee at the moment is three judicial appointments and three appointed by the Lord Chancellor, with the Lord Chief Justice having the power to appoint the chairman from the judicial appointments, and that chairman having a casting vote. The Minister commented on the effect of the proposed Amendments 11 to 13 on that balance. Is that right?

[Lord Keen of Elie]

The noble Lord is entirely correct in his summary of the position if we apply the government amendments that have been moved. The result is that, in light of the government amendments, we will have a committee constituted as he indicated. That balance would be removed by the amendments proposed by the noble Lord, Lord Beecham.

Amendment 10 agreed.

Amendment 11 not moved.

Amendment 12

Moved by

[Lord Beecham]

12: Clause 4, page 4, line 21, leave out “two” and insert “three”

[Lord Beecham]

My Lords, I wish to test the opinion of the House.

16:52

Division 1

Ayes: 132

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Labour: 109
Crossbench: 14
Independent: 6

Noes: 219

---

Conservative: 173
Crossbench: 42
Democratic Unionist Party: 2
Ulster Unionist Party: 1
Independent: 1

17:06

Amendments 13 and 14 not moved.

Amendment 15

Moved by

[Lord Keen of Elie]

15: Clause 4, page 4, line 43, at end insert—
“(6A) The Lord Chief Justice may appoint one of the persons appointed under subsection (2)(a) or (b) to be the chair of the Online Procedure Rule Committee.”

Amendment 15 agreed.

Clause 6: Power to change certain requirements relating to the Committee

Amendment 16 not moved.

Clause 7: Making Online Procedure Rules

Amendment 17

Moved by

[Lord Keen of Elie]

17: Clause 7, page 7, line 32, leave out “at least three members of the Committee, and” and insert “—
(i) at least half of the members of the Committee, where one of the signatories is the chair, or(ii) a majority of the members of the Committee, in any other case, and”

Amendment 17 agreed.

Amendment 18

Moved by

[Lord Keen of Elie]

18: Clause 7, page 7, line 35, at end insert—
“(3A) In deciding whether to allow or disallow rules, the appropriate Minister must have regard to the needs of those who require technical support in order to initiate, conduct, progress or participate in proceedings by electronic means.”

Amendment 18 agreed.

Amendment 19 not moved.

Clause 8: Power to require rules to be made

Amendments 20 and 21 not moved.

Amendment 22

Moved by

[Lord Judge]

22: Clause 8, page 8, line 13, at end insert—
“( ) The appropriate Minister may only give written notice under this section with the concurrence of the Lord Chief Justice.”

[Lord Judge]

My Lords, I understand the difficulty raised in our earlier debate by the noble and learned Lord, Lord Mackay: that other committees work on a different basis. However, all those committees were created before the constitutional change. What is more, the committee we are envisaging in the Bill will actually have power to decide how the other committees will operate—at any rate, in relation to the digital world. That makes it different, but the fact is that we have had a change to the constitution and the Bill should recognise it.

I have looked at Clause 8 and I would love a debate with the noble and learned Lord, Lord Keen, about what,

“achieve a purpose specified in the notice”,

might mean, and about the provision that the committee must do what is,

“necessary to achieve the specified purpose”.

It would be a wonderful debate. The difference between us is that he says that means the same thing as what it says in Clause 2. However, that is not what it says in Clause 2. Clause 2 relates to “specified kinds”, which is a completely different consideration. What in the end we have here is the ability under Clauses 8 and 9, taken together, of the Executive to decide how litigation shall be conducted. That is what is objectionable about it and I seek the views of the House.

17:09

Division 2

Ayes: 226

---

Labour: 108
Liberal Democrat: 68
Crossbench: 41
Independent: 6
Green Party: 1

Noes: 182

---

Conservative: 169
Crossbench: 7
Independent: 3
Democratic Unionist Party: 2
Ulster Unionist Party: 1

17:25

Clause 9: Power to make amendments in relation to Online Procedure Rules

Amendment 23

Moved by

[Lord Judge]

23: Clause 9, page 8, line 25, at end insert—
“( ) Regulations may only be made under this section with the concurrence of the Lord Chief Justice.”

[Lord Judge]

I am afraid I must ask for the opinion of the House on this amendment as well.

Division to Amendment 23 called. Tellers for the Not-Contents were not appointed, so the Division could not proceed.

Amendment 23 agreed.

Amendment 24

Moved by

[Lord Judge]

24: Clause 9, page 8, line 26, leave out “the Lord Chief Justice and

[Lord Keen of Elie]

Amendment 24 is consequential on Amendment 23 and therefore we accept it.

Amendment 24 agreed.

Clause 12: Regulations

Amendments 25 to 28

Moved by

[Lord Keen of Elie]

25: Clause 12, page 9, line 12, leave out “consultation” and insert “concurrence”

26: Clause 12, page 9, line 14, leave out “consult” and insert “obtain the concurrence of”

27: Clause 12, page 9, line 18, leave out “consult” and insert “obtain the concurrence of”

28: Clause 12, page 9, line 23, at end insert—
“(3A) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise any function of the Lord Chief Justice under this section.”

Amendments 25 to 28 agreed.