Courts and Tribunals Bill (Fifth sitting)
(1 day, 13 hours ago)
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The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 39, in clause 3, page 5, line 26, at end insert—
“or,
(c) the defendant demonstrates to the court that the circumstances of his case are such that to be tried without a jury would amount to a breach of the principles of natural justice.”
This amendment would ensure that trials by jury continue for indictable offences carrying a sentence of less than three years in prison if the defendant can demonstrate that it would be in the interests of natural justice.
Amendment 24, in clause 3, page 5, line 28, leave out subsection (5) and insert—
“(5) The conditions in this subsection are met in relation to a defendant if—
(a) the defendant, if convicted of the offence or offences for which the defendant is to be tried, would be likely to receive a sentence of imprisonment or detention of more than three years for the offence or offences (taken together);
(b) the defendant is of good character;
(c) the defendant has not previously been convicted of an imprisonable offence;
(d) the defendant would be treated as a rehabilitated person under section 1 of the Rehabilitation of Offenders Act 1974;
(e) if convicted of the offence or offences for which the defendant is to be tried, would likely suffer significant reputational damage or have their employment or professional qualifications adversely affected;
(f) there are reasonable grounds to believe that the gravity or complexity of the case may increase; or
(g) other exceptional circumstances pertain to the case.”
Rebecca Paul (Reigate) (Con)
It is an honour to serve under your chairmanship, Dr Huq.
I speak in support of amendments 23, 39 and 24 which, taken together, would do something simple but important: they would build a measure of flexibility back into the clause, so that jury trial is still available where the cause of justice requires it. The Minister should think carefully. As drafted, the clause creates a very blunt regime: unless the court predicts a sentence of more than three years, the trial is to be conducted without a jury. The amendments would go a small way towards softening that rigidity and making the system less arbitrary, more proportionate and hence more just.
With the amendments, two different Committee members take two different approaches to delivering the same outcome of additional flexibility in the clause. Amendment 39, tabled by my hon. Friend the Member for Bexhill and Battle, is broad in nature, setting out an additional condition for jury trial when needed to ensure natural justice, whereas the hon. Member for Bolton South and Walkden takes a more granular approach to the problem by listing the specific circumstances that might warrant the need for jury trial, again to ensure fairness. Both approaches seek to achieve the same thing.
I will speak to each amendment in a little more detail, starting with amendment 23. Clause 3 is currently built on one single condition for preserving jury trial in relevant cases: whether the defendant is likely to receive a sentence of more than three years if convicted. Amendment 23 would change the wording from “the condition” to
“one or more of the conditions”.
This is the gateway to allow amendment 24, which lists various conditions, to work.
The amendment matters because it opens the door to a more sensible approach, in which sentence is not the only thing that counts. That is exactly the right approach. When we deal with a constitutional safeguard as important as jury trial, the Committee should be wary of a system that turns entirely on a single mechanistic threshold. Human beings and criminal cases are not that neat, and Parliament should not pretend that they are. The amendment is therefore modest, tidy, entirely sensible and the necessary first step to add judgment, flexibility and common sense to a clause that has far too little of all three.
On amendment 24 and its list of conditions, the Government’s model under the clause is to ask the court at an early stage to forecast the sentence that would likely be imposed if the defendant were convicted. If the forecast is more than three years, there is a jury; if it is not, there is none. That is far too crude a test to bear the full constitutional weight that the Government want to place on it. The Bill itself exposes the weakness in the logic, because although the allocation decision turns on a prediction about a sentence above or below three years, the Bill also expressly states that nothing prevents a court sitting without a jury from later imposing a sentence of more than three years. In other words, even the Bill recognises that the initial prediction may not tell the whole story; if that is so, why should that prediction be the sole basis on which a person loses the right to jury trial?
Amendment 24 is so worth while because it states that in deciding whether a defendant should still have a jury, the court should not only look at the likely sentence but be able to consider whether: the defendant is of good character; they have previously been convicted of an imprisonable offence; they are treated as rehabilitated; conviction would cause significant reputational or professional harm; the gravity or complexity of the case might increase; and other exceptional circumstances. That does not strike me as radical. It is simply an attempt to make the law reflect reality and be less prescriptive. Additional flexibility makes for better outcomes.
One of the strongest parts of amendment 24 is the recognition it gives to good character and to those who have not previously been convicted of an imprisonable offence. I raise this because the Government’s crude threshold risks producing perverse results. The people who may be hit hardest by clause 3 are precisely those who are newer to the justice system, those of previous good character and those for whom a conviction would be utterly life-changing.
The Bar Council illustrated the point starkly in written evidence with the example of a 19-year-old student charged with possession with intent to supply after a small amount of Spice was found in their room—I am sure Members will remember my reciting that specific example in Committee on Tuesday. Because they are of good character, the likely sentence under the guidelines may be low enough that they lose jury trial altogether, even though the charge could destroy their future. Meanwhile, someone with previous convictions may be more likely to cross the sentencing threshold and so keep the right to a jury. That is exactly the sort of absurdity that amendment 24 tries to avoid.
