Courts and Tribunals (Online Procedure) Bill [HL]

Lord Beith Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

The noble Lord, Lord Ponsonby, has explained that his Amendment 6 would retain judicial discretion as to whether a conventional court hearing was necessary in individual cases. The amendment from the noble Lord, Lord Beecham, would go further and permit the court discretion in cases of disagreement between the parties to decide which set of rules should govern the proceedings. I support the principle that, where the parties are not in agreement, the court should decide. Where parties agree, though, I suggest that as a matter of principle their agreement should be honoured. That is particularly important on the necessity for a hearing because I take the clear view, as human rights lawyers always have, that the right to a hearing in cases of serious disputes, even affecting small sums of money, should be unfettered.

[Lord Beith (LD)]

My Lords, I can easily follow my noble friend because he has said much of what needs to be said. With Amendment 4, I am trying to explore what the circumstances are in which it would be possible for people to revert to the traditional procedure rather than the online one. I am in favour of the Bill being introduced—I have called for it on many occasions and strongly support it—but the Constitution Committee has pointed out that it raises some issues that need to be clarified and sorted out, and this is one of them.

What are we trying to do here? Are we trying to create an online system that is advantageous, beneficial to the parties and much less cumbersome as well as saving time for the judicial system? Are we then going to encourage people to make use of it in the expectation that they will? The piloting of more limited projects in this area indicates that we have good reason to be optimistic. So is that what we are doing, or are we setting up a system in which it will be almost impossible to insist on conventional court proceedings even in circumstances where both parties think that is right? The question then arises whether you could have circumstances where one party to a dispute could insist, even when it was to the detriment of the other, that the more cumbersome procedure was used. I would be interested in the Minister’s comments on that question. Where both parties are quite clear that there are good reasons for a hearing in court, why should they be precluded from having one if our assumption is that this is a system that would be attractive to users and make the court system function more effectively, particularly in large numbers of money claims of relatively modest size?

One of the ambiguities that surrounds this Bill is what it is really for—whether it is the route to a very wide use of online systems or whether it will be confined in this way. Different statements at different stages of the Bill’s progress have had both a narrow and a wide interpretation. Although Briggs referred to money claims, I think there are wider expectations that make these general issues rather important.

[Lord Pannick (CB)]

My Lords, I support what has been said by the noble Lords, Lord Marks and Lord Beith. I declare an interest as a barrister practising in offline courts. That was the reason I did not participate at Second Reading.

The Briggs report has been referred to, which said at paragraph 6.13 that there are persons,

“living mainly in rural areas with no access to broadband, those who cannot afford a lap-top or desk-top computer, and those who for a variety of understandable reasons regard moving to computer after a life spent communicating on paper a step too far”.

I agree with previous speakers that it is unacceptable that the Bill says nothing about such potential litigants. The Minister accepts that their interests must be accommodated—they need to be accommodated in the Bill.

That is the view of your Lordships’ Constitution Committee, on which I served with the noble Lord, Lord Beith, and the noble and learned Lord, Lord Judge. Our report said at paragraph 16 that, against the background of what was said by Briggs,

“forcing people to choose between online proceedings or not pursuing legal claims at all risks excluding large numbers of people from the justice system”.

For that reason, your Lordships’ Constitution Committee has recommended that the Bill must place duties on the Lord Chancellor to ensure that adequate provision is made to enable access for the sorts of people I have mentioned.

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[Lord Thomas of Cwmgiedd]

I accept that, but I think it is part of the terminology used. That is why, in the intervention I made earlier, I said that it is important to appreciate the difference between a simplified procedure and the way the court works. Unfortunately, despite everything the noble and learned Lord, Lord Woolf, did to try to simplify civil procedure, the White Book has grown from 2,000 to 3,000 pages.

We need to go back. It is an unfortunate tendency of lawyers to ossify everything. This is an attempt, using electronic means, to make access to justice easier and to simplify it, but we plainly need safeguards. I am sure the best safeguard of all is the concurrence of the Lord Chief Justice, which I am sure would solve most of these problems yet allow access to justice to use 21st-century methods to make it cheaper and—if I may, with some trepidation, say so in this House—to conduct litigation without the need to deploy expensive lawyers.

