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

Courts and Tribunals (Online Procedure) BillPage 10

(ii) proceedings in the Upper Tribunal,

(iii) the employment tribunals, or

(iv) the Employment Appeal Tribunal.

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

(5) Where regulations under this Act are subject to “negative resolution
procedure” the statutory instrument containing the regulations is subject to
annulment in pursuance of a resolution of either House of Parliament.

(6) 10Where regulations under this Act are subject to “affirmative resolution
procedure” the regulations must not be made unless a draft of the statutory
instrument containing them has been laid before Parliament and approved by
a resolution of each House of Parliament.

(7) Regulations under this Act may—

(a) 15make different provision for different purposes or areas;

(b) include consequential, supplementary or incidental provision;

(c) make transitional, transitory or saving provision.

(8) Subsection (7) does not apply to regulations under section 15.

14 Interpretation

(1) 20In this Act—

  • “applicable standard rules” means—

    (a)

    Civil Procedure Rules, in the case of civil proceedings;

    (b)

    Family Procedure Rules, in the case of family proceedings;

    (c)

    Tribunal Procedure Rules, in the case of proceedings in the
    25First-tier Tribunal or the Upper Tribunal;

    (d)

    employment tribunal procedure regulations, in the case of
    proceedings in the employment tribunals;

    (e)

    EAT procedure rules, in the case of proceedings in the
    Employment Appeal Tribunal;

  • 30“appropriate Minister” is to be read in accordance with subsections (2) to
    (6);

  • “civil proceedings” means proceedings about which Civil Procedure
    Rules may be made under the Civil Procedure Act 1997;

  • “EAT procedure rules” means rules made under section 30 of the
    35Employment Tribunals Act 1996 or otherwise with respect to
    proceedings before the Employment Appeal Tribunal;

  • “employment tribunal procedure regulations” means regulations made
    under section 7 of the Employment Tribunals Act 1996 or otherwise
    with respect to proceedings before employment tribunals;

  • 40“family proceedings” has the meaning given in section 75 of the Courts
    Act 2003;

  • “Online Procedure Rules” has the meaning given in section 1(2);

  • “specified kind” (in relation to proceedings) is to be read in accordance
    with section 2(1).

Courts and Tribunals (Online Procedure) BillPage 11

(2) Where this Act provides for a relevant function to be exercisable by the
appropriate Minister, the reference to the appropriate Minister is to be read in
accordance with subsections (4) to (6).

(3) For that purpose, each of the following is a “relevant function”—

(a) 5making regulations (see sections 2 and 3);

(b) allowing or disallowing Online Procedure Rules and giving reasons
(see section 8(3) to (5));

(c) directing which day Online Procedure Rules are to come into force (see
section 8(6)(a));

(d) 10giving the Online Procedure Rule Committee written notice that it is
expedient for Online Procedure Rules to include provision that would
achieve a specified purpose (see section 9(1));

(e) approving, or being consulted on, practice directions (see paragraph 11
of Schedule 1).

(4) 15The relevant function is exercisable by the Lord Chancellor, except if, or to the
extent that, subsection (5) or (6) provides otherwise.

(5) If, or to the extent that, the regulations, Online Procedure Rules or practice
directions in question relate to a kind of proceedings in the employment
tribunals, the relevant function is exercisable by the Secretary of State.

(6) 20If, or to the extent that, the regulations or Online Procedure Rules or practice
directions in question relate to a kind of proceedings—

(a) that are not themselves proceedings in the employment tribunals, but

(b) which relate to proceedings in the employment tribunals,

the relevant function is exercisable by the Lord Chancellor and the Secretary of
25State acting jointly.

(7) Where transfer provision in Online Procedure Rules applies to a specified kind
of proceedings, those proceedings are to be regarded for the purposes of
subsections (2) to (6) as being both—

(a) proceedings in the transferred forum, and

(b) 30proceedings in the usual forum.