That is wholly consistent with the broader critique of the Bill. Conservative Members have repeatedly argued that the Government are treating this as an administrative exercise, when in fact people’s lives are at stake. The shadow Justice Secretary, my hon. Friend the Member for West Suffolk (Nick Timothy), put it clearly on Second Reading when he said that the Government were proposing to remove fundamental rights
“without a mandate, without a case and without any evidence”.—[Official Report, 10 March 2026; Vol. 782, c. 207.]
The Opposition also challenged Ministers on taking away jury trial for offences that cost defendants their jobs, their homes and their families. Amendment 24 responds precisely to that point.
I note the inclusion in amendment 24 of cases in which the defendant would likely suffer significant reputational damage or have their employment or professional qualifications adversely affected. That is important because the seriousness of a case cannot be measured by custody alone. A sentence of under three years can still destroy a person’s livelihood, strip them of professional standing, end a career built over decades and permanently alter family life. The Government keep speaking as though anything beneath their threshold is somehow low level. The Opposition have rightly made the point that even where a sentence is below three years, the consequences can be catastrophic. Amendment 24 simply recognises that reality.
There is an obvious point of fairness here, too. If the state wishes to prosecute a person in circumstances where conviction may ruin their livelihood or reputation for life, it is hardly excessive to say that jury trials should at least remain available. That is an ancient constitutional right and the Government should, even now, think very hard before removing it.
I also support paragraph (f) in amendment 24, which deals with cases where there are reasonable grounds to believe that the gravity or complexity might increase. Again, this is simply common sense. Criminal cases often evolve, evidence changes, witnesses come forward, and issues that initially looked straightforward become anything but in the crucible that is the courtroom.
Jess Brown-Fuller (Chichester) (LD)
The hon. Lady is making an excellent point about the complexity of cases changing throughout. A legal professional recently shared with me the story of what was an assault case, but the victim passed away during the trial, so they are now dealing with hearing evidence of potential brain trauma injury. Does the hon. Lady agree that that case deserves the complexity of a full Crown court trial because the case has changed as the trail has developed?
Rebecca Paul
I completely agree with the hon. Lady. She has set out a good example of the type of things that happen in reality. Life is not tidy, and unexpected things happen. As we look at the Bill and whether a sentence is over or under three years, it is easy to think in simple terms but, in reality, people who work in the justice system—I have not done so, but I have spoken to people who do—understand the movement and flexibility that is required. That is why amendment 24 works really well by taking that into account. The hon. Member for Bolton South and Walkden, who drafted it, clearly has real-world experience of what actually happens in a courtroom.
The Bill already recognises elsewhere that there can be a relevant change of circumstances requiring the court to revisit allocation, so the Government’s own drafting accepts that these matters are dynamic rather than static. If that is so, why would we not want to build in a bit more foresight at the front end as well? Paragraph (f) in amendment 24 is not some wild departure from the structure of the Bill; it sits comfortably with the Government’s own recognition that allocation decisions can become unsound as a case develops. It is simply a more prudent and realistic approach to cases in which the true seriousness may emerge only over time.
Finally, the reference in amendment 24 to “other exceptional circumstances” is extremely important. No statute, however carefully drafted, can predict every factual scenario. That is especially true in criminal justice, where the facts and human consequences of a case can vary enormously. A residual exceptional circumstances test is therefore not a weakness; it is a mark of maturity in the law. It recognises that Parliament should not force judges into injustice. If the Government truly believe in justice rather than mere throughput, they should have no objection to preserving a narrow, exceptional route to jury trial where justice plainly demands it.
Amendment 39, tabled by my hon. Friend the Member for Bexhill and Battle, deals with the alternative, broader approach to building flexibility into clause 3. It is an especially important amendment because it puts the issue in the clearest possible terms: those of natural justice. The amendment says that a trial should still be conducted with a jury where the defendant demonstrates that to be tried without one
“would amount to a breach of the principles of natural justice.”
That is an extremely modest safeguard. It would not wreck the clause; it would merely build in additional protection through allowing an element of judgment to decide the mode of trial. It would not restore the right to a jury trial in every either-way case; it simply says that where the injustice is plain, a jury trial must remain available. I struggle to see how any Government serious about fairness could object to that.
This is an issue of paramount importance on our side, and I hope on the Government’s side too. My hon. Friend the Member for Bexhill and Battle tabled amendment 39, as well as amendments elsewhere in the Bill—in relation to clause 1, in relation to reallocation under clause 3, and in relation to clause 4—to seek to protect natural justice. We will keep making these points. If Ministers insist on creating judge-only routes, they must at the very least accept a residual safeguard based on natural justice.
For all the reasons I have outlined, I support amendments 23, 39 and 24. They would deliver the additional safeguards needed, so I urge the Government to adopt either the Opposition’s amendment or the amendments tabled by the hon. Member for Bolton South and Walkden.