[Lord Beith]

My Lords, the weakness in this part of the Bill seems to be that there are no limitations on or barriers to the total extension of the online procedure to all civil, family and tribunal proceedings. Nobody is actually suggesting that, but the absence of any barriers means that we can stray into that territory before there has even been a serious debate about how we could use online procedures in some of these areas. It is fairly obvious for small money claims and promising in a number of other areas, but the Bill is so wide that its lack of any specified criteria or other limitations is worrying.

[Lord Keen of Elie]

My Lords, I begin by responding to the observations made by the noble Lord, Lord Beith, and the noble and learned Lord, Lord Thomas of Cwmgiedd. This is a piece of enabling legislation—a very welcome one, I suggest—it is not a case of us bringing in powers without limits or regulation. It will establish an expert committee, including judicial representatives, legal representatives and others, that will be able to call upon the expertise of others in particular areas as and when it comes to address them. I will come on to that in a moment in the context of family law. It will operate under the umbrella of not only the Lord Chancellor—or, in the case of employment tribunals, the Secretary of State for BEIS—but the Lord Chief Justice. It does not give free rein to some individual in the Executive to determine how court cases will be determined, but I emphasised that it is concerned only with civil procedure. As the noble Lord, Lord Beecham, acknowledged, the reference in his amendment to criminal procedure is otiose and unnecessary.

Over and above that, I seek to anticipate something that will arise repeatedly in the debate—the position of the Lord Chief Justice regarding the operation of this matter overall, a point we touched on at Second Reading. I am conscious of the desire in some quarters that certain of the Bill’s provisions should provide not simply for consultation with the Lord Chief Justice, which, let us be clear, is a formidable requirement: if you consult with the Lord Chief Justice you consult with him, and if you do so you do not ignore his advice or opinion. Indeed, if you did, it would be open to him to make a report to Parliament under Section 5 of the Constitutional Reform Act 2005, which I think one of my officials referred to as the nuclear option. It is not one that anybody would want to encourage.

I am conscious of the suggestion that, in some areas, we should move from the idea of consultation with the Lord Chief Justice to one of concurrence. That, in a way, touches on many of the issues that arise in the Bill. I can go no further at this stage than say that I have that under active consideration and would anticipate returning to the point on Report. I do not give any unequivocal undertaking, but I indicate that I appreciate how and why certain aspects of the Bill, if moved from consultation to concurrence, would meet some of the concerns, particularly those expressed by the Constitution Committee, regarding this matter. I make that general observation at this stage, because it is a point that we may well return to with regard to certain further amendments.

As I set out at Second Reading, the intention is, as far as possible, to make online procedure the preferred procedure for the commencement and defending of cases that fall within its remit. Of course, our ambition is to develop services that are easier to access and to use, so that over time, digital channels become the default choice for at least the majority of users. I emphasise “majority of users”, for the reasons which we have already touched upon.

As we have set out, our initial intention is that this procedure would consider civil money claims up to a value of £25,000 before widening its remit to cover other proceedings, so it is a question of taking it step by step to see how these procedures will work. It is not our intention that the OPRC would start to remake rules across other jurisdictions immediately. We want to complement and build upon the work of the existing committees in this area, to see whether this incremental approach to the extension of the OPRC’s remit can be successful. But no proceedings will be brought into the Online Procedure Rules without the views of the judiciary, of the committee and, in particular, of the Lord Chief Justice being taken into account—whether by consultation or by way of his concurrence.

Amendment 2, moved by the noble Lord, Lord Ponsonby, appears to be intended to transfer the regulation-making power set out in the Bill from the Lord Chancellor to the existing procedure rules committees—or at least make it subject to that. In effect, it would be for those existing rules committees to decide when proceedings may be subject to the Online Procedure Rules. We consider that this would pose a number of serious practical difficulties.

First, it would place the legislation required to bring proceedings under the remit of the Online Procedure Rule Committee on an entirely different footing from that for the existing rules committees for civil, criminal and tribunal. It would be on the basis of a negative resolution statutory instrument developed by an independent rules committee, as opposed to an affirmative instrument laid by the Government, and that, in itself, would not allow for the appropriate degree of parliamentary scrutiny which should be applied here.

The second difficulty is, I am sure, entirely unintentional. Under the existing civil procedure rules committees, there is a means by which—for example, with regard to employment tribunals and employment appeal tribunals—the Secretary of State in the case of the employment tribunal or the Lord Chancellor in the case of the employment appeal tribunal, can direct the making of regulations or rule-making powers. I do not believe that that would be a consequence one would seek in the present context.