(8) Transfer provision in Online Procedure Rules applies to a specified kind of
proceedings if (by virtue of section 1(11)) the Online Procedure Rules provide
that proceedings of that kind are to be taken in a court or tribunal (the
“transferred forum”) which is not the court or tribunal in which they would be
35taken if governed by the applicable standard rules (the “usual forum”).

15 Short title, commencement and extent

(1) This Act may be cited as the Courts and Tribunals (Online Procedure) Act 2019.

(2) Sections 10, 11, 13 and 14 and this section come into force on the day on which
this Act is passed.

(3) 40The other provisions of this Act come into force on such day as the Lord
Chancellor or Secretary of State may by regulations made by statutory
instrument appoint.

(4) Regulations under subsection (3) may—

(a) appoint different days for different purposes;

(b) 45appoint different days for different areas;

Courts and Tribunals (Online Procedure) BillPage 12

(c) make transitional, transitory or saving provision.

(5) This Act extends—

(a) to England and Wales, Scotland and Northern Ireland in its application
to the First-tier Tribunal and the Upper Tribunal;

(b) 5to England and Wales and Scotland in its application to employment
tribunals and the Employment Appeal Tribunal;

(c) otherwise, to England and Wales only;

but that is subject to subsection (6).

(6) Any amendment, repeal or revocation made by this Act has the same extent as
10the enactment amended, repealed or revoked.

(7) Nothing in this Act shall impose any charge on the people or on public
funds, or vary the amount or incidence of or otherwise alter any such charge
in any manner, or affect the assessment, levying, administration or
application of any money raised by any such charge.

Courts and Tribunals (Online Procedure) BillPage 13

SCHEDULES

Section 1

SCHEDULE 1 Practice directions

Part 1 5Civil proceedings and family proceedings

Power to give practice directions

1 Practice directions may be given in relation to—

(a) civil proceedings which are governed by Online Procedure Rules;

(b) family proceedings which are governed by Online Procedure Rules.

10Contents of practice directions

2 (1) Practice directions under paragraph 1 that relate to civil proceedings may
provide for any matter which may be provided for in Online Procedure
Rules relating to such proceedings.

(2) Practice directions under paragraph 1 that relate to family proceedings may
15provide for any matter which may be provided for in Online Procedure
Rules relating to such proceedings.

Giving practice directions

3 (1) Practice directions under paragraph 1 may be given in accordance with the
CRA 2005 procedure.

(2) 20Practice directions under paragraph 1 may be given otherwise than in
accordance with the CRA 2005 procedure; but, in this case, the directions
may not be given without the approval of—

(a) the Lord Chancellor, and

(b) the Lord Chief Justice.

(3) 25Sub-paragraph (2)(a) does not require the approval of the Lord Chancellor
for practice directions to the extent that they consist of guidance about—

(a) the application or interpretation of the law;

(b) the making of judicial decisions.

(4) Sub-paragraph (2)(a) does not require the approval of the Lord Chancellor
30for practice directions to the extent that they consist of criteria for
determining which judges may be allocated to hear particular categories of
case; but the directions may, to that extent, be given only after consultation
with the Lord Chancellor (as well as with the approval of the Lord Chief
Justice required by sub-paragraph (2)(b)).

Courts and Tribunals (Online Procedure) BillPage 14

(5) A reference in this paragraph to directions being given in accordance with
the CRA 2005 procedure is a reference to the directions being given in
accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005.

Particular provision in practice directions

4 5The power under paragraph 1 to give practice directions includes power—

(a) to vary or revoke directions given under paragraph 1 by any person;

(b) to give directions containing different provision for different cases
(including different areas);

(c) to give directions containing provision for a specific court, for
10specific proceedings or for a specific jurisdiction.

Part 2 Proceedings in the First-tier Tribunal and Upper Tribunal

Power to give practice directions

5 Practice directions may be given in relation to—

(a) 15proceedings in the First-tier Tribunal which are governed by Online
Procedure Rules;

(b) proceedings in the Upper Tribunal which are governed by Online
Procedure Rules.