Siân Berry (Brighton Pavilion) (Green)
It is great to have you in the Chair, Dr Huq. I am looking forward to today’s debates. I have not tabled any amendments to clause 3, but I want to talk about some necessary changes to the clause that fit in with this group of amendments. I hope the Committee will have patience with me.
I want to raise again the principle of jury equity, which the Government are effectively abolishing by abolishing the right to elect a jury trial completely. I previously asked whether the Minister had considered the Bill’s impact on jury equity when drafting it, but she did not answer. I also asked whether the Minister could tell us whether we can honestly expect a judge triaging a case under the provisions in the Bill ever to allow a jury trial on the grounds on which some people currently choose one, which is to allow for the possibility of jury equity to achieve real and proportionate justice, rather than the criteria in clause 3.
This issue is complicated, and trying to fix it in the context of a Bill that includes clause 1, which abolishes the defendant’s right to choose, is tricky, which is why I spoke so strongly against it. The principle and the right of juries in respect of jury equity comes out of common law. I mentioned the 1670 case, and the High Court has commented that it has been a well-established principle in common law ever since then. As it is not in statute it is, by tradition, relatively unspoken. I spoke of the case of Trudi Warner, who tested the principle through her desire to make sure that the information about jury equity was seen by people taking part in a protest. She did that not just in case they spotted the plaque in the Old Bailey, but through the demonstration that she passively took part in.
Dr Kieran Mullan (Bexhill and Battle) (Con)
It is a pleasure to serve under your chairmanship, Dr Huq.
I want to begin by touching again on the question of necessity. One of the key arguments for clause 3, and one of the reasons why the Opposition think there is a debate to be had, is that we do not feel that the new provisions are entirely necessary to bring down the backlog, and that there might be other means by which we might do so.
We have had a debate about what the figures say, and I have laid out why I think they are important. They are important because the Government accept that, quite plainly, they have not yet implemented the reforms that they think are absolutely necessary to bring down the backlog. While the Government and the Opposition recognise that some steps that might help have been taken, such as the lifting of the cap on sitting days, the Minister herself accepts that even that measure will not have had full effect yet. On other measures, such as on prison transport, there has not been any significant reform or undertakings to do things differently. We are at a very early stage of the approach to bringing down the backlogs in the significant way that the Minister and the Opposition would like to achieve.
In that scenario, given that so little has been done in comparison with what we would hope to achieve—with or without the Bill—if there were some suggestion that backlogs were falling, that would be incredibly important for the Committee to understand. It would give us the confidence to question whether, at this early stage, there is an alternative approach. If we are managing to bring the backlogs down in some parts of the country, we could base that approach on understanding what is happening in those areas and expanding on it before taking the unprecedented step of restricting jury trial rights.
The Minister and I had an exchange about this in an earlier debate. I suggested that there have been positive developments and a reduction of the backlog in some areas. I want to be clear about what I said to the Minister:
“What is happening right now with the backlogs is extremely important to this debate. If the backlogs are coming down in some places without these changes being introduced, it is vital to know and understand that.”
I echoed those points in other parts of the debate. The Minister responded:
“I checked this during the adjournment of the sitting: the CBA’s point relates to new receipts in certain courts, rather than the state of the backlogs, which, as I said, continue to rise. I absolutely welcome the progress in some parts of the country in lowering receipts, which is obviously good news for the courts, but that does not yet reflect any lowering of the backlogs. As we would expect, the investment will take time to kick in.”––[Official Report, Courts and Tribunals Public Bill Committee, 14 April 2026; c. 159.]
In response to my question as to whether the backlogs were coming down in some parts of the country, the Minister told the Committee—on the record—that they were not.
As Members might imagine, I went away and had a further look at the data to ensure that that was the case. My understanding of the latest available published statistics is that the Minister may have inadvertently misled the Committee in stating that the backlogs were not coming down in certain parts of the country. As of December 2025—the latest period for which we have this data is from quarter 3 to quarter 4—there has been a drop in the backlogs in the south-east, the north-west and Wales. We have seen a drop in the backlogs in the quarter-on-quarter data in three parts of the country, and it is extremely important that the Committee understands that.
Alex McIntyre (Gloucester) (Lab)
As the shadow Minister has the backlog data to hand—I do not—would he mind sharing with the Committee the data for all the other regions and the overall backlog picture for the whole country?
Dr Mullan
In all the other regions and overall, the backlogs are going up. That is why we have to understand what is happening regionally and why I asked the Minister about that. Throughout this Committee, one of the main arguments from Opposition Members, the Criminal Bar Association and other opponents of the Bill has been that if we are able to replicate what is happening in the best parts of the system, we should be prioritising that.
For example, Liverpool Crown court does not have what might be called unacceptable levels of backlog. As Sir Brian and others have pointed out, every Crown court has a backlog in the sense of a trail of cases that are due to be heard. That is a normal and needed part of the process of case management, and no one argues that there is an unsustainable and unacceptable backlog in Liverpool Crown court. If Liverpool and whole regions can get it right, surely we should be prioritising trying to replicate that.
