Judicial Review and Courts Act 2022

; and (b) the person remitted or sent had attained the age of 18 before the start of those proceedings.

• (7) After subsection (4) insert—

(4A) For the purposes of this section a person is to be taken to be the age which that person appears to the court to be after considering any available evidence.

Sentencing powers of magistrates’ courts

Involvement of parent or guardian in proceedings conducted in writing

13

• (1) In section 224 of the Sentencing Code (general limit on magistrates’ court’s power to impose custodial sentence)—

• (a) in subsection (1), for the words after paragraph (b) substitute “for a term exceeding the applicable limit in respect of any one offence”;

• (b) after subsection (1) insert—

(1A) The applicable limit is— (a) 6 months in the case of a summary offence, or (b) 12 months in the case of an offence triable either way.”;

• (c) in subsection (2), for the words from “more than” to the end substitute “a term exceeding the applicable limit”.

• (2) In Part 8 of Schedule 23 to the Sentencing Act 2020 (powers to amend the Sentencing Code in relation to custodial sentences), before paragraph 15 insert—

(14A) (1) The Secretary of State may by regulations amend section 224(1A)(b) (general limit on custodial sentence for either-way offence in magistrates’ court)— (a) if for the time being it refers to 12 months, to substitute a reference to 6 months for the reference to 12 months, or (b) if for the time being it refers to 6 months, to substitute a reference to 12 months for the reference to 6 months. (2) An amendment under sub-paragraph (1) has effect only in relation to an offence for which a person is convicted on or after the day on which the amendment comes into force. (3) Regulations under sub-paragraph (1) are subject to the negative resolution procedure.”

• (3) In Schedule 1 to the Interpretation Act 1978, after the entry requiring the definitions relating to offences to be construed without regard to section 22 of the Magistrates’ Courts Act 1980 insert—

In relation to a term of imprisonment in respect of an offence triable either way under the law of England and Wales, “general limit in a magistrates’ court” means the limit laid down in respect of the offence by section 224(1) of the Sentencing Code (as it has effect from time to time).

• (4) In section 32(1) of the Magistrates’ Courts Act 1980 (maximum penalty on summary conviction for certain either-way offences), for “12 months” substitute “the general limit in a magistrates’ court”.

• (5) In section 282(3) of the Criminal Justice Act 2003 (maximum custodial term on summary conviction for certain either-way offences)—

• (a) omit “maximum”;

• (b) for “12 months” substitute “a term not exceeding the general limit in a magistrates’ court”.

• (6) Subsection (7) applies to relevant legislation—

• (a) which provides for a maximum term of imprisonment of 12 months on summary conviction for an offence triable either way, and

• (b) in relation to which section 282(3) of the Criminal Justice Act 2003 does not apply.

• (7) Relevant legislation to which this subsection applies is to be read as providing for a term of imprisonment not exceeding the general limit in a magistrates’ court (in place of the term referred to in subsection (6)(a)).

• (8) Subsection (9) applies to relevant primary legislation that confers a power (in whatever terms) to make subordinate legislation providing for a maximum term of imprisonment, on summary conviction for an offence triable either way, of—

• (a) 6 months, in the case of an enactment contained in an Act passed on or before 20 November 2003, or

• (b) 12 months, the case of any other relevant primary legislation.

• (9) Relevant primary legislation to which this subsection applies is to be read as conferring a power to provide for a term of imprisonment not exceeding the general limit in a magistrates’ court (in place of the term referred to in subsection (8)(a) or (b)).

• (10) The Secretary of State may by regulations—

• (a) amend relevant legislation in relation to which section 282(3) of the Criminal Justice Act 2003 applies, to spell out the effect of that provision (as amended by subsection (5));

• (b) amend relevant legislation to which subsection (7) applies, to spell out the effect of that subsection;

• (c) amend relevant primary legislation to which subsection (9) applies, to spell out the effect of that subsection;

• (d) amend relevant legislation in consequence of an amendment under any of the preceding paragraphs.

• (11) In this section—

• “relevant legislation” means an enactment contained in—an Act passed before or in the same Session as this Act,an Act or Measure of Senedd Cymru enacted before the passing of this Act,subordinate legislation made before the passing of this Act, or assimilated direct legislation, not falling within the preceding paragraphs, made before the passing of this Act;

• “relevant primary legislation” means an enactment falling within paragraph (a) or (b) of the definition of “relevant legislation”;

• “subordinate legislation” means subordinate legislation within the meaning of the Interpretation Act 1978 (see section 21(1) of that Act) or any equivalent instrument made or to be made under an Act or Measure of Senedd Cymru.

Miscellaneous and consequential provision

Involvement of parent or guardian in proceedings conducted in writing

14

• (1) Section 34A of the Children and Young Persons Act 1933 (attendance at court of parent or guardian) is amended as follows.

• (2) In the heading, after “court” insert “or other involvement”.

• (3) After subsection (1) insert—

(1A) Where a child or young person (C) is charged with an offence, the court— (a) may in any case; and (b) must in a case where C is under the age of sixteen years, exercise the functions conferred by subsections (1B) and (1C) (insofar as they are applicable to the proceedings) unless and to the extent that the court is satisfied that it would be unreasonable to do so, having regard to the circumstances of the case. (1B) Where any stage of the proceedings is conducted in writing, the court may or (as the case may be) must— (a) ascertain whether a person who is a parent or guardian of C is aware that the written proceedings are taking place, and (b) if it appears to the court that no parent or guardian is aware of that, provide information about the written proceedings to at least one such person. (1C) Where C gives a written indication of plea under section 24ZA of the Magistrates’ Courts Act 1980, the court may or (as the case may be) must— (a) ascertain whether a person who is a parent or guardian of C is aware that the written indication of plea has been given, and (b) if it appears to the court that no parent or guardian is aware of that, bring the written indication of plea to the attention of at least one such person.

