Courts and Tribunals (Online Procedure) Bill (HC Bill 416)

A

BILL

TO

Provide for online procedures in civil and family courts in England and Wales,
in the First-tier Tribunal and Upper Tribunal and in employment tribunals
and the Employment Appeal Tribunal.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

The online procedure

1 Rules for an online procedure in courts and tribunals

(1) For proceedings of a specified kind, there are to be procedural rules which—

(a) must require that kind of proceedings, or one or more aspects of that
5kind of proceedings, to be initiated by electronic means;

(b) may authorise or require that kind of proceedings, or one or more
aspects of that kind of proceedings, to be conducted, progressed or
disposed of by electronic means;

(c) may authorise or require the parties to that kind of proceedings (and
10their representatives) to participate in hearings, including the hearing
at which the proceedings are disposed of, by electronic means;

and are otherwise to govern the practice and procedure to be followed in that
kind of proceedings.

(2) The rules are to be called Online Procedure Rules.

(3) 15Power to make Online Procedure Rules is to be exercised with a view to
securing—

(a) that practice and procedure under the rules are accessible and fair,

(b) that the rules are both simple and simply expressed,

(c) that disputes may be resolved quickly and efficiently under the rules,
20and

(d) that the rules support the use of innovative methods of resolving
disputes.

Courts and Tribunals (Online Procedure) BillPage 2

(4) For the purposes of subsection (3)(a), regard must be had to the needs of those
who require support in order to initiate, conduct, progress or participate in
proceedings by electronic means, in accordance with Online Procedure Rules.

(5) Different Online Procedure Rules may be made for different kinds of
5proceedings.

(6) Where Online Procedure Rules require a person to initiate, conduct, progress
or participate in proceedings by electronic means, Online Procedure Rules
must also provide that a person may instead choose to do so by non-electronic
means.

(7) 10The provision that may be made under subsection (1)(b) includes provision
authorising or requiring—

(a) any question arising in proceedings, or

(b) the final determination of proceedings,

to be disposed of by electronic means as a result of steps which the parties take,
15or fail to take, by electronic means.

(8) Online Procedure Rules may provide—

(a) for circumstances in which proceedings of a specified kind—

(i) are not to be governed by the rules, or

(ii) are to cease to be governed by the rules, and

(b) 20for the proceedings to be governed by Civil Procedure Rules, Family
Procedure Rules, Tribunal Procedure Rules, employment tribunal
procedure regulations or EAT procedure rules instead.

(9) Online Procedure Rules may provide—

(a) for circumstances in which excluded proceedings—

(i) 25are to be governed by Online Procedure Rules, or

(ii) are to be governed again by Online Procedure Rules, and

(b) for the proceedings to cease to be governed by Civil Procedure Rules,
Family Procedure Rules, Tribunal Procedure Rules, employment
tribunal procedure regulations or EAT procedure rules.

(10) 30For the purposes of subsection (9)(a), proceedings are “excluded” if the
proceedings are not governed, or cease to be governed, by Online Procedure
Rules under provision of the kind referred to in subsection (8)(a).

(11) Online Procedure Rules may provide—

(a) for proceedings of a specified kind to be taken in a court or tribunal
35which is not the court or tribunal in which they would be taken if
governed by the applicable standard rules;

(b) for different proceedings (whether of the same specified kind or
different specified kinds) to be taken together in a particular court or
tribunal (which need not be the court or tribunal in which any or all of
40those proceedings would be taken if governed by the applicable
standard rules).

(12) This section is subject to section 3.

(13) Schedule 1 (practice directions) has effect.

(14) In this section “procedural rules” means—

(a) 45rules of court, in the case of court proceedings;

Courts and Tribunals (Online Procedure) BillPage 3

(b) Tribunal Procedure Rules, in the case of proceedings in the First-tier
Tribunal or Upper Tribunal;

(c) rules which are to be treated as if they were employment tribunal
procedure regulations, in the case of proceedings in the employment
5tribunals;

(d) EAT procedure rules, in the case of proceedings in the Employment
Appeal Tribunals.

2 “Specified kinds” of proceedings

(1) Proceedings are of a “specified kind” for the purposes of section 1 if they are a
10kind of—

(a) civil proceedings,

(b) family proceedings,

(c) proceedings in the First-tier Tribunal,

(d) proceedings in the Upper Tribunal,

(e) 15proceedings in employment tribunals, or

(f) proceedings in the Employment Appeal Tribunal,

specified in regulations made by the appropriate Minister.