Yasmin Qureshi (Bolton South and Walkden) (Lab)
The shadow Minister is talking about the north-west, and I am an MP for that region. The numbers are going down in Preston, Liverpool and even Bolton Crown courts, and one reason for that is that they have taken a proactive approach to case management. They are regularly monitoring cases, and going into courts to judge whether cases are trial ready. That is unlike in some parts of the country, where a case is set for trial in two or three years’ time and nobody looks at it or tries to sort out problems until literally two days beforehand, which then leads to a delay.
Dr Mullan
The hon. Member has articulated extremely well that these things can be done differently and have a different outcome. I heard about case management directly from Liverpool Crown court. It has an aggressive approach to case management: it swept the cases and was clear whether it needed to be hearing a case or whether it could do any work to get a plea. It does a lot of work, and if every court was doing that, it would deliver different outcomes. The Minister might rightly point out that different courts have different circumstances, but surely the goal should be to correct those circumstances so that the positive things enabling some courts to bring the backlogs down can be done everywhere.
Linsey Farnsworth (Amber Valley) (Lab)
My point follows on from the powerful point the hon. Member is making about the need to look at good practice, which is something we should all get behind. Over my many years of working for the Crown Prosecution Service, I saw various schemes aimed at doing just that, but unfortunately, given that we are here today, they did not sort out the issue entirely.
Does the hon. Member recognise the evidence Sir Brian Leveson gave specifically about Liverpool Crown court, in which he cautioned against suggesting that that case could simply be replicated across the whole country? Liverpool Crown court deals with a single police force and Crown Prosecution Service, and has a very small local Bar that work together well. Although we would like it to be, that is not necessarily the case across the country. Does the hon. Member recognise that those circumstances are unique and may not be possible for the whole country?
Dr Mullan
Yes, absolutely. In the NHS, I worked on what we might call change and improvement programmes or quality improvement programmes. We worked hard to replicate the best clinical practice everywhere, but it is simply not possible to directly replicate everything that goes on in every unit, although that is not to say that we cannot do some of what goes on. As the hon. Member for Bolton South and Walkden pointed out, we are not talking about a single court; that is why I was clear about looking at this on a regional basis. I do not think that the data in any of these regions is getting better because of one court that has specific circumstances that cannot be replicated. That is why we have to show a high degree of interest in understanding what can be replicated and in trying those measures.
As we heard from the representatives of the criminal Bar and the circuit, we should give them a chance to try some of these things before we do something so unprecedented that will lead to a curtailment of rights. Nobody thinks that the other, positive parts of the Bill, or the measures that do not even require legislation, take away from anything else; they are just exceptionally positive things we could be doing where we do not pay some kind of price. Surely, we should try those before taking the step proposed in the Bill. Whether or not we think this step is reasonable—Labour Members have made it clear that they do—I doubt they think it will not lead to a loss in relation to jury trial rights.
Rebecca Paul
My hon. Friend is making a powerful point about the existing backlog starting to go down, and why it is important that we look at that and understand the impact that other measures are having. Does he agree that the recent change to suspensions for three-year sentences, which went live only a few weeks ago on 22 March, will decrease receipts to court, as it will increase guilty pleas? Whether that is good or bad is a totally separate debate, but it will surely reduce the backlog further.
Dr Mullan
Yes, and my hon. Friend did an excellent job of pointing out that although that might have been in some non-statutory documents, we do not know, because we do not have the details. We do not know whether that was included in the impact statement or the modelling that the Government have relied so heavily on to make their case. As I have said, it is extremely important that the Minister said, on the record, that there was no lowering of the backlogs in any of the regions. The data I can see suggests that there has been a quarter-on-quarter lowering of the backlog in three regions.
Alex McIntyre
For the sake of clarity for the whole Committee, is it not also true that quarter-on-quarter data generally shows a decrease in backlog between Q3 and Q4 in most years for which we have data, because there is a drop in receipts around that time of year? Does the hon. Member recognise that if we look at the data for the overall year, the backlog has been reduced only in the north-west, and by only 2%? If we reduced the backlog by 2% a year, it would take 50 years to clear.
Dr Mullan
I accept the first point. If the Minister had said, “Yes, there is a drop in the backlog in those three regions, but we tend to see that because of this,” citing the points the hon. Member made, we would be having a different discussion, but she did not say that; she said there was no drop.
On the second point, the hon. Member is also right: if that rate of drop was all we were ever going to get, it would not make a material difference to the backlog. That is why I was very clear that, if we are getting a drop, in a context where everybody agrees we are very early in the process and have done a fraction of the things we could do, it is important for us to look at it. If we were at the end of the process and had done all the things we all agree are positive and should be done, and that was the rate of return we were getting, we would be having a different debate. But we are not at the end of it; we are at the start.
