Courts and Tribunals (Online Procedure) Bill [Lords]

Paul Maynard Excerpts

2nd reading: House of Commons & Money resolution: House of Commons
Tuesday 16th July 2019 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Paul Maynard)]

I beg to move, That the Bill be now read a Second time.

It is a pleasure to have the opportunity to move the Second Reading motion for this Bill. The Bill has already been considered in detail in the other place, and it follows the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018—also known as CATJAFS; we now have CATOP, the Courts and Tribunals (Online Procedure) Bill. This enabling measure is another important step in the transformation of our justice system.

Our judiciary, together with our courts and tribunals, is rightly regarded as among the finest in the world. To maintain and build on that reputation, it is critical that we position ourselves at the forefront of using new technology to improve the ease with which people can access justice. However, it is also clear that the modernisation of our court system must have ordinary court users at its heart. People need our new digital services to be accessible, understandable and easy to use, and that is what the Bill seeks to facilitate.

Of course, the Bill is only a part of our overall ambition. In total we are investing more than £1 billion in transforming Her Majesty’s Courts and Tribunals Service, making the justice system simpler to access, more convenient to use and more efficient to run. Our court reform programme will make the most of new opportunities that innovations in technology offer to revolutionise how we deliver justice.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

While I welcome the new digital procedure in the courts, I am deeply concerned that it may result in some people having difficulty accessing the courts online. Can the Minister confirm that HMCTS will not close any more courts until a proper impact assessment has been carried out?

[Paul Maynard]

I thank the hon. Gentleman for that point, which is rather separate from the Bill; this is an enabling measure to ensure that a procedure committee can be formed. However, I hear his point. We have no current plans to close further courthouses. We monitor their usage carefully. He will recall our previous debate about the “Fit for the future” consultation, setting out the considerations that will be brought to bear when looking at the use of our future estate, and I hope my answer to that debate will inform him.

The Bill will create an online procedure rule committee, which will be responsible for making online procedure rules for specified proceedings across the civil, family and tribunals jurisdictions. The committee will operate with the same powers as existing rule committees. We want to ensure that our online services and systems and the rules that underpin them are easily accessible and navigable routes for people to bring cases to court. To ensure that we build on and complement the digital working already in place, we intend to take a gradual approach to the implementation of these new online rules.

[Robert Neill (Bromley and Chislehurst) (Con)]

I welcome the principle behind the Bill. In setting out the enabling nature of the measure, will the Minister bear in mind that there is an underlying principle, consistent with the Briggs report, which the Lord Chief Justice, Lord Burnett, made clear in giving evidence to the Justice Committee? It is that while professional users will be obliged to use the online procedure, it is not the intention that litigants in person will be. Lord Burnett’s evidence clearly was that a paper alternative will be available as a safeguard for litigants in person. That is an important measure for vulnerable court users. Will the Minister confirm that?

[Paul Maynard]

My hon. Friend makes an important point with which I wholeheartedly agree. I always agree with the Lord Chief Justice in everything he says and does, and I would never dream of disagreeing with him. The fact that an online process is available makes it in no way obligatory for people to use it. There is still a case for physical hearings and very much still a case that people who wish to use a paper system should be able to do so.

[Victoria Prentis (Banbury) (Con)]

As we just heard, the Minister agrees with the Lord Chief Justice on all matters. Does he agree with him that court structures and buildings need considerable investment? Will he reassure me that digitalisation, which is welcomed by those of us who have used the courts a great deal, is not at the expense of the physical courts?

[Paul Maynard]

We are cheerfully straying far and wide in this Second Reading debate, but I am more than happy to confirm that any innovation in online procedures does not in any way invalidate the concerns that many have about the state of our court estate. My hon. Friend will know that we are spending an extra £50 million this year on renovating courts. There is much more to do, and I am keen to see all buckets removed as soon as possible from the court system. I cannot promise that the online procedure rule committee is the remedy for that, but I assure her that I am working on it.

The new rule committee will be judicially chaired and comprised of three members of the judiciary, a member of the legal profession and two additional members, one of whom has experience of the lay advice sector and the other from IT design. While the new committee will be smaller than existing rule committees, the Bill provides the Minister with the power to amend the committee’s membership so that it has the flexibility to respond to changes in subject matter and technology.

[Bambos Charalambous]

On the membership of the committee, has the Minister given thought to including a disabled user and people from the legal profession—a solicitor, barrister or legal executive—to give input into the way that the changes in court procedures are carried out?

[Paul Maynard]

It is one of the theoretical principles of governance that the moment we set up a committee, everyone thinks of extra people who should be on it. I hear the hon. Gentleman’s point. There is nothing in the Bill that prevents the composition of the membership from changing over time, as the online procedures that the committee is considering change. In addition, it can set up sub-committees to look at separate specific areas. The Bill is an enabling measure. As what we do changes, I am sure that the composition of the membership will also change, to include differing skillsets, but I hear what he says and thank him for his intervention.

The committee’s combined expertise will ensure that our rules framework supports online services, while offering a straightforward, accessible and proportionate experience to those who are accessing justice. These powers mirror and do not exceed those provided in respect of the civil, family and tribunal procedure rules.