• (4) In subsection (2), for “the reference in subsection (1)” substitute “a reference in any of subsections (1) to (1C)”.

Removal of certain requirements for hearings about procedural matters

15

• (1) In section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 (issue of witness summons on application to Crown Court), in subsection (8)(d), at the end insert “(if the application is determined at a hearing)”.

• (2) In section 8C of the Magistrates’ Courts Act 1980 (restrictions on reporting of certain pre-trial hearings in the magistrates’ court), in subsections (4)(a) and (5)(a), for “hearing” substitute “considering”.

• (3) In section 11 of the Criminal Justice Act 1987 (restrictions on reporting of certain preparatory hearings in the Crown Court), in subsections (7) and (8), for “hearing” substitute “considering”.

• (4) In the Criminal Procedure and Investigations Act 1996—

• (a) in section 37 (restrictions on reporting of certain preparatory hearings in the Crown Court), in subsections (6) and (7), for “hearing” substitute “considering”;

• (b) in section 41 (restrictions on reporting of certain pre-trial hearings in the Crown Court), in subsections (4) and (5), for “hearing” substitute “considering (in the case of proceedings in England and Wales) or hearing (in the case of proceedings in Northern Ireland)”.

• (5) In the Crime and Disorder Act 1998—

• (a) in section 52A (restrictions on reporting of certain initial proceedings in the magistrates’ court), in subsections (3) and (4), for “hearing” substitute “considering”;

• (b) in paragraph 3 of Schedule 3 (restrictions on reporting of applications for dismissal of charge in the Crown Court), in sub-paragraph (3), for “hearing” substitute “considering”.

• (6) In section 47 of the Youth Justice and Criminal Evidence Act 1999 (restrictions on reporting of certain matters to do with witnesses), in subsections (4) and (5), for “hearing” substitute “considering (in the case of proceedings in England and Wales) or hearing (in the case of other proceedings)”.

• (7) In section 71 of the Criminal Justice Act 2003 (restrictions on reporting of prosecution appeals), in subsections (5)(a) and (6)(a), for “hearing” substitute “considering”.

Documents to be served in accordance with Criminal Procedure Rules

16

Schedule 1 amends various provisions to do with the service or delivery of documents so as to allow the same methods to be adopted as for service under Criminal Procedure Rules.

Power to make consequential or supplementary provision

17

• (1) The Lord Chancellor may, by regulations, make consequential or supplementary provision in relation to any provision of this Chapter.

• (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 contained in subordinate legislation within the meaning of the Interpretation Act 1978 (whenever the legislation was made or the Act under which it was made was passed).

• (3) Regulations under this section that amend or repeal any provision of an Act are subject to affirmative resolution procedure (see section 49(3)).

• (4) Any other regulations under this section are subject to negative resolution procedure (see section 49(4)).

Consequential and related amendments

18

Schedule 2 contains amendments that are consequential on, or related to, the preceding provisions of this Chapter.

Chapter 2 — Online procedure

Rules for online procedure in courts and tribunals

19

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

• (a) must require that kind of proceedings, or one or more aspects of that kind 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 their 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) Powers to make Online Procedure Rules (see sections 22(1) and 23) are 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, and

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

• (4) For the purposes of subsection (3)(a), regard must be had to the needs of persons who require online procedural assistance.

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

• (6) Where Online Procedure Rules require a person—

• (a) to initiate, conduct or progress proceedings by electronic means, or

• (b) to participate in proceedings, other than a hearing, by electronic means,

Online Procedure Rules must also provide that, if the person is not legally represented, the person may instead choose to do so by non-electronic means.

• (7) Where Online Procedure Rules require a person to participate in a hearing by electronic means, Online Procedure Rules must also provide that a court or tribunal may, on an application or of its own initiative, order or otherwise direct that person, or any other person, to participate by non-electronic means.

• (8) The 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, or fail to take, by electronic means.

• (9) 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) for the proceedings to be governed by the applicable standard rules instead.

• (10) Online Procedure Rules may 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

• (b) for the proceedings to cease to be governed by the applicable standard rules.

• (11) For the purposes of subsection (10)(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 (9)(a).

• (12) Online Procedure Rules may provide—

• (a) for proceedings of a specified kind to be taken in a court or tribunal which 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 those proceedings would be taken if governed by the applicable standard rules).

• (13) But Online Procedure Rules may not provide—

• (a) for proceedings to be taken in a court or tribunal that is not established under the law of the jurisdiction in which those proceedings are brought, or

• (b) for an appeal to be taken in the court or tribunal whose judgment or decision is being appealed against.

• (14) This section is subject to section 21.

• (15) Schedule 3 makes provision about practice directions in relation to proceedings governed by Online Procedure Rules.

“Specified kinds” of proceedings

20

• (1) Proceedings are of a “specified kind” for the purposes of section 19 if they are a kind of—

• (a) civil proceedings in England and Wales,

• (b) family proceedings in England and Wales,

• (c) proceedings in the First-tier Tribunal,

• (d) proceedings in the Upper Tribunal,

• (e) proceedings in employment tribunals, or

• (f) proceedings in the Employment Appeal Tribunal,

specified in regulations made by the Lord Chancellor.

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

• (a) the 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) Regulations under this section are subject to the concurrence requirement (see section 32(1)).

• (4) Regulations under this section are subject to affirmative resolution procedure (see section 49(3)).

Provision supplementing section 19

21

• (1) The Lord Chancellor may, by regulations, provide for circumstances in which—

• (a) a person initiating proceedings of a specified kind may choose whether the proceedings are to be governed by Online Procedure Rules or the applicable standard rules;

• (b) the person initiating any aspect of proceedings that are governed by Online Procedure Rules may choose for that aspect to be initiated, conducted, progressed or disposed of in accordance with the applicable standard rules instead of Online Procedure Rules.