Paulette Hamilton (Birmingham Erdington) (Lab)
I thank the shadow Minister; I am listening to what he is saying and I am finding it really interesting. But let us not forget that, until 2019, we had a backlog of something like 40,000, and that has now doubled to nearly 80,000. The Tory party was in power at that time and presided over all this. We are trying to make a difference. It has been said that everything that has been done is wrong, but I ask the shadow Minister why he did not bring in at least some of the preliminary changes that he says we should have brought in. At least then we would have some of those statistics to work from now that we are trying to make changes in the system.
Dr Mullan
I draw the Committee’s attention to my remarks at the outset of our proceedings: our judicial system, victims and defendants and how we manage crime in this country are my personal priorities. That is primarily the reason why I sought to be elected to this place, so I will never disagree that justice should get a higher priority than it has historically. I also pointed out that Labour Members more broadly have accepted that justice getting insufficient priority in our political system has gone on for many decades.
The hon. Member for Birmingham Erdington is right in pointing out the backlogs that existed prior to the pandemic, and they were actually lower than those we inherited from the previous Government. If we are talking purely about what happened with the backlogs, our record prior to the pandemic was an improvement on that of the previous Labour Government. That does not mean it is okay; that does not mean we say, “We did a great job,” but it is important, in balancing and understanding the debate, to know that.
In terms of what we did in relation to the covid pandemic and all the challenges it posed, we had uncapped sitting days and Nightingale courts, and we took steps to try to address the backlog. I served on the Justice Committee, scrutinising what the Government were doing at that time. I was very frustrated, because we would visit Nightingale courts and one of the biggest challenges they faced was the lack of certainty about whether they would be renewed in the future. I questioned Ministers at the time about that. To all of us on the Committee, on a cross-party basis, it was obvious that those courts would need to carry on for longer—why not just get on and agree that and let them run in that sustained way? There were many things we could and should have done better. That is not to say that we did not do anything or that, prior to the pandemic, our record did not compare favourably to that of the previous Labour Government.
As I said, in that particular example we introduced the innovation of making the provisional data available earlier. In June, given the challenges with that data being wrong on occasion, a decision was taken to temporarily stop publication, to see if we could close that gap. If that data is significantly different from the revised published data, there is sense in looking again at the methodology and seeing whether the gap between the provisional and final data can be closed. But here we are, almost a year later, and the Government have not chosen to reinstitute the publication of that provisional data. I think everyone on the Committee would benefit from seeing that data, so I would be interested to know whether that is the basis on which the Minister has said the backlogs in some regions are not going down, when in fact, from the evidence and data I have seen, they are.
Our amendments are aimed at delivering a fairer system. Amendment 23 also seeks to achieve that outcome, in a more specific but equally valid way. As my hon. Friend the Member for Reigate said, human beings in criminal cases are not neat, so we need a degree of flexibility. There is not flexibility in all parts of the system at the moment, but allowing a judge, on their own, in these types of cases, to allocate, hear the case, determine guilt and issue a sentence is unprecedented in our judicial system—
Linsey Farnsworth
District judges in the magistrates courts sit alone every sitting day and hear cases and trials. They then go on to sentence if that person is convicted, or to release them if they are acquitted. That happens every day, so there is precedent within our criminal justice system. District judges hear the most serious and complicated cases that go to the magistrates courts. So there is already precedent for this, and indeed in the youth court as well.
Linsey Farnsworth
I am afraid I have to disagree with the hon. Member, because the youth court has powers to sentence people for up to two years, so it already has higher sentencing powers than magistrates. Many of the cases we are talking about in the Crown court bench division would command a sentence of perhaps two years.
Dr Mullan
I covered that in earlier remarks, when I pointed out that those people are not adults, so it is a different set of circumstances. If the hon. Member is asking me to be ultra-specific—I am happy to be—what is proposed is unprecedented for cases of this nature, with adults, with these sentence lengths. That is, of course, the vast bulk of our justice system. There are lots of things that we do differently for children than we do for adults in the justice system. I am not familiar with arguments suggesting that those distinctions cannot be made, and that something we do with the youth custodial element or judicial process must therefore be perfectly acceptable with the adult estate. We do not do that.
Linsey Farnsworth
But the hon. Member is happy that youths are treated fairly in the criminal justice system, even if a single judge hears their case.
Dr Mullan
Again, we talked about this before. There are degrees of fairness. Specifically on whether a defendant will get a judge who is as fair as possible in terms of representation, understanding their background and so on, I think it is less fair than a jury system. But I made it clear that other factors are given greater weight in the youth court. For example, the intimidation that a young defendant might feel in the adult court versus the youth court is given greater weight. I might think overall that the deal, so to speak, for the youth defendant is fair and reasonable, but that does not mean that I cannot say that the absence of a jury might be less fair for a youth defendant in some regards.
Linsey Farnsworth
I think the hon. Member is saying this is a balancing exercise. It is about having a fair trial, but one that is equipped within our criminal justice system. That is exactly what the Government are doing here. Of course we need fair trials, but we also need a criminal justice system that is fair, and justice delayed is justice denied. That is not fairness. Would the hon. Member recognise that?