On Third Reading of the Bill in the other place, peers expressed their support for and enthusiasm about the Bill and for the Government amendments made throughout its passage. We have listened to and taken on board many of the points raised during the Bill’s passage through the Lords and have amended the Bill accordingly. In particular, the Bill now reflects the Government’s renewed commitment on two subjects.

First, people who may need support to participate online will be offered it. The Bill now makes explicit the duty to provide appropriate and proportionate digital support. The Bill also makes it clear that, before rules are made, the Lord Chancellor and the committee will have regard to the needs of those who will require digital assistance. This makes clear the Government’s commitment to an accessible justice system that supports the needs of all our users.

[Wera Hobhouse (Bath) (LD)]

Online procedures will not compensate for the under-investment of this Government in physical courts, which has led to a number of IT failures, the crumbling courts estate and delays in cases being heard. Does the Minister agree that financial cost cutting should never come before the accessibility of physical or digital justice systems?

[Paul Maynard]

In the grand philosophical scheme of things, I probably agree with the hon. Lady, but the purpose of the Bill is to ensure, as we move online, that the rules are common across civil, family and tribunal procedures. To my mind, it is about ensuring, as we move online, that they operate to a common procedure in order to harness the user experience wherever possible, and that is what this Bill seeks to do.

Secondly, the Bill clearly recognises that some people may not want or be able to use our online services, even with support, so it makes explicit provision for the availability of non-electronic channels, which will of course include paper. That was always the Government’s intention, and we have now made clear the provision for users to choose a paper option throughout proceedings.

We are clear that this Bill will not prevent anyone from accessing justice; rather, it will improve access to justice by opening up a new route of access and creating a swifter, easier alternative for litigants. The reforms I have discussed are part of our important manifesto commitment to reform our courts and make them fit for the 21st century. For those reasons, I commend the Bill to the House.

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[Paul Maynard]

With the leave of the House, I will do my best to respond to the points raised as speedily as I can, because I know that many are now gathering for the next debate. It is interesting that we started off the debate with a bit of a spiel about ideology and cuts. I found that intriguing, given that we are talking about the £1 billion Government investment in our Courts and Tribunals Service and its modernisation. I am grateful to the Chairman of the Select Committee, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), for reminding everyone in the House that these proposals have the support of our senior judiciary.

A number of concerns were raised about what was termed digitisation by default. Let me make it clear that innovation is crucial to delivering modernisation, but we should never introduce more complexity or technological innovation merely because we can. We should do so because that innovation satisfies our requirements for proportionality and accessibility within the justice system. We always need to work with the grain of human nature, as our law is essentially a human contract in and of itself. Changes should never result in less justice or in people being incentivised not to behave in their own best interests. I have said at least twice in the debate already that the alternative methods must be protected at all times. People can seek telephone advice, for example. We are also piloting face-to-face advice in at least 25 areas. At any point, people can opt out of the online procedure, and the paper-based alternative will always be available. Either side in a case can opt out of an online procedure to ensure that it does not occur online.

Concerns were also expressed about piloting. I hear the point that there is no need to rush, and we are starting by focusing on civil claims under £25,000 being conducted online. Evaluation is important, and I have made it clear that I do not want Her Majesty’s Courts and Tribunals Service to mark its own homework. There will be an independent evaluation, and the panel has already met. It will have academic input in particular to look at the outcomes in relation to access to justice and the cost to users.

The membership of the committee was raised on a number of occasions. Let me be clear that the committee needs to be sufficiently agile to deal with a changing environment in which numerous online procedures will appear from time to time. Nothing in the Bill prevents the Lord Chancellor from utilising clause 7 to expand the membership of the committee when he sees fit to do so. At the same time, the committee can at any point choose to set up sub-committees or to bring in any wider expertise that it needs to draw up the procedures that it thinks appropriate.

[Robert Neill]

I believe that that will be welcomed by a number of practitioners. Can the Minister ensure that, in practice, no bureaucratic impediments will be put in the way of that happening? This intervention also gives me the chance to draw Members’ attention to my entry in the Register of Members’ Financial Interests, which I omitted to do in my speech. I apologise for that, Madam Deputy Speaker. Doing it this way is quicker than making a point of order.

[Paul Maynard]

That is an innovative way to facilitate that speediness.

The shadow Minister, the hon. Member for Bolton South East (Yasmin Qureshi), mentioned parliamentary scrutiny. We are keen to ensure that accountability is maintained, and I continue to believe that it is right for these powers to reside with the Lord Chancellor, who is directly accountable to Parliament, whereas the committee is not. We are not trying to shift the constitutional balance within the Bill. We are looking to maintain that balance, which is why we have sought to ensure that the Bill mirrors the long-standing arrangements for the existing rule committees.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), who spoke for the Scottish National party, rightly raised Scottish representation, and I am very sympathetic to the points that he made. Obviously, I am as keen as he is to devolve tribunals. Not many Ministers stand at this Dispatch Box encouraging devolution, but in this case I am in concurrence with him, to use the word of the day. I am sure that we will continue to discuss that matter, but I hear the point he made about Scottish representation. He also raised the intriguing question why we have only one committee for online procedures, and he asked why the other three committees were not given the task of setting up their own online procedure rules. Essentially, the answer to that lies in the fact that we need the procedure rules to be the same across each of the civil, family and tribunal divisions of our courts. The decision was taken, with the support of the judiciary, to go down that route.