• (2) Directions under Schedule 3 do not apply to proceedings to the extent that the applicable standard rules apply to those proceedings by virtue of regulations under subsection (1)(b).

• (3) The Lord Chancellor may, by regulations, provide—

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

• (i) are 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 the applicable standard rules instead.

• (4) The Lord Chancellor 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

• (b) for the proceedings to cease to be governed by the applicable standard rules.

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

• (a) Online Procedure Rules of the kind referred to in section 19(9)(a), or

• (b) regulations under subsection (1)(a) or (3)(a).

• (6) Regulations under this section are subject to the concurrence requirement (see section 32(1)).

• (7) Regulations under this section are subject to affirmative resolution procedure (see section 49(3)).

The Online Procedure Rule Committee

22

• (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 the persons appointed under subsections (3) and (4).

• (3) The Lord Chief Justice is to appoint—

• (a) one person who is a judge of the Senior Courts of England and Wales, and

• (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) a judge of the First-tier Tribunal, a judge of the Upper Tribunal, an Employment Judge, or a judge of the Employment Appeal Tribunal nominated as such by the Lord Chief Justice.

• (4) The Lord Chancellor is to appoint—

• (a) one person who is a barrister in England and Wales, a solicitor of the Senior Courts of England and Wales, or a legal executive,

• (b) one person who has experience in, and knowledge of, the lay advice sector, and

• (c) one person who has experience in, and knowledge of, information technology relating to end-users’ experience of internet portals.

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

• (a) the Lord Chancellor, and

• (b) the Senior President of Tribunals.

• (6) Before appointing a person under subsection (3)(b) the Lord Chief Justice must—

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

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

• (7) Before appointing a person under subsection (4)(a) the Lord Chancellor must consult—

• (a) the Lord Chief Justice,

• (b) the Senior President of Tribunals, and

• (c) the relevant authorised body.

• (8) Before appointing a person under subsection (4)(b) or (c) the Lord Chancellor must consult—

• (a) the Lord Chief Justice, and

• (b) the Senior President of Tribunals.

• (9) The Lord Chief Justice may appoint one of the persons appointed under subsection (3)(a) or (b) to be the chair of the Online Procedure Rule Committee.

• (10) 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.

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

• (12) In this section—

• “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 subsection (4)(a), means— the General Council of the Bar of England and Wales, if the appointment is of a barrister; the Law Society of England and Wales, if the appointment is of a solicitor; the Chartered Institute of Legal Executives, if the appointment is of a legal executive.

General powers of the Online Procedure Rule Committee

23

• (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 Committee has the powers set out in the corresponding entry in the second column.

Kind of proceedings	Powers of the Online Procedure Rule Committee
Civil proceedings in England and Wales	The same powers that the Civil Procedure Rule Committee 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 and refer to practice directions).
Family proceedings in England and Wales	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 (8) of that Act (powers to apply other rules and refer to practice directions).
Proceedings in the First-tier 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 in the First-tier Tribunal, except the power under paragraph 17 of Schedule 5 to that Act (power to refer to practice directions).
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 in the Upper Tribunal, except the power under paragraph 17 of Schedule 5 to that Act (power to refer to practice directions).
Proceedings in employment tribunals	The same powers that the Tribunal Procedure Committee has under Parts 1 and 3 of the Employment Tribunals Act 1996 or otherwise for making Employment Tribunal Procedure Rules for proceedings before employment tribunals, except the power under paragraph 18 of Schedule A1 to that Act (power to refer to practice directions).
Proceedings in the Employment Appeal Tribunal	The same powers that the Tribunal Procedure Committee has under Parts 2 and 3 of the Employment Tribunals Act 1996 or otherwise for making Employment Tribunal Procedure Rules for proceedings before the Employment Appeal Tribunal, except the power under paragraph 18 of Schedule A1 to that Act (power to refer to practice directions).

• (2) Online Procedure Rules may apply other procedural provision.

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

• (4) The other procedural provision may be applied—

• (a) to any extent;

• (b) with or without modifications;

• (c) as amended from time to time.

• (5) In subsections (2) to (4) “other procedural provision” means—

• (a) Civil Procedure Rules,

• (b) Family Procedure Rules,

• (c) Tribunal Procedure Rules,

• (d) Employment Tribunal Procedure Rules,

• (e) other rules of court,

• (f) directions under—

• (i) section 7A or 29A of the Employment Tribunals Act 1996,

• (ii) section 5 of the Civil Procedure Act 1997,

• (iii) section 81 of the Courts Act 2003, or

• (iv) section 23 of the Tribunals, Courts and Enforcement Act 2007, or

• (g) any other provision governing the practice or procedure of a court or tribunal which is made by or under an enactment (whenever passed or made).

• (6) Online Procedure Rules may, instead of providing for any matter, refer to provision made or to be made about that matter by directions under Schedule 3.

Power to make certain provision about dispute-resolution services

24

• (1) This section applies to Online Procedure Rules which provide—

• (a) for the transfer by electronic means of information held for the purposes of an online dispute-resolution service to a court or tribunal, or

• (b) for a court or tribunal to take into account, for any purpose, steps that a party to proceedings has or has not taken in relation to an online dispute-resolution service.

• (2) The Rules may be expressed so that their application in relation to a particular service depends on things done by a particular person from time to time.

• (3) The Rules may, for example, refer to such services as—

• (a) appear from time to time in a list published by a particular person, or

• (b) are from time to time certified by a particular person as complying with particular standards.

• (4) In this section—

• “online dispute-resolution service” means a service accessible by electronic means for facilitating the resolution of disputes without legal proceedings;

• “particular person” and “particular standards” include, respectively, a person of a particular description and standards of a particular description.