(2) The factors by reference to which a kind of proceedings may be specified in
regulations under subsection (1) include—

(a) 20the legal basis of the proceedings;

(b) the factual basis of the proceedings;

(c) the value of the matter in issue in the proceedings;

(d) the court or tribunal in which the proceedings are to be brought or
continued.

(3) 25Regulations under this section are subject to the concurrence requirement.

(4) Regulations under this section are subject to affirmative resolution procedure.

3 Provision supplementing section 1

(1) The appropriate Minister may, by regulations, provide for circumstances in
which the person initiating proceedings, or an aspect of proceedings, may (if
30the proceedings are of a specified kind) choose whether the proceedings or that
aspect are to be initiated in accordance with Online Procedure Rules or the
applicable standard rules.

(2) The appropriate Minister may, by regulations, provide—

(a) for circumstances in which proceedings of a specified kind—

(i) 35are not to be governed by Online Procedure Rules, or

(ii) are to cease to be governed by Online Procedure Rules, and

(b) for the proceedings to be governed by Civil Procedure Rules, Family
Procedure Rules, Tribunal Procedure Rules, employment tribunal
procedure regulations or EAT procedure rules instead;

(3) 40The appropriate Minister may, by regulations, provide—

(a) for circumstances in which excluded proceedings—

(i) are to be governed by Online Procedure Rules, or

(ii) are to be governed again by Online Procedure Rules, and

Courts and Tribunals (Online Procedure) BillPage 4

(b) for the proceedings to cease to be governed by Civil Procedure Rules,
Family Procedure Rules, Tribunal Procedure Rules, employment
tribunal procedure regulations or EAT procedure rules.

(4) For the purposes of subsection (3)(a) proceedings are “excluded” if the
5proceedings are not governed, or cease to be governed, by Online Procedure
Rules under—

(a) Online Procedure Rules of the kind referred to in section 1(8)(a), or

(b) regulations under subsection (1) or (2)(a).

(5) Regulations under this section are subject to the concurrence requirement.

(6) 10Regulations under this section are subject to affirmative resolution procedure.

4 Duty to make support available for digitally excluded people

The Lord Chancellor must arrange for the provision of such support as the
Lord Chancellor considers to be appropriate and proportionate, for the
purpose of assisting persons to initiate, conduct, progress or participate in
15proceedings by electronic means, in accordance with Online Procedure Rules.

5 The Online Procedure Rule Committee

(1) Online Procedure Rules are to be made by a committee known as the Online
Procedure Rule Committee.

(2) The Committee is to consist of—

(a) 20one person who is a judge of the Senior Courts of England and Wales,
appointed to the Committee by the Lord Chief Justice;

(b) two persons, each of whom is either—

(i) a judge of the Senior Courts of England and Wales, a Circuit
Judge or a district judge, or

(ii) 25a judge of the First-tier Tribunal, a judge of the Upper Tribunal,
an Employment Judge or a judge of the Employment Appeal
Tribunal appointed by the Lord Chief Justice,

appointed to the Committee by the Lord Chief Justice;

(c) one person who is either a barrister in England and Wales, a solicitor of
30the Senior Courts of England and Wales or a legal executive, appointed
to the Committee by the Lord Chancellor; and

(d) two other persons appointed to the Committee by the Lord
Chancellor—

(i) one of whom must have experience in and knowledge of the lay
35advice sector, and

(ii) one of whom must have IT experience and knowledge relating
to end-users’ experience of internet portals.

(3) Before appointing a person under subsection (2)(a) the Lord Chief Justice must
consult—

(a) 40the Lord Chancellor, and

(b) the Senior President of Tribunals.

(4) Before appointing a person under subsection (2)(b) the Lord Chief Justice
must—

(a) consult the Lord Chancellor and the Secretary of State, and

Courts and Tribunals (Online Procedure) BillPage 5

(b) obtain the agreement of the Senior President of Tribunals.

(5) Before appointing a person under subsection (2)(c) the Lord Chancellor must
consult—

(a) the Lord Chief Justice,

(b) 5the Senior President of Tribunals, and

(c) the relevant authorised body.

(6) Before appointing a person under subsection (2)(d) the Lord Chancellor must
consult—

(a) the Lord Chief Justice, and

(b) 10the Senior President of Tribunals.

(7) The Lord Chief Justice may appoint one of the persons appointed under
subsection (2)(a) or (b) to be the chair of the Online Procedure Rule Committee.

(8) The Lord Chief Justice may nominate a judicial office holder (as defined in
section 109(4) of the Constitutional Reform Act 2005) to exercise any function
15of the Lord Chief Justice under this section.