Dr Mullan
To use the word that the hon. Member used at the start of her intervention, it is a balance. We in the Opposition are clear that the Government have that balance wrong, which is why we oppose the measures. As I said, the Government want to have this both ways: on the one hand, when it suits them, they say that it is a balancing exercise, but on the other hand, when we point out flaws in the balance, they say, “Everything’s fine. You would be just as happy in a trial with or without a jury.”
The Government should be consistent. If the Government just said, “This is a balancing exercise. There will be some detriment to people as a result, but we believe that it is right”, and then stuck to that line, at least it would be intellectually coherent. The Minister might think that makes it a debating point, but I think it is pretty important in politics to be intellectually coherent. We take a different view from the Government.
The other point that we think is different, too, is that the proposal will not achieve the desired outcome. Even if we agreed, in theory, that the balancing exercise was correct and that the trade-off that the Government seek to achieve were a reasonable one to make against the loss of the rights that we are talking about, we do not think that the Government will get those outcomes. We therefore think that the Government’s argument is fatally flawed in two respects, which is why we continue to oppose the Bill.
As I said, fairness is important. We focused on the example where a first-time offender might end up with fewer rights in our judicial system than a repeat offender; in respect of, for example, loss of respect, reputation, employment or income, the person who has more at stake has their rights removed. That is a point made clearly by JUSTICE, which supports our amendment 39. JUSTICE states that the three-year threshold is likely to lead to outcomes that are seen as unfair by those within the system and by the public. Repeat offenders are more likely to qualify for a jury trial, because their previous convictions would push the likely sentence above three years, while first-time offenders committing the same offence may be denied a jury trial.
When we put that to Ministers, as I said, they say that it is perfectly fine for those people to have a trial without a jury, and that is fair. Ministers also say, however, that they are keeping jury trials for the most serious cases—but if they are keeping it for the most serious cases, they must at some level accept that it is a superior system in some way. Otherwise, why keep it for the more serious cases, as they define them? The Government cannot hold both positions coherently.
Absolutely, as I said, the core issue is fairness. The Government want to have it both ways in this argument, but of course the defendants will not get to have it both ways. The defendants will just have what they are told by the judge, without any ability to exercise their rights in the way that they think is fair or consistent with the broader point. We therefore continue to press our amendment 39 and that is why I ask Labour Members to think carefully; this might not be universal, but how many of them would feel happy if they—with their previous good character, and all the damage that could happen to their reputation and income from a conviction—were not allowed to have the option of a jury trial? I cannot say for sure, but potentially some of them might feel differently then.
The Minister for Courts and Legal Services (Sarah Sackman)
It is a pleasure to serve under your chairship, Dr Huq. I thank my hon. Friend the Member for Bolton South and Walkden and the hon. Member for Bexhill and Battle for their amendments. I will address amendments 23 and 24 first.
The test for the clause is framed intentionally framed around a single condition: the likely sentence. We are ensuring that jury trials are preserved for the most serious offences. Under proposed new section 74A, indictable-only offences will always be tried by a jury. In all other triable either-way cases, the likely sentence provides the clearest and most objective way of identifying seriousness, ensuring that cases where the likely sentence exceeds three years’ imprisonment or detention are heard by a jury. That follows recommendation 30 of the independent review of the criminal courts.
That is already a feature of our system—every day, magistrates courts determine allocation by assessing the likely sentence on conviction. The clause applies that well-established approach in the Crown court; it is not, in that sense, a departure from the current system, but a consistent extension of it. We do not exclude broad categories of defendants from such an assessment in the existing system, and nor do we intend to do so under the reforms. Doing so would risk undermining the impact that the reforms are designed to deliver.
As such, the test does not introduce separate gateways based on the personal characteristics of the defendant; it is focused rather on the seriousness of the offending. Introducing such gateways would remove a significant number of cases from scope. Nearly a quarter of those convicted in the Crown court are first-time offenders, and these amendments would carve out even more cases than that, as they include wider defendant-specific factors, thereby undermining the purpose of the creation of the Crown court bench division, which is to ensure more efficient processing of cases to reduce the overall backlog on a sustainable basis.
As a general rule, those defendants are not given automatic priority in procedural decisions; case management decisions, such as on adjournments, disclosure directions and trial scheduling in the Crown court, do not tend to turn on the characteristics of the defendant. The amendments would change that approach by determining mode of trial by a number of independent defendant-specific factors. Every defendant in the Crown court will receive a fair trial, and that is not affected by the mode-of-trial decision. We have confidence in our judiciary, who take a formal judicial oath to act independently, impartially and fairly.
Sarah Sackman
As I have said consistently throughout this debate, we regard jury trials as a cornerstone of British justice. They are part of our legal culture, for all the reasons that Members on both sides of the House have articulated, and we do see a role for citizen participation in our justice system, not least to preserve its legitimacy. But what corrodes the legitimacy of our justice system is a backlog in which we see appalling delays, causing people to lose faith—whether they are witnesses, complainants or indeed defendants—and to pull out of trials. That is corrosive of trust in our justice system. We therefore of course want to preserve juries for our most serious cases. But trust in a system is built on many foundations, and the timeliness and proper administration of that system, including the proper resourcing of the system—which was not the case in the previous 14 years—is paramount when it comes to trust in the system.