Power to change certain requirements relating to the Committee

25

• (1) The Lord Chancellor may by regulations—

• (a) amend section 22(2) to (9), and

• (b) make consequential amendments in any other provision of section 22 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 Lord Chief Justice, and

• (b) 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) the 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 the function of the Lord Chief Justice under subsection (2).

• (5) Regulations under this section are subject to negative resolution procedure (see section 49(4)).

Process for making Online Procedure Rules

26

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

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

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

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

• (a) signed by—

• (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) submitted to the Lord Chancellor.

• (3) The Lord Chancellor may allow or disallow Online Procedure Rules made by the Committee.

• (4) In deciding whether to allow or disallow rules, the Lord Chancellor must have regard to the needs of persons who require online procedural assistance.

• (5) If the Lord Chancellor disallows rules, the Lord Chancellor must give the Committee written reasons for doing so.

• (6) Rules made by the Committee and allowed by the Lord Chancellor—

• (a) come into force on such day as the Lord Chancellor 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 annulment in pursuance of a resolution of either House of Parliament.

Power to require Online Procedure Rules to be made

27

• (1) This section applies if the Lord Chancellor gives the Online Procedure Rule Committee written notice that the Lord Chancellor thinks it is expedient for Online Procedure Rules to include provision that would achieve a 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 Lord Chancellor gives notice to the Committee;

• (b) made in accordance with section 26.

Power to make amendments in relation to Online Procedure Rules

28

• (1) The Lord Chancellor may by regulations amend, repeal or revoke any enactment to the extent that the Lord Chancellor considers necessary or desirable in consequence of, or in order to facilitate the making of, Online Procedure Rules.

• (2) In subsection (1), “enactment” means any enactment whenever passed or made, including an enactment comprised in subordinate legislation within the meaning of the Interpretation Act 1978.

• (3) The Lord Chancellor must consult the Lord Chief Justice and the Senior President of Tribunals before making regulations under this section.

• (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 the function under subsection (3).

• (5) Regulations under this section that amend or repeal any provision of an Act are subject to affirmative resolution procedure (see section 49(3)).

• (6) Any other regulations under this section are subject to negative resolution procedure (see section 49(4)).

Duty to make support available for those who require it

29

The Lord Chancellor must arrange for the provision of such support as the Lord Chancellor considers to be appropriate and proportionate for persons who require online procedural assistance.

Power to make consequential or supplementary provision

30

• (1) The Lord Chancellor may, by regulations, make consequential or supplementary provision in relation to any provision of this Chapter.

• (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 contained in subordinate legislation within the meaning of the Interpretation Act 1978 (whenever the legislation was made or the Act under which it was made was passed).

• (3) Regulations under this section that amend or repeal any provision of an Act are subject to affirmative resolution procedure (see section 49(3)).

• (4) Any other regulations under this section are subject to negative resolution procedure (see section 49(4)).

Amendments of other legislation

31

Schedule 4 contains amendments in connection with the preceding provisions of this Chapter.

Judicial agreement to certain regulations

32

• (1) Where regulations under this Chapter are subject to the “concurrence requirement”, the Lord Chancellor—

• (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) civil proceedings in England and Wales, or

• (ii) family proceedings in England and Wales;

• (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 proceedings in—

• (i) the First-tier Tribunal,

• (ii) the Upper Tribunal,

• (iii) employment tribunals, or

• (iv) the Employment Appeal Tribunal.

• (2) 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 of the Lord Chief Justice under subsection (1)(a).

Interpretation of this Chapter

33

In this Chapter—

• “applicable standard rules” means— Civil Procedure Rules, in the case of civil proceedings in England and Wales; Family Procedure Rules, in the case of family proceedings in England and Wales; Tribunal Procedure Rules, in the case of proceedings in the First-tier Tribunal or the Upper Tribunal; Employment Tribunal Procedure Rules, in the case of proceedings in employment tribunals or the Employment Appeal Tribunal;

• “civil proceedings in England and Wales” means proceedings in relation to which Civil Procedure Rules may be made under the Civil Procedure Act 1997;

• “family proceedings in England and Wales” means family proceedings within the meaning given by section 75 of the Courts Act 2003;

• “Lord Chief Justice” means the Lord Chief Justice of England and Wales;

• “Online Procedure Rules” has the meaning given by section 19(2);

• “persons who require online procedural assistance” means persons who, because of difficulties in accessing or using electronic equipment, require assistance in order to initiate, conduct, progress or participate in proceedings by electronic means in accordance with Online Procedure Rules;

• “specified kind” (in relation to proceedings) is to be read in accordance with section 20(1).

Chapter 3 — Employment tribunals and the Employment Appeal Tribunal

Employment Tribunal Procedure Rules

34

• (1) The Employment Tribunals Act 1996 is amended as set out in subsections (2) to (4).

• (2) For section 7 substitute—

(7) Procedure Rules (see section 37QA) are to govern the practice and procedure to be followed in employment tribunals.

• (3) For section 30 substitute—

(30) (1) Procedure Rules (see section 37QA) are to govern the practice and procedure to be followed in the Appeal Tribunal. (2) The Appeal Tribunal has the power to regulate its own practice and procedure, subject to Procedure Rules, directions under section 29A(1), and any other provision made by or under an enactment.

• (4) At the beginning of Part 3 insert—

(37QA) (1) There are to be rules made by the Tribunal Procedure Committee called “Employment Tribunal Procedure Rules”. (2) Those are the rules referred to as “Procedure Rules” in this Act. (3) Schedule A1 makes further provision about Procedure Rules. (4) The power of the Tribunal Procedure Committee to make Procedure Rules for the purposes set out in sections 7 and 30(1) is not limited by any other provision (including future provision) about what Procedure Rules may or must contain.

• (5) Schedule 5 contains further provision in connection with the provision made by the preceding subsections.