The hon. Gentleman also rightly raised the point that not every type of case is suitable for online procedures. He cited the welfare of children, and that is a good example. We will not bring anything online without seeking the concurrence of the Lord Chief Justice and without laying an statutory instrument that will be debated in both Houses, but I hear what he says. There are many types of cases where physical hearings are the most appropriate path to go down, and I certainly agree with him on that.

On that basis, I commend the Bill to the House.

Question put and agreed to.

Bill accordingly read a Second time.

Courts and Tribunals (Online Procedure) Bill [Lords] (Programme)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Courts and Tribunals (Online Procedure) Bill [Lords]:

Committal

(1) The Bill shall be committed to a Public Bill Committee.

Proceedings in Public Bill Committee

(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Thursday 25 July 2019.

(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.

Proceedings on Consideration and up to and including Third Reading

(4) Proceedings on Consideration and any proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings on Consideration are commenced.

(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.

(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and up to and including Third Reading.

Other proceedings

(7) Any other proceedings on the Bill may be programmed.—(Matt Warman.)

Question agreed to.

Courts and Tribunals (Online Procedure) Bill [Lords] (Money)

Queen’s recommendation signified.

Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),

That, for the purposes of any Act resulting from the Courts and Tribunals (Online Procedure) Bill [Lords], it is expedient to authorise the payment out of money provided by Parliament of any expenditure incurred under or by virtue of the Act by the Lord Chancellor.—(Matt Warman.)

Question agreed to.

Courts and Tribunals (Online Procedure) Bill [ Lords ]

Paul Maynard Excerpts

Committee Debate: 1st sitting: House of Commons
Tuesday 23rd July 2019 Public Bill Committees

[Yasmin Qureshi]

It is a pleasure to serve under your chairmanship, Sir Gary.

We have tabled amendment 1 to allow people to continue to conduct proceedings on paper. While we accept the advent of digitalisation and that increased use of the technology available is helpful and appropriate for our court procedures, making matters easier and perhaps saving time, it is also important to ensure that people are aware that they can use conventional paper methods and procedures.

Members will be aware that many members of the public, in particular the older population —I do not mean this disrespectfully—are not very computer savvy. They may not have the internet at home, and they might be confused about the procedures to adopt, where to file things online and whether they have to get the internet installed at home. All those challenges arise, so they must be able at the beginning of proceedings and during the course of proceedings, if it becomes appropriate, to switch to the paper system. The amendment would deal with that issue.

[The Parliamentary Under-Secretary of State for Justice (Paul Maynard)]

It is a pleasure to serve under your chairmanship, Sir Gary. It is important to recognise, as we all do, that the eyes of the world and the nation are upon us in this room, as we are the most important political event of the day. I am sure we will try to live up to that level of scrutiny.

As we are considering the entirety of clause 1, I will make a few preliminary comments. The clause deals with the foundations of the new approach to the online procedure. It provides that there are to be online procedure rules that require specified civil, family or tribunal proceedings, including proceedings in employment tribunals, and that the employment tribunal should be subject to the online procedure. It allows those kinds of proceedings to be initiated, managed and resolved by electronic means. Rules may provide for all or any part of the procedure for conducting proceedings online, including starting and defending proceedings or participating in hearings. Different rules may be made for different proceedings and for circumstances in which rules are not to apply or cease to apply. This allows flexibility and proportionality in giving effect to all procedure rules and ensuring that the right types of proceedings are supported by the right types of rules.

The clause also permits rules to provide for specified proceedings to be taken in a different court or tribunal from the one that would normally take them, and for central proceedings that would normally be heard in different courts or tribunals to be taken together. To ensure that the online procedures rule committee works for the benefit of all users, the power to make these rules is to be exercised in so far as it ensures that the procedure is accessible and fair, the rules are simple and simply expressed, disputes are resolved quickly and efficiently, and the rules support the use of innovative measures on resolving disputes.

The requirement for clear, accessible, simple and intelligible rules will make it easier for ordinary court users to navigate the system and access justice. Although the rules have been designed to be of particular benefit for ordinary court users, we expect them to be equally helpful for IT technicians and legal practitioners to make overall sense of the underlying framework of the IT and online service. It also strengthens the emphasis on innovative methods of dispute resolution, which might include online tools that support parties in resolving their issues without having to resort to a formal court hearing. The Government believe that these innovative methods are likely to widen access to justice further, to a wider cohort of users than now.

The clause also requires that when the committee make the rules, it must have regard for

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

to ensure that the committee is always aware of people who are digitally disadvantaged. Clause 1 specifies that if the online procedure rules require someone to participate in proceedings by electronic means, the rules must also provide for them to participate by non-electronic means. That was an amendment that the Government added in the House of Lords, and it demonstrates our commitment to paper proceedings.