Thirdly, the three existing rules committees cover three entirely independent jurisdictions, and it is unclear how they might decide among themselves which proceedings should be extended to the Online Procedure Rule Committee and which should not. We anticipate that in itself creating very real practical difficulties over the administration of the future Online Procedure Rule Committee. This is why we do not consider that this amendment would have an acceptable outcome.

The noble Lord, Lord Beecham, touched on housing. At present there is no intention to proceed with the simplified Online Procedure Rules in respect of housing cases. However, housing cases are governed by the Civil Procedure Act 1997, and are therefore subject to the Civil Procedure Rules, meaning that they would potentially be subject to the OPRC in the future. If and when that were to occur, it would be after consultation or concurrence with the Lord Chief Justice. It would occur because the committee had determined to proceed in that way—a committee which at that stage could be joined by suitable experts in housing law, and other related experts. Only at that stage would it be contemplated.

I notice, however, that although that is not presently anticipated, it is currently possible to initiate some housing enforcement claims online, through the Possession Claim Online website. That has been operational for almost a decade. There have been no difficulties—certainly no reported difficulties—over access to justice because of the use of that Possession Claim Online website. So I accept the potential width of the Bill.

This brings me to Amendment 8, in the name of the noble Lord, Lord Ponsonby, the issue of family proceedings and the concern that has been expressed there. There may well be situations, such as those posited by the noble Lord, Lord Pannick, where one would never anticipate online procedure or digital process being appropriate for types of family law cases, such as those concerned with children and their welfare. Nobody is suggesting otherwise, but it is not necessary for us to list particular exclusions, because in doing so one is liable to overlook something. It is far better for us to ensure there are appropriate safeguards in place, such as by judicial input, whether by consultation or concurrence; by having an appropriately qualified committee with the ability to bring in experts, particularly on areas such as family law or child welfare; and by ensuring that we proceed incrementally only where the introduction of these simplified procedures is in the interest of litigants. There are circumstances in which it may be in the interest of litigants, in family law cases, to have access to a simple, inexpensive online procedure for the resolution of some types of dispute.

[Lord Beith]

To support that approach, perhaps the Government should be using different language from that used in the Explanatory Notes in paragraph 1, which says:

“We expect the Committee to focus on the civil and family jurisdictions in the first instance”.


That is pretty broad.

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[Lord Mackay of Clashfern]

My Lords, I am supportive of Amendments 5 and 13, which outline the sort of assistance that is very much required. For Amendment 13, my preference is that the particular agency should be in some way connected with the Courts & Tribunals Service so that judicial supervision is available in respect of it. One institution that strikes me as very useful in this connection is the law centres, which were recipients of legal aid in my time. They are an economic way of providing legal assistance—much more economic than the expensive lawyers to which the noble and learned Lord, Lord Thomas, referred. Of course, it is not very good to have recourse to the inexpensive and cheap lawyers, because you are apt to spend more in the end. This is an excellent idea and requires the Minister to think quite hard about how it should be done.

This brings me to my Amendment 14, which is a slightly different matter. There are various skills available in electronic matters. You may have recourse to the internet and yet not be very sure what you have reached when you get there. There is a risk—it may not be large, but there is a risk—that if there is a court portal for certain things, you may find yourself on a website which is supposed to be the court portal but is actually run by people with a more private interest in litigation than the courts would have. I suggest Amendment 14 for consideration, which would require the Lord Chancellor to make arrangements to try to secure as far as possible that this does not happen to the rather inexpert people who may be using the internet, of which I regard myself as one.

[Lord Beith]

My Lords, the noble and learned Lord has reminded me that it is well known that the application system for the US ESTA visa waiver scheme has a number of such sites which exact charges, to which people are not liable because of the very modest charge on the official site itself. I will simply point out that HM Courts & Tribunals Service is already working on this sort of thing. There are 18 locations in which it is providing face-to-face digital support, or at least is said to be providing it. The Government have been working this up on the pilot schemes, so it seems to me another ideal opportunity, which the Minister should not neglect, to accept that the Government are actually on the right lines on this.