Contents of practice directions

6 (1) 20Practice directions under paragraph 5 that relate to proceedings in the First-
tier Tribunal may provide for any matter which may be provided for in
Online Procedure Rules relating to such proceedings.

(2) Practice directions under paragraph 5 that relate to proceedings in the
Upper Tribunal may provide for any matter which may be provided for in
25Online Procedure Rules relating to such proceedings.

Giving practice directions

7 (1) The Senior President of Tribunals may give practice directions under
paragraph 5 in relation to any proceedings.

(2) The Senior President may not give practice directions without the approval
30of the Lord Chancellor.

(3) A Chamber President may give practice directions under paragraph 5 in
relation to proceedings in the Chamber of the First-tier Tribunal or Upper
Tribunal over which he or she presides.

(4) A Chamber President may not give practice directions without the approval
35of—

(a) the Lord Chancellor, and

(b) the Senior President of Tribunals.

(5) Sub-paragraph (2) or (4)(a) does not require the approval of the Lord
Chancellor for practice directions to the extent that they consist of guidance
40about—

Courts and Tribunals (Online Procedure) BillPage 15

(a) the application or interpretation of the law;

(b) the making of decisions by members of the First-tier Tribunal or
Upper Tribunal.

(6) Sub-paragraph (2) or (4)(a) does not require the approval of the Lord
5Chancellor for practice directions to the extent that they consist of criteria for
determining which members of the First-tier Tribunal or Upper Tribunal
may be chosen to hear particular categories of case; but, in the case of
directions given by a Chamber President, the directions may, to that extent,
be given only after consultation with the Lord Chancellor (as well as with the
10approval of the Senior President of Tribunals required by sub-paragraph
(4)(b)).

Particular provision in practice directions

8 The power under paragraph 5 to give practice directions includes power—

(a) to vary or revoke directions given under paragraph 5 by any person;

(b) 15to give directions containing different provision for different cases
(including different areas);

(c) to give directions containing provision for a specific court, for
specific proceedings or for a specific jurisdiction.

Part 3 20Proceedings in employment tribunals and the Employment Appeal Tribunal

Power to give practice directions

9 Practice directions may be given in relation to—

(a) proceedings in employment tribunals which are governed by Online
Procedure Rules;

(b) 25proceedings in the Employment Appeal Tribunal which are
governed by Online Procedure Rules.

Contents of practice directions

10 (1) Practice directions under paragraph 9 that relate to proceedings in
employment tribunals may provide for any matter which may be provided
30for in Online Procedure Rules relating to such proceedings.

(2) Practice directions under paragraph 9 that relate to proceedings in the
Employment Appeal Tribunal may provide for any matter which may be
provided for in Online Procedure Rules relating to such proceedings.

Giving practice directions

11 (1) 35The Senior President of Tribunals may give practice directions under
paragraph 9 in relation to any proceedings.

(2) The Senior President may not give practice directions without the approval
of the appropriate Minister.

(3) The President of the Employment Appeal Tribunal may give practice
40directions under paragraph 9 in relation to proceedings in that Tribunal.

Courts and Tribunals (Online Procedure) BillPage 16

(4) A territorial president may give practice directions under paragraph 9 in
relation to proceedings in the employment tribunals for which he or she is
responsible.

(5) The President of the Employment Appeal Tribunal or a territorial president
5may not give practice directions without the approval of—

(a) the appropriate Minister, and

(b) the Senior President of Tribunals.

(6) Sub-paragraph (2) or (5)(a) does not require the approval of the appropriate
Minister for practice directions to the extent that they consist of guidance
10about—

(a) the application or interpretation of the law;

(b) the making of decisions by members of the employment tribunals or
the Employment Appeal Tribunal.

(7) Sub-paragraph (2) or (5)(a) does not require the approval of the appropriate
15Minister for practice directions to the extent that they consist of criteria for
determining which members of the employment tribunals or the
Employment Appeal Tribunal may be chosen to hear particular categories of
case; but the directions may, to that extent, be given only after consultation
with the appropriate Minister (as well as with the approval of the Senior
20President of Tribunals required by sub-paragraph (5)(b)).