Clause 1 gives effect the schedule 1, which deals with practice directions. These powers are similar to those that are currently provided in the Civil Procedure Act 1997, the Courts Act 2003, the Tribunals, Courts and Enforcement Act 2007 and the Employment Appeal Tribunal (Amendment) Rules 1996. The powers will enable the Lord Chief Justice or his nominee, with the approval of the Lord Chancellor, to issue practice directions in civil and family proceedings to which online procedures apply.

Amendment 1, which stands in the name of the hon. Member for Bolton South East, is designed to to give users the ability to opt out of using online services at any time, and switch instead to a paper route. Our ambition is to develop online services that are so easy to navigate that, over time, digital channels will become the default choice for the majority of our users. Nevertheless, I absolutely agree that it is right to ensure that people can choose a paper option at different stages throughout proceedings, and vary that choice at different points where that is their preference. I must clarify that the Bill already provides for this—indeed, we amended the Bill in the other place to ensure that this is absolutely clear.

Subsection (6), inserted by the Government amendment in the other place, provides that

“Where Online Procedure Rules require a person to initiate, conduct, progress or participate in proceedings by electronic means”,

the rules

“must also provide that a person may instead choose to do so by non-electronic means.”

Litigants will not be tied to a particular channel. There is nothing in the Bill that requires a litigant who begins proceedings online to continue to do so throughout the entirety of their case. The Government are aware that some litigants might be less able or confident in using some parts of our digital services, so we will allow them to transact with us easily via a mix of paper and digital channels. To be clear, litigants will be able to choose to use paper or online options at different points during the same proceedings if they wish to do so, and Her Majesty’s Courts and Tribunals Service’s approach is built around providing and supporting that choice. The amendment is therefore unnecessary. It does not add anything to the Bill, so I urge her to withdraw it.

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

rose—

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[Daniel Zeichner (Cambridge) (Lab)]

I, too, apologise for rising at the wrong point, Sir Gary.

I support this friendly amendment. Last year when the Government considered the future of the magistrates court in my city of Cambridge, I visited the courts. A comment consistently made was that new technology was not always reliable. Is the Minister confident that any new system will be robust? In the absence of such confidence, having an alternative is reassuring for many people.

[Paul Maynard]

I thank the hon. Member for Brighton, Kemptown for his observation about the new Government. I hope the Bill is not the first to fall victim to a catastrophic U-turn, because that would be a great disappointment to us all.

On the point about the reliability of technology, the Bill is an insurance policy against any unreliability, not because of any particular system being inherently unreliable, but because occasionally someone might not plug something in—it could be as simple as that. I recognise that it is important to have alternative means available.

We could put many provision in the Bill that do not necessarily need to be in the Bill. We cannot see where technology will take us in 10 to 20 years’ time. Who knows? Who foresaw the internet in the early ’80s, for example? The point is that whenever anyone engages with the online systems, the opportunity to use non-electronic means is a clearly advertised joined-up process. It does not need to be in the Bill. Indeed, such a provision might be outdated in a few years’ time.

Also, and more important, the Bill sets up an online procedure rules committee. I do not want to fetter the decision-making powers of that committee on the correct online procedures for every type of case that it deals with. It will have to deal with this question on a case-by-case basis. As much as I love Christmas trees, turning every Government Bill into a Christmas tree on which we hang our own individual baubles is equivalent to erecting a gravestone over our political efforts, so I once again ask that the amendment be withdrawn.

[Yasmin Qureshi]

No one on the Opposition Benches is asking for their own baubles on a Christmas tree. The amendment is sensible and friendly. We want it written into the Bill so that the provision is crystal clear. I therefore want to press the amendment to a vote.

Question put, That the amendment be made.

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[Ian C. Lucas (Wrexham) (Lab)]

I support my hon. Friend. As a former practising solicitor, I have always thought it is very important to get things in writing—I often give that piece of legal advice.

The development of phone lines and helplines, as described by my hon. Friend, is unhelpful. There are no obligations in the clause on the nature of the support given to those who use the system. That leads to what is out of order in the broader support system within the legal aid structure, but we need to be much more specific about the range and type of support that will be given to people. They have real needs, and are just as entitled to use the justice system as are people of very considerable means.

[Paul Maynard]

I am rather disappointed that the hon. Member for Brighton, Kemptown regards Wolfgang Amadeus Mozart or Johann Sebastian Bach as “crummy”; far from it.

The hon. Gentleman is slightly concerned about fettering the committee.

[Ian C. Lucas]

My hon. Friend is right. Even Wolfgang Amadeus Mozart sounds crummy down a phone line.

[Paul Maynard]

Wolfgang Amadeus Mozart had a hearing problem. Perhaps the hon. Member for Brighton, Kemptown needed an induction loop to avail himself fully of the facility.

[The Chair]

Maybe we should get back to the Bill.

[Paul Maynard]

Thank you, Sir Gary.