Sarah Sackman
The premise of not just these amendments, but amendments that we have already debated, is that other tiers of the system, whether that be the magistrates court or the proposed Crown court bench division, somehow offend the principles of natural justice. The principles of natural justice are essential; they are foundational. They are based on impartiality, freedom from bias and fair process. All those things are guaranteed under our current system in the magistrates court, and would be guaranteed in a judge-only trial, as articulated by my hon. Friend the Member for Amber Valley; district judges make those decisions on a daily basis.
The hon. Member for Bexhill and Battle wants me to say that, somehow, this would be a lesser justice. I will not say that. I am recognising that there is something special about jury trials—of course there is; it is why I have said consistently that they are a cornerstone of our legal system—but we have to deploy what is a very particular resource that demands a great deal of jurors. We have not spoken about jurors all too often in this debate, but there is something called jury burden. That is why, as we will hear when we come to the clauses that deal with judge-only trials for long and complex cases, particularly for fraud, which place a huge burden on jurors, often with cases lasting months on end, we have to use that resource and deploy it carefully.
However, as I have said repeatedly, and I will say it again, the state’s obligation at every level of the justice system, at every level of seriousness, is to guarantee an individual defendant a fair trial that upholds the principles of natural justice, which is what the hon. Member’s amendment actually focuses on. I am firmly of the view, and the Government are firmly of the view, that, whether by lay magistrates, by judge alone or by a judge and jury, our system upholds those principles of natural justice and is therefore fair throughout.
Mr Paul Kohler (Wimbledon) (LD)
I have listened patiently to the Minister’s arguments for two sittings. She said something that I really do want to ask her to reflect on. She has talked about jury burden, and about the fact that it is important for confidence that the citizenship takes part in the system. The Minister and the Government are seeking to halve the number of jury trials, and therefore halve the number of times that members of the citizenship will actually take part in juries and in the criminal justice process. Does she not see that that undermines the whole system? Many people will not now have a chance to take part in juries and that is a crucial thing. Talk to anyone who has been on a jury, and they will say that they hated the idea when they were called up for it and loved it afterwards because they have actually taken part in the system. The Government are halving the possibilities of people doing that.
Sarah Sackman
I do not accept the premise or assumption that everybody has a positive experience of the criminal justice system when they participate in a jury. As the Minister for Courts, I do thank all of those who perform their civic duty. However, when asking people to do that, we must ask them to do it in a way that is fair and proportionate to them, as well as to the other participants in the system—not least the defendants in indictable-only cases and those that, under these reforms, attract a sentence of three years or more.
Cases can and do sometimes evolve as they progress through the courts. Proposed new sections 74B and 74C of the Senior Courts Act 1981 make clear provision for cases to be re-allocated to a jury trial, where the seriousness increases even after a judge-only trial has begun. The basis of these reforms is to ensure that cases are allocated according to the seriousness of offending, with jury trial preserved for the most serious cases.
Paulette Hamilton
I am learning so much from these sessions. I have a question on choice. Many people feel that the removal of choice is a real problem. Can the Minister explain why that choice is not being given to people who feel that they need it because they feel that the system is working against them? How will they feel that they have that choice even without a jury present?
Sarah Sackman
It is a good question and one that we touched on in our earlier debate in the context of clause 1, where we were discussing the proposal to remove the defendant’s right to insist on their choice. When we step back and look at the entirety of the system, if a person is charged with a summary-only offence that will be considered by the magistrate, there is no choice; you are allocated directly to a trial by the magistrate’s jurisdiction. If a person is charged with an indictable-only offence—a more serious offence—there is again no choice and that person goes to the Crown court whether they like it or not.
Under our system we have this feature of triable either way, where we extend the choice to defendants in a category of cases that we, as a society, have chosen. As I have said, lots of other jurisdictions—and I use the Scottish one as an example because it is proximate—do not have this feature. In many ways, when I came to this debate and to reflect on the policy choices that we might make, driven by the critical—dare I say emergency—context in which we find ourselves, this feature of our system seemed to me quite strange. I cannot deny that it is a choice that people have obviously enjoyed and utilised, with many opting for Crown court trials even when the seriousness of their case meant that it could have been dealt with a lot more swiftly and efficiently in the magistrates court.
We know that people are making those choices, so there must be a reason for that the preference. It might be driven by lots of things: because of confidence and also presumably because people think that they will get some advantage and perhaps a better chance of being acquitted if the trial is heard in the Crown court. However, it is strange when thinking about public services and how we triage and ration what is ultimately a limited resource.