(8) In this paragraph “territorial president” means a person appointed in
accordance with regulations under section 1(1) of the Employment
Tribunals Act 1996 as—

(a) President of Employment Tribunals (England and Wales), or

(b) 25President of Employment Tribunals (Scotland).

Particular provision in practice directions

12 The power under paragraph 9 to give practice directions includes power—

(a) to vary or revoke directions given under paragraph 9 by any person;

(b) to give directions containing different provision for different cases
30(including different areas);

(c) to give directions containing provision for a specific court, for
specific proceedings or for a specific jurisdiction.

Practice directions relating to mediation

13 (1) A person exercising the power to give practice directions must, when
35making provision in relation to mediation, have regard to the following
principles—

(a) mediation of matters in dispute between parties to proceedings is to
take place only by agreement between those parties;

(b) where parties to proceedings fail to mediate, or where mediation
40between parties to proceedings fails to resolve disputed matters, the
failure is not to affect the outcome of the proceedings.

(2) Practice directions may provide for members to act as mediators in relation
to disputed matters in a case that is the subject of proceedings.

(3) The provision that may be made by virtue of sub-paragraph (2) includes
45provision for a member to act as a mediator in relation to disputed matters

Courts and Tribunals (Online Procedure) BillPage 17

in a case even though the member has been chosen to decide matters in the
case.

(4) Before making a practice direction that makes provision in relation to
mediation, the person making the direction must consult ACAS.

(5) 5Once a member has begun to act in accordance with directions under this
Part of this Schedule as mediator in relation to a disputed matter in a case
that is the subject of proceedings, the member may decide matters in the case
only with the consent of the parties.

(6) Staff appointed under section 40(1) of the Tribunals, Courts and
10Enforcement Act 2007 (staff for employment and other tribunals) may,
subject to their terms of appointment, act in accordance with directions
under this Part of this Schedule as mediators in relation to disputed matters
in a case that is the subject of proceedings.

(7) In this section—

  • 15ACAS” means the Advisory, Conciliation and Arbitration Service;

  • “member” means a member of a panel of members of employment
    tribunals (whether or not a panel of Employment Judges);

  • “practice direction” means a direction under paragraph 9;

    “proceedings” means proceedings before an employment tribunal.

Section 12

20SCHEDULE 2 Amendments relating to the online procedure in courts and tribunals

Employment Tribunals Act 1996

1 (1) The Employment Tribunals Act 1996 is amended as follows.

(2) In section 7 (employment tribunal procedure regulations), after subsection
25(6) insert—

(7) Employment tribunal procedure regulations must be framed so that
the practice and procedure to be followed in proceedings of a
specified kind are not governed by those regulations except to the
extent that the practice and procedure are not, or have ceased to be,
30governed by Online Procedure Rules.

(8) In this section—

  • “Online Procedure Rules” means rules made under section 1 of
    the Courts and Tribunals (Online Procedure) Act 2019;

  • “specified kind” means a kind of proceedings specified for the
    35purposes of section 1 of the Courts and Tribunals (Online
    Procedure) Act 2019.”

(3) In section 7A (practice directions), after subsection (2E) insert—

(2F) Practice directions under this section do not apply to proceedings
which are governed by Online Procedure Rules.

(2G) 40In this section “Online Procedure Rules” means rules made under
section 1 of the Courts and Tribunals (Online Procedure) Act 2019.”

Courts and Tribunals (Online Procedure) BillPage 18

(4) In section 7B (mediation), after subsection (5) insert—

(5A) Practice directions made by virtue of this section do not apply to
proceedings which are governed by Online Procedure Rules.

(5B) In this section “Online Procedure Rules” means rules made under
5section 1 of the Courts and Tribunals (Online Procedure) Act 2019.”