The hon. Member for Brighton, Kemptown made a more important point in his concern that we should not seek to fetter the committee. It might help if we take a step back and think about what the Bill seeks, which to establish a committee that, in and of itself, will make a range of rules around how the court functions, the processes within the court and what the judge can and cannot do in a wide range of circumstances, which neither the hon. Gentleman nor I, nor any other member of the Committee, can predict.

Not every single legal process within a courtroom, or the entire judicial system, can be predicted. It is not sensible to try to cram as much as possible into the Bill so as to pre-empt the ability of the rule committee to decide what is appropriate for the various range of online procedures that we will roll out in years to come. It is not sensible to try to capture in the Bill the technology of 2019 in the hope that that lasts above and beyond wherever technology might take us.

I agree with the spirit of the amendment, but I believe we made changes to the Bill in the other place that make the amendment unnecessary. I will try to provide assurance—it may be a vain hope, but let me try. Her Majesty’s Courts & Tribunals Service has committed to providing a comprehensive package of assisted digital support through a number of different means, which includes telephone support. We have a network of trained call handlers dealing with telephone queries and helping to signpost people to relevant information. Those handlers assist with the completion of online forms, answer general queries and identify circumstances in which a person might benefit from more focused face-to-face support.

The use of webchat is also being trialled for those purposes, and we are testing screen-sharing software so that support staff can see the screen of callers to help point and highlight, and provide support in turn. Like all our new services, assisted digital support has been piloted, tested and improved on the basis of continuous user feedback, to ensure that it is targeted at those who need it most.

Let me also clarify that clause 4 is a legally binding duty on the Lord Chancellor to arrange for the provision of appropriate and proportionate support to those litigants who may be digitally excluded. As I have explained, telephone support is already a key component of meeting that obligation. HMCTS already provides a telephone helpline for litigants who require help, and there are no plans to remove that service.

Further, the hon. Lady clarified that, from her perspective, any helpline must be free for use. I agree that that is important, and can confirm that HMCTS does not charge for the telephone service, although admittedly some mobile networks might levy a call charge. Consequently, we are working on approaches to minimise those costs where they are an issue. We already call people back when requested and are exploring the introduction of an automated message to advise people as early as possible in their call of that option.

It is my view that the combination of support that the Government are providing to litigants with the legal duty in clause 4 means that the amendment is unnecessary, and I urge its withdrawal.

[Andy Slaughter (Hammersmith) (Lab)]

What the Minister says, along with the text of the clause, indicates a potential problem. This is a major change and problems are anticipated. The Minister has put something on the record today, but where are the Government going to set down, if not in the Bill, the package of measures being introduced to ensure that people can have comfort that their needs will be addressed? Will that be in regulations? Will there be a code of conduct? Will it simply be in a letter sent to us by the Minister? I am not sure that what the Minister has said so far is sufficient.

[Paul Maynard]

I am always nervous when telling the hon. Gentleman, who is an experienced lawyer, how the courts work. He has spent far more time in courts than I have in my life. If I may rehearse my earlier point, clause 4 is a legally binding duty on the Lord Chancellor to arrange for the provision of appropriate and proportionate support to those litigants who may be digitally excluded.

In my view, that legally binding duty will encompass telephone supportbut it will be for the procedure rule committee to determine in each and every example where it has to formulate rules for online procedures whether that should include at least telephone support or over and above that. It will be within the ambit of the Committee to stipulate whether it wishes to do so, and whether a wider range of means of support may be appropriate for the technology of the time when it seeks to make those rules.

[Yasmin Qureshi]

I am not trying to be difficult, but we will push the amendment to the vote for two reasons. First, clause 4 states:

“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…”

Do we know what “appropriate and proportionate” mean? Although the rule committee presumably will decide what is appropriate and proportionate, it is important for it to know that our amendment adds the consideration of a free helpline. The support is not limited to that—other things could be included. It is important to include free phone lines so that the rule committee is assured that it can look at all possible options, including free telephonic support at the point of use.

Question put, That the amendment be made.

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[Ian C. Lucas]

I want to make one brief point: the jobs of barristers, solicitors, legal executives and magistrates are all very different. We need input on the effect on practitioners to be reflected in a committee that makes decisions that affect them all. We need to recognise the different roles in the committee that sets things up.

[Paul Maynard]

The hon. Member for Bolton South East points out that her amendment is common sense. When someone tells me that, it normally means that I should subject it to triple scrutiny. My antennae start to twitch at that concept.

The hon. Lady also said that she wanted a diverse committee. That probably means having slightly more than 10 people on it, which could well be a challenge too. The point made by the hon. Members for Hammersmith and for Wrexham was totally fair, and I hope to explain how the widest possible range of people, with experience germane to the issues that the committee will consider, can play the role in the committee that they seek.

The Government support the need for a small, focused and agile committee to make new court rules that are easy to understand and tailored for ordinary users. The committee will initially have six members, including a representative from the legal profession and members from the judiciary, IT and the lay advice sector. I believe that that set-up will allow for the creation of simple, effective rules that support all users throughout their journey.