It would be rather more reassuring if the Bill contained some obligation to provide this kind of support. If it is not there, the Bill will be open to the charge from many people that it is creating a new system without ensuring that people can use it. The means are beginning to be developed by the Government, so I hope that they provide some statutory basis for them.

[Lord Thomas of Cwmgiedd]

I make two brief observations. First, I support the introduction of the amendment by the noble Lord, Lord Marks, and emphasise that HMCTS provides a lot of advice on various areas and, because it is now jointly accountable to the Lord Chief Justice as well as to the Minister, its independence ought to be seen. Secondly, if Amendment 13 is adopted, I would hope that due regard is paid to the provisions of the Welsh Language Act; subsection (5) does not do so properly at present.

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[Lord Garnier]

My Lords, in agreeing with the noble and learned Lord, Lord Judge, given his anticipation of beneficial light emerging from the Front Bench, I caution him that, as so often happens in these matters—particularly when the Government are giving something away, such as consultation—the light at the end of the tunnel ends up being the light of the approaching train. I urge that we temper our enthusiasm for any blandishments from the Government—not that my noble and learned friend on the Front Bench would ever be guilty of offering anything as vulgar as a blandishment.

The noble and learned Lord, Lord Judge, has made all the points that need to be made and has made them better than I possibly could. However, if one strips away the words “the Lord Chancellor” and replaces them with the words “Secretary of State”—and Clause 6(2) condescends to do that, because clearly the Lord Chancellor cannot agree with himself and has to agree with his schizophrenic self, the Secretary of State—and if one strips away the ancient legal title and office of Lord Chancellor, one finds that one is in fact dealing with a political Minister in a spending department at the Ministry of Justice and that he or she will be placed under all the pressures of both self-interest and Cabinet responsibility that go with being in a spending department. If it is inconvenient for the Chancellor of the Exchequer to allow the Secretary of State to agree with the Lord Chief Justice, he will disagree with the Lord Chief Justice. We should not be under any misunderstanding about that.

In the what must now be 20 years since the removal of the office of Lord Chancellor as head of the judiciary—and I am standing behind one of the finest exemplars of that office—with that position having now gone to the Lord Chief Justice, the metaphorical gap and indeed the actual distance between the law and Parliament has grown immeasurably. The understanding between the law and those who administer it and politicians has grown immeasurably. One only has to look at the record of some Secretaries of State for Justice who have succeeded my noble and learned friend and who do not have that intimate knowledge of the administration of justice to understand the difficulties and dangers that the noble and learned Lord, Lord Judge, anticipates—and have happened already.

While I support the sensible policy behind the Bill, all kinds of little niggles pop up from time to time which will destroy its purpose. They will make it less beneficial for the public good than it would otherwise be, were the suggestions made in the previous debate by the noble Lord, Lord Marks, and in this current debate by the noble and learned Lord, Lord Judge, taken into account. As a supporter of the Bill and the Government, I urge them not to allow themselves to be swept down the river of consultation when the river of agreement is a much safer journey to take.

[Lord Beith]

My Lords, the messages are getting more complicated and conflicting between approaching trains, rivers and nuclear options. Perhaps we should recognise that we are replaying debates in which some of us were involved when it was attempted to abolish the Lord Chancellor overnight and there emerged from that process the system we have now. It is very relevant to the noble Lord’s amendment and to the powerful points he has made in support of it. The change in the role of Lord Chancellor, quite correctly emphasised by the noble and learned Lord, Lord Garnier, as Secretary of State for the Government as well as Lord Chancellor, stretches forward to influence what we ought to be doing in this legislation.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Beith Excerpts

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

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.

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[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.

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[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.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Beith Excerpts

3rd reading (Hansard): House of Lords
Tuesday 2nd July 2019 Lords Chamber

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

My Lords, I am grateful to the House for its engagement on this Bill throughout its passage. I will first turn to government Amendment 3 on the topic of paper processors. I thank noble Lords once again for their engagement over recent weeks and commend the constructive discussions that we have had on this topic.

On Report, amendments were tabled by the noble Lord, Lord Beith; the noble Lord, Lord Pannick; and the noble and learned Lord, Lord Judge, to ensure that it was clear in the Bill that the ability to submit paper forms and documents would remain available throughout proceedings governed by online procedure rules, not just at the beginning of the application. I am aware that noble Lords were concerned that people should be able to receive documents from the court in paper form as well as to send them.