(9) The Lord Chancellor may reimburse the members of the Online Procedure
Rule Committee their travelling and out-of-pocket expenses.

(10) In this section—

  • “IT experience and knowledge” means experience in, and knowledge of,
    20information technology;

  • “legal executive” means a person authorised by the Chartered Institute of
    Legal Executives to practise as a member of the profession of legal
    executives;

  • “relevant authorised body”, in relation to an appointment under
    25subsection (2)(c), means—

    (a)

    the General Council of the Bar of England and Wales, if the
    appointment is of a barrister;

    (b)

    the Law Society of England and Wales, if the appointment is of
    a solicitor;

    (c)

    30the Chartered Institute of Legal Executives, if the appointment
    is of a legal executive.

6 Powers of the Online Procedure Rule Committee

(1) For making Online Procedure Rules for proceedings of a kind set out in an
entry in the first column of the following table, the Online Procedure Rule
35Committee has the powers set out in the corresponding entry in the second
column—

Courts and Tribunals (Online Procedure) BillPage 6

For making Online
Procedure Rules for
proceedings of this kind...
...the Online Procedure Rule Committee has these
powers...
civil proceedings the same powers that the Civil Procedure Rule
5Committee has under the Civil Procedure Act
1997 or otherwise for making Civil Procedure
Rules — except the powers under paragraphs 5
and 6 of Schedule 1 to that Act (powers to apply
other rules & refer to practice directions: but see
10subsections (2) to (6) below)
family proceedings the same powers that the Family Procedure Rule
Committee has under Part 7 of the Courts Act
2003 or otherwise for making Family Procedure
Rules — except the powers under section 76(4) to
15(8) of that Act (powers to apply other rules & refer
to practice directions: but see subsections (2) to (6)
below)
proceedings in the
First-tier Tribunal
the same powers that the Tribunal Procedure
Committee has under Part 1 of the Tribunals,
20Courts and Enforcement Act 2007 or otherwise for
making Tribunal Procedure Rules for proceedings
in the First-tier Tribunal — except the power
under paragraph 17 of Schedule 5 to that Act
(power to refer to practice directions: but see
25subsection (6) below)
proceedings in the
Upper Tribunal
the same powers that the Tribunal Procedure
Committee has under Part 1 of the Tribunals,
Courts and Enforcement Act 2007 or otherwise for
making Tribunal Procedure Rules for proceedings
30in the Upper Tribunal — except the power under
paragraph 17 of Schedule 5 to that Act (power to
refer to practice directions: but see subsection (6)
below)
proceedings in the
employment tribunals
the same powers that the Secretary of State has
35under section 7 of the Employment Tribunals Act
1996 or otherwise for making provision with
respect to proceedings before employment
tribunals — except the power under section 7A(2)
of that Act (power to refer to practice directions:
40but see subsection (6) below)
proceedings in the
Employment Appeal
Tribunal
the same powers that the Lord Chancellor has
under section 30 of the Employment Tribunals
Act 1996 or otherwise for making rules with
respect to proceedings before the Employment
45Appeal Tribunal

(2) Online Procedure Rules may apply any other procedural rules.

(3) The other procedural rules may be applied to proceedings of a particular kind
even if the rules would not normally be applicable to that kind of proceedings.

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(4) The other procedural rules may be applied—

(a) to any extent;

(b) with or without modifications;

(c) as amended from time to time.

(5) 5In subsections (2) to (4) “procedural rules” means—

(a) Civil Procedure Rules,

(b) Family Procedure Rules,

(c) Tribunal Procedure Rules,

(d) employment tribunal procedure regulations,

(e) 10EAT procedure rules, and

(f) other rules of court (including any other provision governing the
practice and procedure of a court which is made by or under any
enactment).

(6) Online Procedure Rules may, instead of providing for any matter, refer to
15provision made or to be made about that matter by directions under Schedule
1.

7 Power to change certain requirements relating to the Committee

(1) The Lord Chancellor may by regulations—

(a) amend section 5(2) to (7), and

(b) 20make consequential amendments in any other provision of section 5 or
in subsection (2) or (3) of this section.

(2) The Lord Chancellor may make regulations under this section only with the
concurrence of—

(a) the Secretary of State,

(b) 25the Lord Chief Justice, and

(c) the Senior President of Tribunals.

(3) Before making regulations under this section the Lord Chancellor must consult
the following persons—

(a) the Head of Civil Justice;

(b) 30the Deputy Head of Civil Justice (if there is one);

(c) the President of the Family Division.

(4) The Lord Chief Justice may nominate a judicial office holder (as defined in
section 109(4) of the Constitutional Reform Act 2005) to exercise any function
of the Lord Chief Justice under this section.