It is not just the Government who have decided that that is the appropriate number but the judiciary. However, it is not set in stone. We recognise that sometimes a variety of expertise may be needed, so we expect that over time the Lord Chancellor will wish to make use of clause 7 to change the composition of the membership. The committee will need to draw on expertise from across disciplines and jurisdictional boundaries, reflecting the type of proceedings that are being considered at any moment in time.

We believe that that approach will allow us to ensure that rules are always made by those most suited to the task, without hampering the committee’s efficiency. As the first online procedure that the committee will consider will be online civil claims below £25,000, it seems sensible to begin with a committee best suited to developing procedures relative to that particular type of case. Furthermore, it should be noted that clause 8(1) requires the committee to

“consult such persons as they consider appropriate”.

That is another route to ensure that the committee will have access to the relevant knowledge and expertise needed.

Adopting amendment 3 would create an imbalance in the number of members who could be appointed by the Lord Chancellor in comparison with the number that could be appointed by the Lord Chief Justice. That is something that Members of the other place, and the previous Lord Chief Justices in particular, specifically did not want to happen. I therefore urge the hon. Lady to withdraw the amendment.

Amendments 4 and 5 propose adding a member to the committee to represent the views of people who are digitally excluded. I have heard the many representations made, and I agree that we must ensure that proper consideration is given to the needs of those who require support to access digital services. As colleagues will be aware, we amended the Bill in the other place to ensure that all members of the committee always consider the needs of those who struggle to engage digitally.

I fully agree that digital support for those who want to access online services but struggle to do so for a variety of reasons is paramount if the system is to be effective. The committee already includes someone with IT expertise and someone from the lay advice sector with knowledge of user-specific experience. Considering that, alongside the fact that all members must now consider the needs of digitally excluded people, I do not consider that the amendments are required.

It is also important to recall once again that clause 7 provides a power to vary the membership of the committee, so if in the future it was felt appropriate to reflect a particular expertise permanently on the committee, that can be provided for. Under clause 8, the committee must also consult those it considers appropriate, so can readily avail itself of any expertise needed. I therefore urge the hon. Lady not to press amendments 4 and 5, nor amendment 3.

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[Yasmin Qureshi]

We think the Government are being a bit naughty in not allowing Parliament an oversight—[Interruption.] My hon. Friend the Member for Warwick and Leamington expresses surprise. Clause 7 states at the end:

“Regulations under this section are subject to negative resolution procedure.”

Members of the Committee know what that implies. It basically means that it does not come to Parliament, does not get a full discussion, does not get a full hearing, and goes through the on the nod procedurally. When the power is given to change things relating to the committee, the legislature must make a decision—at the end of the day, Parliament is supreme. We accept that a number of different people will be consulted. We have asked for a small amendment to the effect that we have an affirmative resolution procedure rather than a negative resolution procedure.

All parliamentarians should push for that. We should show that we have a complete say. We accept that clause 7 refers to the fact that a number of different people will be spoken to, that discussions will be held and that decisions will be made but, at the end of the day, Parliament is supreme and therefore we ask that, whatever changes are made, and whatever changes are made by the Lord Chancellor under clause 7, they should be subject to an affirmative resolution procedure and not a negative one.

[Paul Maynard]

Amendment 6 seeks to change the negative procedure to the affirmative procedure whenever the Lord Chancellor wants to make a change to the committee’s membership. As I have explained, we envisage that the new committee will be agile, focused and flexible—I fear that those words will be chiselled on my gravestone.

Over time, as the scope of the online procedure widens, the Lord Chancellor may wish to make changes both to the number and to the expertise of committee members. The amendment would have the effect of hampering the committee’s ability to respond quickly and effectively to new situations. If the committee needed to draft new rules in a new area, it may decide that additional expertise is required, and may need new members to help to form a considered view. The amendment would mean that a debate in both Houses of Parliament would need to take place before an additional person could become a member of that committee. That would be an inappropriate use of parliamentary time, and is counter to our aim of ensuring that the online procedure rule committee can always access the expertise it needs quickly and efficiently.

Requiring changes to membership of the online procedure rule committee by way of an affirmative procedure would also be inconsistent with provisions for amending the membership of the civil, family and tribunal procedure rule committees. I urge the hon. Lady to withdraw amendment 6 because of that.

Amendment 7 seeks to change the negative procedure to the affirmative procedure when the committee makes court or tribunal rules. In the other place, a number of concerns were raised by noble Lords about the constitutional implications of the Bill. I take this opportunity to assure hon. Members that the Bill has been drafted precisely to ensure that the existing constitutional balance is protected.

The Bill mirrors the existing rule-making powers in legislation for the civil, family and tribunal procedure rule committees, which means that the process for making rules follows the traditional and usual method, in which the committee holds regular meetings and consults appropriate persons before making rule changes. Once drafted and signed by the committee, the rules are then allowed by the Lord Chancellor. Finally, the Lord Chancellor lays a statutory instrument in Parliament subject to the negative resolution procedure. It is clear that, if rules are drafted and agreed by the committee as well as by the Lord Chancellor, we do not need to have two further debates.