Composition of tribunals

35

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

• (2) For section 4 substitute—

(4) (1) An employment tribunal is, for the purpose of deciding any given matter, to be composed of a member or members chosen by the Senior President of Tribunals. (2) The member, or each member, chosen must belong to a panel of members of employment tribunals appointed in accordance with regulations under section 1(1). (3) The Senior President of Tribunals (or any person to whom the function under subsection (1) is delegated)— (a) must act in accordance with regulations under subsection (4); (b) may choose themselves (if eligible in accordance with regulations under section 1(1)). (4) The Lord Chancellor must by regulations make provision, in relation to every matter that may fall to be decided by an employment tribunal, for determining the number of members who are to compose the tribunal. (5) Where regulations under subsection (4) provide for a tribunal to be composed of a single member, the regulations must provide for that member to be an Employment Judge. (6) Where regulations under subsection (4) provide for a tribunal to be composed of more than one member, the regulations— (a) must provide for at least one of those members to be an Employment Judge, (b) must make provision for determining how many (if any) of the other members are to be Employment Judges and how many (if any) are to be members who are not Employment Judges, and (c) if the tribunal is to include one or more members who are not Employment Judges, may make provision for determining what qualifications (if any) that member or any of those members must have. (7) A duty under subsection (4) or (6) to provide for the determination of anything may be discharged by providing for the thing to be determined by the Senior President of Tribunals or the President of Employment Tribunals in accordance with any provision made under that subsection. (8) The power under subsection (6)(c) may be exercised by giving the Senior President of Tribunals or the President of Employment Tribunals power to determine what qualifications are required in accordance with any provision made by the regulations. (9) Where a tribunal is to be composed of more than one member, the tribunal may proceed in the absence of one or more of the members chosen to compose it if— (a) the parties to the case agree, and (b) at least one of the members who is present is an Employment Judge. (10) Where a person (other than an Employment Judge) is chosen as one of the members composing a tribunal but does not have a qualification required by virtue of subsection (6)(c), the tribunal may still proceed with that person as a member if the parties to the case agree. (11) Before making regulations under this section, the Lord Chancellor must consult the Senior President of Tribunals. (12) In this section— - “President of Employment Tribunals”— in relation to employment tribunals in England and Wales, means the President of Employment Tribunals (England and Wales), and in relation to employment tribunals in Scotland, means the President of Employment Tribunals (Scotland); - “qualification” includes experience.

• (3) For section 28 substitute—

(28) (1) The Appeal Tribunal is, for the purpose of deciding any given matter, to be composed of a member or members chosen by the Senior President of Tribunals. (2) The Senior President of Tribunals (or any person to whom the function under subsection (1) is delegated)— (a) must act in accordance with regulations under subsection (3); (b) may choose themselves (if otherwise eligible to sit). (3) The Lord Chancellor must by regulations make provision, in relation to every matter that may fall to be decided by the Appeal Tribunal, for determining the number of members who are to compose the Tribunal. (4) Where regulations under subsection (3) provide for the Appeal Tribunal to be composed of a single member, the regulations must provide for that member to be a judge. (5) Where regulations under subsection (3) provide for the Appeal Tribunal to be composed of more than one member, the regulations— (a) must provide for at least one of those members to be a judge, (b) must make provision for determining how many (if any) of the other members are to be judges and how many (if any) are to be appointed members, and (c) if the Tribunal is to be composed of persons who include one or more appointed members, may make provision for determining what qualifications (if any) that member or any of those members must have. (6) A duty under subsection (3) or (5) to provide for the determination of anything may be discharged by providing for the thing to be determined by the Senior President of Tribunals or the President of the Appeal Tribunal in accordance with any provision made under that subsection. (7) The power under subsection (5)(c) may be exercised by giving the Senior President of Tribunals or the President of the Appeal Tribunal power to determine what qualifications are required in accordance with any provision made by the regulations. (8) Where the Appeal Tribunal is to be composed of more than one member, the Tribunal may proceed in the absence of one or more of the members chosen to compose it if— (a) the parties to the case agree, and (b) at least one of the members who is present is a judge. (9) Where a person (other than a judge) is chosen as one of the members composing the Appeal Tribunal but does not have a qualification required by virtue of subsection (5)(c), the Tribunal may still proceed with that person as a member if the parties to the case agree. (10) Before making regulations under this section, the Lord Chancellor must consult the Senior President of Tribunals. (11) In this section, “qualification” includes experience.

• (4) In section 41(2) (orders, regulations and rules subject to affirmative procedure)—

• (a) omit “, 4(4) or (6D)” and “, 28(5)”;

• (b) before “37N” insert “4, 28,”.

Saving for existing procedural provisions

36

No amendment or repeal made by section 34 or 35 or Schedule 5 affects the continued operation of—

• (a) the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (S.I. 2013/1237),

• (b) the Employment Appeal Tribunal Rules 1993 (S.I. 1993/2854), or

• (c) any practice direction made under section 7A of the Employment Tribunals Act 1996 or the regulations referred to in paragraph (a).

Exercise of tribunal functions by authorised persons

37

• (1) Chapter 2A of Part 1 of the Tribunals, Courts and Enforcement Act 2007 (which makes provision in connection with the exercise of functions of tribunals by persons authorised under Tribunal Procedure Rules) is amended as follows.

• (2) In section 29A (meaning of certain terms)—

• (a) for the heading substitute “Interpretation of Chapter”;

• (b) in the definition of “authorised person”—

• (i) for “paragraph 3 of Schedule 5” substitute “a relevant Procedure Rule”;

• (ii) for “the First-tier Tribunal or Upper Tribunal” substitute “a tribunal”;

• (c) in the definition of “judicial office holder”—

• (i) for “has” substitute “means—

(a) a judicial office holder within

;

• (ii) at the end insert

, or (b) the President of Employment Tribunals (Scotland);

;

• (d) at the end insert—

• “relevant Procedure Rule” means— a Tribunal Procedure Rule of a kind mentioned in paragraph 3 of Schedule 5 to this Act, or an Employment Tribunal Procedure Rule of a kind mentioned in paragraph 2 of Schedule A1 to the Employment Tribunals Act 1996;
• “tribunal” means the First-tier Tribunal, the Upper Tribunal, an employment tribunal or the Employment Appeal Tribunal.