(5) 35Regulations under this section are subject to negative resolution procedure.

8 Making Online Procedure Rules

(1) Before making or amending Online Procedure Rules, the Online Procedure
Rule Committee must—

(a) consult such persons as they consider appropriate, and

(b) 40hold a meeting (unless it is inexpedient to do so).

(2) Rules made by the Online Procedure Rule Committee must be—

(a) signed by—

Courts and Tribunals (Online Procedure) BillPage 8

(i) at least half of the members of the Committee, where one of the
signatories is the chair, or

(ii) a majority of the members of the Committee, in any other case,
and

(b) 5submitted to the Lord Chancellor.

(3) The appropriate Minister may allow or disallow Online Procedure Rules made
by the Committee.

(4) In deciding whether to allow or disallow rules, the appropriate Minister must
have regard to the needs of those who require support in order to initiate,
10conduct, progress or participate in proceedings by electronic means, in
accordance with Online Procedure Rules.

(5) If the appropriate Minister disallows rules, the appropriate Minister must give
the Committee written reasons for doing so.

(6) Rules made by the Committee and allowed by the appropriate Minister—

(a) 15come into force on such day as the appropriate Minister directs, and

(b) are to be contained in a statutory instrument to which the Statutory
Instruments Act 1946 applies as if the instrument contained rules made
by a Minister of the Crown.

(7) A statutory instrument containing Online Procedure Rules is subject to
20annulment in pursuance of a resolution of either House of Parliament.

9 Power to require rules to be made

(1) This section applies if the appropriate Minister gives the Online Procedure
Rule Committee written notice that the appropriate Minister thinks it is
expedient for Online Procedure Rules to include provision that would achieve
25a purpose specified in the notice.

(2) The Committee must make such Online Procedure Rules as it considers
necessary to achieve the specified purpose.

(3) Those rules must be—

(a) made within a reasonable period after the appropriate Minister gives
30notice to the Committee;

(b) made in accordance with section 8.

(4) The appropriate Minister may only give written notice under this section with
the concurrence of the Lord Chief Justice.

10 Power to make amendments in relation to Online Procedure Rules

(1) 35The Lord Chancellor may, by regulations, amend, repeal or revoke—

(a) any Act, or

(b) any provision made under an Act,

to the extent the Lord Chancellor considers necessary or desirable in
consequence of Online Procedure Rules.

(2) 40The Lord Chancellor may by regulations amend, repeal or revoke—

(a) any Act passed before this Act or in the same Session, or

(b) any provision made under an Act before the regulations come into
force,

Courts and Tribunals (Online Procedure) BillPage 9

to the extent the Lord Chancellor considers necessary or desirable in order to
facilitate the making of Online Procedure Rules.

(3) Regulations may only be made under this section with the concurrence of the
Lord Chief Justice.

(4) 5The Lord Chancellor must consult the Senior President of Tribunals before
making regulations under this section.

(5) The Lord Chief Justice may nominate a judicial office holder (as defined in
section 109(4) of the Constitutional Reform Act 2005) to exercise the function
under subsection (3).

(6) 10Regulations under this section are subject to affirmative resolution procedure.

Final provisions

11 Consequential and transitional provision etc

(1) The Secretary of State or Lord Chancellor may, by regulations, make
consequential, supplementary, incidental, transitional, transitory or saving
15provision in relation to any provision of this Act.

(2) The regulations may, in particular, amend, repeal or revoke—

(a) any provision of an Act passed before this Act or in the same Session, or

(b) any provision made under an Act before the regulations come into
force.

(3) 20A statutory instrument containing regulations under this section that amend or
repeal any provision of an Act (whether alone or with other provision) are
subject to affirmative resolution procedure.

(4) Any other statutory instrument containing regulations under this section is
subject to negative resolution procedure.

12 25Amendments of other legislation

Schedule 2 (amendments relating to the online procedure in courts and
tribunals) has effect.

13 Regulations

(1) Regulations under this Act are to be made by statutory instrument.

(2) 30For provision about the appropriate Minister see section 14(2) to (6).

(3) Where regulations under this Act are subject to “the concurrence requirement”,
the appropriate Minister making the regulations—

(a) must obtain the concurrence of the Lord Chief Justice before making
the regulations if, or to the extent that, the regulations relate to—

(i) 35civil proceedings, or

(ii) family proceedings;

(b) must obtain the concurrence of the Senior President of Tribunals before
making the regulations if, or to the extent that, the regulations relate
to—

(i) 40proceedings in the First-tier Tribunal