If rules laid before Parliament under the powers were subject to the affirmative resolution procedure, it would not only place the new committee out of step with existing procedure committees, but significantly reduce the flexibility of the committee and hamper its ability to support in a timely fashion new online services as they quickly adapt and improve. In addition, minor changes to the rules are made regularly throughout the year, so requiring a debate in both Houses of Parliament every time a change is made would be time-consuming and disproportionate. I consider that the negative procedure strikes the right balance between ensuring sufficient parliamentary scrutiny and allowing the new committee to operate effectively. I urge the hon. Lady to withdraw amendment 6 and not to press amendment 7 to a Division.

[Yasmin Qureshi]

We will press the two amendments to a Division. Parliament spending time looking at procedures does not waste time or clog up the parliamentary timetable. In fact, the parliamentary timetable is quiet, so we have enough time to deal with a few more regulations. I am not sure the Minister’s argument is the best one. We believe that Parliament should be able to see what is happening and therefore should be able to subject such regulations to the affirmative resolution procedure.

Question put, That the amendment be made.

--- Later in debate ---

Power to require rules to be made

[Paul Maynard]

I beg to move amendment 9, in clause 9, page 8, line 32, leave out subsection (4)

Subsection (4) requires the appropriate Minister to obtain the concurrence of the Lord Chief Justice before giving notice to Online Procedure Rule Committee requiring it to make rules.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 8, in clause 9, page 8, line 33, at end insert—

“(4A) The Committee may decline, with written notice, the appropriate Minister’s request to create Online Procedure Rules to achieve a purpose specified if deemed inappropriate or unnecessary by the Committee.”

This amendment would allow the Online Procedure Committee to decline a Minister’s request to create Online Procedure Rules.

Government amendments 10 to 12.

[Paul Maynard]

It is a pleasure to go first for a change. On Third Reading, the other place voted to amend clauses 9 and 10 so that the Lord Chancellor and the Secretary of State for Business, Energy and Industrial Strategy must obtain the concurrence of the Lord Chief Justice when the Lord Chancellor or the BEIS Secretary gives notice requiring the committee to make rules to achieve a specified purpose, or the Lord Chancellor makes consequential amendments to existing legislation to ensure that the online procedure rules operate properly. Previously, the Lord Chancellor could use the powers without the need to obtain agreement from the Lord Chief Justice. The powers originally reflected the legislative procedures in place for the existing rule committees, which have worked well for many years, and which I believe should be retained.

The amendments in the other place have also altered the constitutional position. I do not consider it acceptable to use the Bill as a vehicle for significant constitutional reform. I also strongly believe that the amendments made to clause 9 in the other place fetter the Lord Chancellor’s power to give effect to Government policy through the online procedure rules. The clause now requires the Lord Chief Justice to take a decision on the implementation of that policy, which contradicts the traditional role of the independent judiciary and the concordat: a long-standing agreement between the judiciary and the Executive that specifically refers to the Lord Chancellor’s power to require committees to make rules to achieve a specified purpose.

The concordat also refers to the power to amend, repeal or revoke any enactments governing practice and procedure to facilitate the making of rules considered necessary or desirable following consultation with the Lord Chief Justice, as was originally provided for in clause 10. It is important that the Bill reflects the position in the concordat. The Lord Chancellor is directly accountable to Parliament for any rules that are made, so it is right that the responsibility lies with him alone. Therefore, with amendments 9 to 12, the Government seek to overturn the amendments made in the other place and to revert to the original wording. When these amendments are seen alongside Government amendments tabled in the other place, I hope Members will agree that there are sufficient safeguards in the Bill to allay concerns.

We amended the Bill in the other place so that before laying regulations to bring new types of proceedings online, the concurrence of the Lord Chief Justice and the senior president of tribunals is required. That is in addition to the requirement already in the Bill of an affirmative vote in each House agreeing to any such regulations. The regulations set out the framework in which the rules will operate, and the Lord Chief Justice must agree to that framework. The Lord Chancellor cannot direct the rule committee to make rules outside the framework that the Lord Chief Justice has agreed to, so the safeguards in clauses 2 and 3 provide the requisite assurances.

Furthermore, the power under clause 10 can be used only for changes that are consequential on the online rules, or that are necessary or desirable to facilitate online rules. We therefore consider that there are sufficient safeguards to ensure the appropriate use of the powers, and there is no need to provide for concurrence with the Lord Chief Justice and senior president of the tribunals in clauses 9 and 10 as well. We have actively engaged with the peers who had concerns and we will continue to discuss this part of the Bill with them ahead of its returning to the other place, where I am hopeful of achieving agreement to the changes.

Amendment 8, tabled by the hon. Member for Bolton South East, seeks to allow the committee to decline a ministerial direction to make rules on a specified topic. It is my position to ensure that lawful government policy can be given effect to and that the relevant Minister should be able to direct the Committee to make rules. The rules might be required to ensure that the online procedure is operable, and so might need to be made urgently, without additional procedure. Concern was raised about the clause on Second Reading, and I hope to be able to assure hon. Members that it is not a power grab by the Executive. The power already applies to existing rule committees and to other procedural rules not subject to the Bill.