• (3) In each of the following provisions, for “paragraph 3 of Schedule 5” substitute “a relevant Procedure Rule”—

• (a) section 29B(2) (authorised person not subject to directions not made under that section);

• (b) section 29C(1)(a) and (2)(a) (protection against actions for authorised persons acting within or without jurisdiction);

• (c) section 29D(1) (protection against costs for authorised persons).

Responsibility for remunerating tribunal members

38

In the following provisions of the Employment Tribunals Act 1996, for “Secretary of State”, in each place it occurs, substitute “Lord Chancellor”—

• (a) section 5(1), (2) and (3) (remuneration of members of employment tribunals etc);

• (b) section 27(1), (3) and (4) (remuneration of members of Employment Appeal Tribunal etc).

Chapter 4 — Coroners

Discontinuance of investigation where cause of death becomes clear

39

• (1) Section 4 of the Coroners and Justice Act 2009 (discontinuance of investigation where cause of death revealed by post-mortem examination) is amended as set out in subsections (2) and (3).

• (2) In the heading, for “revealed by post-mortem examination” substitute “becomes clear before inquest”.

• (3) In subsection (1), for paragraph (a) substitute—

(a) the coroner is satisfied that the cause of death has become clear in the course of the investigation, (aa) an inquest into the death has not yet begun, and

.

• (4) In the following provisions of the Births and Deaths Registration Act 1953, for “revealed by post-mortem examination” substitute “becoming clear before inquest”—

• (a) in section 2(1), paragraph (ii) of the proviso;

• (b) in section 16(3), paragraph (ii) of the proviso;

• (c) in section 17(3), paragraph (ii) of the proviso;

• (d) section 29(3B).

• (5) In section 273(2)(a) of the Merchant Shipping Act 1995, for “revealed by post-mortem examination” substitute “becoming clear before inquest”.

• (6) In Schedule 21 to the Coroners and Justice Act 2009 (which, among other things, makes amendments to the Births and Deaths Registration Act 1953 that have yet to come into force)—

• (a) in paragraph 10(5), in the inserted subsection (2)(b), for “revealed by post-mortem examination” substitute “becoming clear before inquest”;

• (b) in paragraph 11(2), in the substituted section (A1)(b), for “revealed by post-mortem examination” substitute “becoming clear before inquest”;

• (c) in paragraph 16(2), in the substituted paragraph (a), for the words from “there has” to “the death,” substitute

— (i) there has been no investigation under Part 1 of the 2009 Act into the death, or (ii) such an investigation has been discontinued under section 4 of the 2009 Act (cause of death becoming clear before inquest) other than as mentioned in paragraph (b),

.

Power to conduct non-contentious inquests in writing

40

• (1) The Coroners and Justice Act 2009 is amended as follows.

• (2) After section 9B insert—

(9C) (1) Where an inquest into a death is to be held without a jury, the inquest is to be held— (a) at a hearing, or (b) if the senior coroner decides that a hearing is unnecessary, in writing. (2) The senior coroner is not to decide that a hearing is unnecessary unless— (a) the coroner has invited representations from each interested person known to the coroner, (b) no interested person has represented on reasonable grounds that a hearing should take place, (c) it appears to the coroner that there is no real prospect of disagreement among interested persons as to the determinations or findings that the inquest could or should make, and (d) it appears to the coroner that no public interest would be served by a hearing.

• (3) In section 10(1) (determinations and findings required at inquest), for “hearing the evidence at” substitute “considering the evidence given to”.

• (4) In section 45(2) (provision that may be made in Coroners rules), in paragraph (e), for “at” substitute “in the course of”.

• (5) In section 47(2) (interested persons), in paragraph (l), after “attend” insert “or follow”.

• (6) In paragraph 11 of Schedule 1 (resumption of inquests after adjournment)—

• (a) in sub-paragraph (2), for “The following provisions” substitute “Sub-paragraphs (3) and (4)”;

• (b) after sub-paragraph (4) insert—

(5) Where an inquest is resumed under this paragraph without a jury (whether or not it had one before the adjournment), the senior coroner must consider, in accordance with section 9C, whether the resumed inquest is to be held at a hearing or in writing.

Use of audio or video links at inquests

41

• (1) Section 45 of the Coroners and Justice Act 2009 (Coroners rules) is amended as follows.

• (2) In subsection (2) (examples of provision that may be contained in Coroners rules), after paragraph (e) insert—

(ea) provision for or in connection with the conduct of hearings wholly or partly by way of electronic transmission of sounds or images;

.

• (3) After subsection (2) insert—

(2A) Coroners rules that provide for members of a jury to take part in a hearing by way of electronic transmission of sounds or images must provide for all members of the jury to take part in that way while present at the same place.

Suspension of requirement for jury at inquest where coronavirus suspected

42

• (1) In section 7 of the Coroners and Justice Act 2009 (whether inquest to be held with jury), after subsection (4) insert—

(5) But COVID-19 is not a notifiable disease for the purposes of subsection (2)(c).

• (2) The amendment made by subsection (1) has effect in relation to any inquest opened on or after the day on which this section comes into force (regardless of the date of death).

• (3) The inserted subsection expires at the end of the period of two years beginning with the day on which this section comes into force, subject to regulations under subsection (6).

• (4) Before the expiry day, the Lord Chancellor must assess the likely effects of the expiry of the inserted subsection on the coronial system.

• (5) Subsection (6) applies if, having carried out that assessment, the Lord Chancellor considers that it would be expedient for the inserted subsection to continue in force beyond the expiry day.