(5) In section 29A (practice directions), after subsection (10) insert—

(11) Practice directions made under this section do not apply to
proceedings which are governed by Online Procedure Rules.

(12) In this section “Online Procedure Rules” means rules made under
10section 1 of the Courts and Tribunals (Online Procedure) Act 2019.”

(6) In section 30 (Appeal Tribunal procedure rules), after subsection (2C)
insert—

(2D) Appeal Tribunal procedure rules must be framed so that the practice
and procedure to be followed in proceedings of a specified kind are
15not governed by those rules except to the extent that the practice and
procedure are not, or have ceased to be, governed by Online
Procedure Rules.

(2E) In this section—

  • “Online Procedure Rules” means rules made under section 1 of
    20the Courts and Tribunals (Online Procedure) Act 2019;

  • “specified kind” means a kind of proceedings specified for the
    purposes of section 1 of the Courts and Tribunals (Online
    Procedure) Act 2019.”

Civil Procedure Act 1997

2 (1) 25The Civil Procedure Act 1997 is amended as follows.

(2) In section 1 (Civil Procedure Rules), after subsection (3) insert—

(4) Civil Procedure Rules must be framed so that the practice and
procedure to be followed in proceedings of a specified kind are not
governed by those Rules except to the extent that the practice and
30procedure are not, or have ceased to be, governed by Online
Procedure Rules.

(5) In this section—

  • “Online Procedure Rules” means rules made under section 1 of
    the Courts and Tribunals (Online Procedure) Act 2019;

  • 35“specified kind” means a kind of proceedings specified for the
    purposes of section 1 of the Courts and Tribunals (Online
    Procedure) Act 2019.”

(3) In section 5 (practice directions), after subsection (6) insert—

(7) Practice directions under this section do not apply to proceedings
40which are governed by Online Procedure Rules.

(8) In this section “Online Procedure Rules” means rules made under
section 1 of the Courts and Tribunals (Online Procedure) Act 2019.”

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Courts Act 2003

3 (1) The Courts Act 2003 is amended as follows.

(2) In section 75 (Family Procedure Rules), after subsection (5) insert—

(6) Family Procedure Rules must be framed so that the practice and
5procedure to be followed in proceedings of a specified kind are not
governed by those Rules except to the extent that the practice and
procedure are not, or have ceased to be, governed by Online
Procedure Rules.

(7) In this section—

  • 10“Online Procedure Rules” means rules made under section 1 of
    the Courts and Tribunals (Online Procedure) Act 2019;

  • “specified kind” means a kind of proceedings specified for the
    purposes of section 1 of the Courts and Tribunals (Online
    Procedure) Act 2019.”

(3) 15In section 81 (practice directions relating to family proceedings), at the end
insert—

(6) Practice directions under this section do not apply to proceedings
which are governed by Online Procedure Rules.

(7) In this section “Online Procedure Rules” means rules made under
20section 1 of the Courts and Tribunals (Online Procedure) Act 2019.”

Tribunals, Courts and Enforcement Act 2007

4 (1) The Tribunals, Courts and Enforcement Act 2007 is amended as follows.

(2) In section 22 (Tribunal Procedure Rules), after subsection (5) insert—

(6) Tribunal Procedure Rules must be framed so that the practice and
25procedure to be followed in proceedings of a specified kind are not
governed by those Rules except to the extent that the practice and
procedure are not, or have ceased to be, governed by Online
Procedure Rules.

(7) In this section—

  • 30“Online Procedure Rules” means rules made under section 1 of
    the Courts and Tribunals (Online Procedure) Act 2019;

  • “specified kind” means a kind of proceedings specified for the
    purposes of section 1 of the Courts and Tribunals (Online
    Procedure) Act 2019.”

(3) 35In section 23 (practice directions), after subsection (7) insert—

(8) Practice directions under this section do not apply to proceedings
which are governed by Online Procedure Rules.

(9) In this section “Online Procedure Rules” means rules made under
section 1 of the Courts and Tribunals (Online Procedure) Act 2019.”