Clause 9 reflects similar provisions agreed between the then Lord Chancellor and Lord Chief Justice under the concordat of 2004 and given effect in the Constitutional Reform Act 2005. In practice, the power is not frequently used—indeed, there is just one example of its having been used in the existing civil procedure rule committee. Nevertheless, it is an important power and reflects the established constitutional arrangement. The amendment could cause a problematic constitutional situation whereby a rule committee could refuse to draft rules following the written request of a Minister who sought to implement a specific policy. There would be democratic concerns if a committee was able to refuse to prepare rules on a policy that the Government had been elected to deliver. Such a situation would risk embroiling the judicial members of the committee in a political debate. We should all seek to avoid that.

The proposed amendment would also lead to a situation in which the new committee operates differently from other committees that deal with civil, family and tribunal proceedings. It would diminish the power of the appropriate Minister to respond rapidly to changing circumstances, and would effectively give the new committee a power of veto to make rules, which could lead to delays for users who are required to engage with the justice system or for HMCTS in delivering the reforms. As the Minister is the one who is answerable to Parliament, ultimate decisions on policy making should be in their hands, not in the hands of the committee. I urge the hon. Lady not to press amendment 8, and I commend amendments 9 to 12 to the Committee.

[Yasmin Qureshi]

We think amendment 8 is important to ensure that there is no control by the Executive. If it is asked by the Minister to change the rules, the committee that has been charged with the task of preparing the procedures should be able to decline the request. That is important because it ensures that the committee is independent of the Executive, the Lord Chancellor and the Ministry of Justice. The committee should be free to do as it wishes. The Opposition therefore believe that the amendment is an important safeguard for the OPRC to be able to determine the rules as it wishes. It will give written notice to the appropriate Ministers, and I am sure it will explain its rationale. We believe that it should ultimately be a procedure committee’s decision whether to change a procedure because of a request from a Minister; the Minister should not be able to take control of that. It is a power grab by the Executive, and we have to avoid that as far as possible.

[Andy Slaughter]

I strongly disagree with Government amendment 9. It is very common practice for there to be dual control—the Lord Chancellor and the Lord Chief Justice—in relation to a variety of matters. It seems sensible and is an important safeguard. Nowhere should that be more self-evident than when one is dealing with the practical operations of the courts and ensuring, as the Bill does, that new systems coming into operation have that practical guidance. Having perhaps accepted in principle the arguments that were very well made in the other place, particularly by Lord Judge, I cannot see that the Government now wish to weaken that by simply having consultation rather than concurrence. As the Minister often says to our Front Benchers, I would urge him to think about this again and see what he is gaining or has to be worried about in these provisions. It seems an unnecessary bit of control-freakery by the Government.

[Paul Maynard]

The hon. Member for Hammersmith makes a valiant effort to ask why we should retain these clauses. For all the reasons I have set out, I beg to differ that this is not the place to attempt constitutional innovation. That is not how the other procedure committees function either.

The hon. Member for Cambridge makes a perfectly valid point, but this is not the place to achieve his objective. HMCTS, being in charge of a £1 billion court reform programme, is subject not just to the scrutiny of the Justice Committee, on which the hon. Member for Hammersmith sits, but that of the Public Accounts Committee and mine as Minister.

There are vast reams of evaluation, picking up what is and is not working. There are also vast reams on how to evaluate, to establish what is and is not working. There is no lack of scrutiny. The online procedure rule committee has had to look at what rules should govern the operation of the IT, but HMCTS has the ultimate responsibility of examining whether a particular online tool functions.

Question put, That the amendment be made.

--- Later in debate ---

Short title, commencement and extent

[Paul Maynard]

I beg to move amendment 13, in clause 15, page 12, line 11, leave out subsection (7).

This amendment removes the words inserted by the Lords to avoid questions of privilege.

Very briefly, the amendment removes the words added in the Lords that relate to a money resolution, in order to avoid questions of privilege.

Amendment 13 agreed to.

Clause 15, as amended, ordered to stand part of the Bill.

Schedules 1 and 2 agreed to.

[Paul Maynard]

On a point of order, Sir Gary. I will be as brief as I can, because I know that colleagues wish to yodel and ululate at the Queen Elizabeth II Centre imminently. May I thank you, Sir Gary, for chairing the Committee, and the officials who have got us through it so speedily?

I also thank my Bill team, who successfully worked through the weekend, delivering me acres of notes; my Parliamentary Private Secretary, my hon. Friend the Member for North Devon, for delivering one note that proved that it was worth his turning up as a member of the Committee; and my Whip, my hon. Friend the Member for Boston and Skegness, who guided me through every step of the way. I also thank all Members who made their individual contributions—even those who do not like Mozart and Bach.

[Yasmin Qureshi]

Further to that point of order, Sir Gary. I echo the Minister’s sentiments. I thank you, Sir Gary, for your chairmanship, and those in the Public Bill Office for all their help in tabling our amendments, and assisting us in preparation. I thank all Members who attended the Committee. Specifically, I thank Opposition Members who helpfully supported me and intervened at the right junctures. I welcome their support in considering the Bill. We now await the next part of proceedings.

Bill, as amended, to be reported.