Of course, our original government amendment tabled before Report sought to address this issue, but I agreed to go away and look again at whether we could provide additional clarity. It has always been the Government’s intention to ensure that paper processors are available at each stage of the process. We are committed to an accessible justice system which supports the needs of all our users. I hope that our new amendments clarify this to the House.

The new amendments make provision for users to choose a paper option at any time throughout their proceedings, and this includes both the sending and receiving of documents. Our system must be accessible and useful for everyone, and with the Bill as drafted I now think that we have achieved that.

I will now turn to government Amendments 1, 2, 5 and 6. Before Report, the Government tabled two amendments relating to support for users of our online services. The first of these provided that, when making new court rules, the committee must have regard for the needs of those who require support to engage online. The second amendment followed this to ensure that the Lord Chancellor should also have regard for the needs of litigants who require digital support when deciding whether to allow or disallow the Online Procedure Rules. These amendments did, and still do, ensure that rules will be made with due consideration of the support which is in place for those requiring assistance to engage with digital services under the Online Procedure Rules.

I had tabled these further amendments to both clarify the intention and ensure consistency of drafting between the earlier government amendments and the amendment of the noble Lord, Lord Marks, which was accepted on Report. The amendment of the noble Lord, Lord Marks, places a duty on the Government to provide support for users of the online system. The amendment does not use the word “technical” to qualify this support, and instead requires the Lord Chancellor to provide support to assist those people accessing or who wish to access the online procedure by electronic means, in accordance with the electronic procedure rules. The support will be such as the Lord Chancellor considers appropriate and proportionate to assist users to gain greater access to and make better use of online services. The government amendments ensure consistency with that approach. They also underline our intention that users who might otherwise be digitally excluded must have appropriate and proportionate support to assist them to access the electronic services that will underpin the new online procedure.

In addition, there are consequential amendments. Amendments 4 and 7 are minor consequential amendments. Amendment 4 follows on from the insertion in Clause 5(7), by way of amendment on Report in the Lords, which allows the Lord Chief Justice to appoint a judicial member as chair of the Online Procedure Rule Committee. This amendment means that the Lord Chancellor, subject to the concurrence and consultation requirements in Clause 7, may if necessary amend Clause 5(7), as he may amend other provisions in Clause 5.

Finally, following amendment on Report in the Lords, Amendment 7 is consequential to the insertion of Clause 10(3), which requires the Lord Chief Justice’s concurrence before the Lord Chancellor may amend legislation in consequence of, or in order to facilitate the making of, Online Procedure Rules. It allows the Lord Chief Justice to nominate a member of the senior judiciary to give such concurrence. I beg to move.

[Lord Beith (LD)]

I think we are in danger of slight confusion, with too many amendments moved at the same time. This is obviously a mark of the Minister’s enthusiasm for his amendments, which is actually shared by Members around the Chamber, because they are the fruit of the discussions to which he referred. I simply want to say, before it all becomes water under the bridge, how very much I welcome the Minister’s Amendment 3, which fully achieves what I have been trying to do in amendments both in Committee and on Report. This is, as the noble and learned Lord indicated, to ensure that someone who does not feel comfortable with or able to use the online system can participate in the same process using paper, can receive any documents they have to receive and can put in any subsequent documents, not just the initiating documents, on paper, because the Courts Service will scan the documents and provide the necessary copies as well.

I suspect that this is a minority and even a generational thing. When people like me have ceased even to think of engaging with court cases, or are lying beneath the ground, everybody will be online—but that is certainly not the situation at the moment. We do not want the law to be blind to the concerns of those for whom this is a very new kind of proceeding, and one for which they do not have the necessary skills or experience, particularly when dealing with something as difficult as a legal case. So I am very grateful to the Minister for all he has done in this respect and I support this—and indeed his other amendments.

[Lord Judge (CB)]

My Lords, I support not only the amendments to which my name is attached but all the amendments proposed today. Taken with the earlier amendments which the House considered and which the Government have added, this makes for a much better Bill than ever it was. The particular point I wish to emphasise is that, as a result of these changes, the House, and in particular the Government, have recognised the impact of the constitutional reforms of 2005. The emphasis ought now to be recollected whenever there are any proposals to address the way in which the courts system works. Beyond that, I thank the noble and learned Lord, Lord Keen, for his personal contribution to the discussions and improvements—and, through him, I thank his team.