• (6) The Lord Chancellor may, at any time before the inserted subsection expires, make regulations providing for the inserted subsection—

• (a) not to expire when it would otherwise expire, but

• (b) to expire at the end of such later day as is specified in the regulations.

• (7) The day specified under subsection (6)(b) may not be later than two years after the expiry day as it stands immediately before the making of the regulations.

• (8) Regulations under subsection (6) are subject to affirmative resolution procedure (see section 49(3)).

• (9) Subsection (2) expires when the inserted subsection expires.

But the expiry of the inserted subsection does not affect any inquest opened while the inserted subsection was in force.

• (10) In this section—

• “the inserted subsection” means subsection (5) of section 7 of the Coroners and Justice Act 2009, as inserted by subsection (1);

• “the expiry day” means the day at the end of which the inserted subsection is for the time being due to expire (whether by virtue of subsection (3) or regulations under subsection (6)).

• (11) In the Coronavirus Act 2020, omit section 30 (suspension of requirement for jury at inquest where coronavirus suspected).

• (12) The repeal made by subsection (11) does not affect any inquest opened while the repealed section was in force.

Phased transition to new coroner areas

43

In Schedule 22 to the Coroners and Justice Act 2009 (transitional provision etc), after paragraph 1 insert—

(1A) An order under paragraph 2 of Schedule 2 (alteration of coroner areas) may combine two or more coroner areas each of which— (a) is wholly within the area of the same local authority, and (b) is specified in either— (i) the transitional order, or (ii) an earlier order made by virtue of this paragraph, without the resulting coroner area having to satisfy paragraph 1(2) of that Schedule.

Provision of information to registrar when investigation discontinued

44

In section 23 of the Births and Deaths Registration Act 1953 (furnishing of information by coroner in connection with registration of death), after subsection (3) insert—

(4) Where a senior coroner— (a) discontinues an investigation under section 4 of the 2009 Act, (b) authorises the disposal of the body, and (c) sends to the registrar, on request by the registrar, a certificate stating any particulars required by this Act to be registered concerning the death (so far as they have been ascertained at the date of the certificate), the registrar shall in the prescribed form and manner register the death and those particulars, so far as they are not already registered.

Chapter 5 — Other provisions about courts and tribunals

Local justice areas

Abolition of local justice areas

45

• (1) Local justice areas are abolished.

• (2) Accordingly, omit section 8 of the Courts Act 2003 (local justice areas).

• (3) The Lord Chancellor may, by regulations, make consequential or supplementary provision in relation to the abolition of local justice areas.

• (4) Regulations under this section may include provision amending, repealing or revoking provision made by or under an Act (whenever passed or made).

• (5) Regulations under this section that amend or repeal any provision made by an Act are subject to affirmative resolution procedure (see section 49(3)).

• (6) Any other regulations under this section are subject to negative resolution procedure (see section 49(4)).

Courthouses in the City of London

The Mayor’s and City of London Court: removal of duty to provide premises

46

• (1) Section 29 of the Courts Act 1971 (court accommodation in the City of London) is amended as follows.

• (2) In subsection (1)—

• (a) omit “respectively”;

• (b) omit “and the Mayor’s and City of London Court”;

• (c) for “those names” substitute “that name”;

• (d) for “those courts respectively” substitute “that court”.

• (3) In subsection (2), for “courts” substitute “court”.

The City of London Magistrates’ Court: removal of duty to provide premises

47

• (1) Omit paragraph 16 of Schedule 2 to the Courts Act 2003 (power to impose an obligation to provide premises for the City of London Magistrates’ Court).

• (2) In consequence of the repeal made by subsection (1), omit paragraph 35 of Schedule 14 to the Access to Justice Act 1999 (continuing provision of court-houses, accommodation etc).

Pro bono representation in courts and tribunals

Payments in respect of pro bono representation

48

• (1) In section 194 of the Legal Services Act 2007 (payments in respect of pro bono representation in civil proceedings in England and Wales)—

• (a) in the heading, at the end insert “: civil courts in England and Wales”;

• (b) in subsection (8), for “by order made by the Lord Chancellor” substitute “under section 194C”;

• (c) omit subsection (9);

• (d) in subsection (10)—

• (i) in the definition of “civil court”, omit paragraph (a);

• (ii) omit the definition of “relevant civil appeal”.

• (2) After section 194 of the Legal Services Act 2007 insert—

(194A) (1) This section applies to relevant tribunal proceedings in which— (a) a party to the proceedings (“P”) is or was represented by a legal representative (“R”), and (b) R’s representation of P is or was provided free of charge, in whole or in part. (2) This section applies to such proceedings even if P is or was also represented by a legal representative not acting free of charge. (3) The tribunal may make an order under this section against a person if the condition in subsection (5) is met in respect of that person (and if subsection (7) does not apply). (4) An order under this section is an order for the person to make a payment to the prescribed charity in respect of R’s representation of P (or, if only part of R’s representation of P was provided free of charge, in respect of that part). (5) The condition is that, had R’s representation of P not been provided free of charge, the tribunal would have had the power to order the person to make a payment to P in respect of sums payable to R by P in respect of that representation. (6) In considering whether to make an order under this section against a person, and the terms of such an order, the tribunal must have regard to— (a) whether, had R’s representation of P not been provided free of charge, it would have made an order against that person as described in subsection (5), and (b) if it would, what the terms of the order would have been. (7) The tribunal may not make an order under this section against a person represented in the proceedings if the person’s representation was at all times within subsection (8). (8) Representation is within this subsection if it is provided— (a) by a legal representative acting free of charge, or (b) by way of legal aid. (9) For the purposes of subsection (8)(b), representation is provided by way of legal aid if it is— (a) provided under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, (b) made available under Part 2 or 3 of the Legal Aid (Scotland) Act 1986, or (c) funded under Part 2 of the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)). (10) Procedure rules may make further provision as to the making of orders under this section, and may in particular— (a) provide that such orders may not be made in proceedings of a description specified in the rules; (b) make provision about the procedure to be followed in relation to such orders; (c) specify matters (in addition to those mentioned in subsection (6)) to which the tribunal must have regard in deciding whether to make such an order, and the terms of any order. (11) In this section “relevant tribunal proceedings” means proceedings in— (a) the First-tier Tribunal, (b) the Upper Tribunal, (c) an employment tribunal, (d) the Employment Appeal Tribunal, or (e) the Competition Appeal Tribunal, but does not include proceedings within devolved competence. (12) For the purposes of subsection (11), proceedings are within devolved competence if provision regulating the procedure to be followed in those proceedings could be made by— (a) an Act of the Scottish Parliament, (b) an Act of Senedd Cymru (including one passed with the consent of a Minister of the Crown within the meaning of section 158(1) of the Government of Wales Act 2006), or (c) an Act of the Northern Ireland Assembly the Bill for which would not require the consent of the Secretary of State. (13) The Lord Chancellor may by regulations— (a) amend subsection (11) so as to add a tribunal to the list in that subsection, and (b) make consequential amendments of the definition of “procedure rules” in subsection (14). (14) In this section— - “free of charge” means otherwise than for or in expectation of fee, gain or reward; - “legal representative” means a person who is— entitled in accordance with section 13 to carry on the activity of exercising a right of audience or conducting litigation, a solicitor enrolled in the roll of solicitors kept under section 7 of the Solicitors (Scotland) Act 1980, a member of the Faculty of Advocates in Scotland, a person having a right to conduct litigation, or a right of audience, by virtue of section 27 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, a member of the Bar of Northern Ireland, or a solicitor of the Court of Judicature of Northern Ireland, irrespective of the capacity in which the person is acting in the proceedings concerned; - “prescribed charity” means the charity prescribed under section 194C; - “procedure rules” means— Tribunal Procedure Rules, in relation to proceedings in the First-tier Tribunal or the Upper Tribunal, Employment Tribunal Procedure Rules, in relation to proceedings in an employment tribunal or the Employment Appeal Tribunal, or rules under section 15 of the Enterprise Act 2002, in relation to proceedings in the Competition Appeal Tribunal; - “tribunal” does not include an ordinary court of law. (15) An order under this section may not be made in respect of representation if (or to the extent that) it was provided before section 48 of the Judicial Review and Courts Act 2022 came into force.

• (3) After section 194A of the Legal Services Act 2007 (as inserted by subsection (2)) insert—

(194B) (1) This section applies to proceedings in a relevant civil appeal to the Supreme Court in which— (a) a party to the proceedings (“P”) is or was represented by a legal representative (“R”), and (b) R’s representation of P is or was provided free of charge, in whole or in part. (2) This section applies to such proceedings even if P is or was also represented by a legal representative not acting free of charge. (3) The Court may make an order under this section against a person if the condition in subsection (5) is met in respect of that person (and if subsection (7) does not apply). (4) An order under this section is an order for the person to make a payment to the prescribed charity in respect of R’s representation of P (or, if only part of R’s representation of P was provided free of charge, in respect of that part). (5) The condition is that, had R’s representation of P not been provided free of charge, the Court would have had the power to order the person to make a payment to P in respect of sums payable to R by P in respect of that representation. (6) In considering whether to make an order under this section against a person, and the terms of such an order, the Court must have regard to— (a) whether, had R’s representation of P not been provided free of charge, it would have made an order against that person as described in subsection (5), and (b) if it would, what the terms of the order would have been. (7) The Court may not make an order under this section against a person represented in the proceedings if the person’s representation was at all times within subsection (8). (8) Representation is within this subsection if it is— (a) provided by a legal representative acting free of charge, or (b) provided by way of legal aid. (9) For the purposes of subsection (8)(b), representation is provided by way of legal aid if it is— (a) provided under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or (b) funded under Part 2 of the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)). (10) Supreme Court Rules may make further provision as to the making of orders under this section, and may in particular— (a) provide that such orders may not be made in proceedings of a description specified in the Rules; (b) make provision about the procedure to be followed in relation to such orders; (c) specify matters (in addition to those mentioned in subsection (6)) to which the Court must have regard in deciding whether to make such an order, and the terms of any order. (11) In this section— - “free of charge” means otherwise than for or in expectation of fee, gain or reward; - “legal representative”, in relation to a party to proceedings, means— a person exercising a right of audience, or conducting litigation, on the party’s behalf pursuant to an entitlement under section 13, or a member of the Bar of Northern Ireland, or a solicitor of the Court of Judicature of Northern Ireland, practising or acting as such on the party’s behalf; - “prescribed charity” means the charity prescribed under section 194C; - “relevant civil appeal” means an appeal— from the High Court under Part 2 of the Administration of Justice Act 1969, from the Upper Tribunal under section 14B(4) of the Tribunals, Courts and Enforcement Act 2007, from the Court of Appeal under section 40(2) of the Constitutional Reform Act 2005 or section 42 of the Judicature (Northern Ireland) Act 1978, or under section 13 of the Administration of Justice Act 1960 (appeal in cases of contempt of court), other than an appeal from an order or decision made in the exercise of jurisdiction to punish for criminal contempt of court. (12) An order under this section may not be made in respect of representation in proceedings in a relevant civil appeal— (a) from a court in Northern Ireland, or (b) from the Upper Tribunal under section 14B(4) of the Tribunals, Courts and Enforcement Act 2007, if (or to the extent that) the representation was provided before section 48 of the Judicial Review and Courts Act 2022 came into force.

• (4) After section 194B of the Legal Services Act 2007 (as inserted by subsection (3)) insert—