That is why I use the health analogy—and not just because my hon. Friend the Member for Birmingham Erdington is so experienced in that field. When we think about how we triage finite resources within the NHS, we give patients choices around their healthcare, but ultimately the triaging is done by the experts. In this context, the expert is the court. The court knows, based on the seriousness of the offence, what mode of trial is most suitable in the context. Under these reforms, we are saying that it is the court that should decide, rather than the defendant being able to insist on their choice, even if that choice comes at the expense of the complainant, who might end up being the victim in the case, and needlessly dragging things out.
We must be honest and pragmatic. It seems to me a quite unusual feature of our system that it is the defendant that always has the right to insist when, in lots of contexts, the defendant does not get a choice. It is only in this narrow cohort of cases that they do.
Dr Mullan
I have a background in healthcare. The Minister has talked about triage being led by healthcare professionals, but there is another side of healthcare where people can insist on choice. This Government have introduced Martha’s rule, where the family member can not only insist on choice, but override what the treating clinical team think is the right course of treatment. They are given a route to go around them, to call someone, to insist that they are wrong and that they fundamentally disagree with them, and to get somebody else in who will challenge what the consultant in charge of the patient thinks is right. The Minister points to one element of the healthcare system where the state has a greater degree of control, but does she accept that there are other aspects of the healthcare system where we allow people to override what the healthcare team want to do?
Sarah Sackman
I do not want to labour the analogy—forgive the pun—but in many senses, we do allow that. Under this system and the reformed system, we preserve the right of the defendant to appeal. Having allocated the trial to the venue, be it judge-only or the magistrates court, if the outcome is perverse in some way or the defendant takes issue with it, they can appeal the verdict, provided that there is a proper legal and rational basis for doing so.
Tristan Osborne (Chatham and Aylesford) (Lab)
The Minister cited Scotland as a good example within the United Kingdom. Scotland has seen a significant drop in the backlog of cases over the last several years, partly as a result of the system that she has explained. Does she think that the modelling within our country—some of the best practice we have seen in Scotland—might be a solution for England and Wales?
Sarah Sackman
I think there is some consensus here. We are all extolling the virtues of our system. As the Minister with responsibility not just for courts, but for legal services more generally, promoting our legal services and courts around the world, I am very proud of that. Being proud of our system in England and Wales, however, does not mean that there are not things that we can learn from other jurisdictions, particularly where they are producing better outcomes in timeliness or in the treatment of minorities, women, rape and serious sexual offences. It is why I went to Canada to learn from practitioners and judges there. We will take the lessons from wherever we find them. I will pick up later on the point about regional differences, because we must always learn lessons, whether internationally or closer to home.
Jess Brown-Fuller
We heard oral evidence from Doug Downey, who talked about the Canadian system. He also talked about how the right to elect is a protected characteristic of their justice system. The difference is that they have the right to elect a judge-alone trial. Did the Minister explore the option of maintaining the right to elect, but allowing defendants to choose whether they would like to have their case heard in a Crown court bench division with a judge alone?
Sarah Sackman
The hon. Member asks a typically great question. We did think about it. I am well aware that the right to elect exists, once a defendant is in the superior court in Canada. We considered whether the right to elect to go before the Crown court bench division should be included as part of the reforms. The reason we did not, and the reason why these reforms are predicated on the consistent principle that it is for the court to determine mode of trial, is partly about the balance we wanted to achieve within the system between defendant rights and the rights of other participants—I am wary of using the word victim—or complainants within the system.
We received representations from many complainants and people who have been victims of crime, and those who represent their interests, such as the independent Victims’ Commissioner and London Victims’ Commissioner. Many felt that it was so often the defendant’s choice and right to insist on choice that was driving the process and was part of an imbalance in the process. There is both a pragmatic element to our choice, because we think that by introducing a new Crown court bench division we will save time and speed up the processing of trials, and a normative principle behind it, which is about who is in the driving seat in these decisions. We think it should be the court and not always the defendant.
Matt Bishop (Forest of Dean) (Lab)
We have heard from Opposition Members this morning about how defendants should have confidence in the system and about choice and being fair, whether it is in magistrates courts or Crown courts. On the point the Minister has just made, is it not right that victims and witnesses should also feel confident in the system? The only way to achieve that is by levelling things up, because ultimately victims do not have a choice about which court cases are heard in. Witnesses do not have any choice in the matter whatsoever. By doing both, we could get better confidence among every member of society, rather than just defendants.
Sarah Sackman
We do think this is the right balance, which is why we brought it forward. It is the test that was recommended to us by the independent review and we think it is a considered, objective and balanced test. We are bringing it forward because we think it is the right one. Expanding the test for—
Sarah Sackman
I have to make progress. Expanding the test for eligibility beyond seriousness would dilute the focus and risk undermining both the clarity of the allocation framework and the savings these reforms are designed to deliver. I therefore urge my hon. Friend the Member for Bolton South and Walkden to withdraw her amendment.
Amendment 39 would introduce a new route to jury trial, where the defendant demonstrates to the court that the circumstances of their case are such that to be tried without a jury would amount to a breach of principles of natural justice. As I have already said and sought to reassure the Committee, those principles of natural justice are, I believe, preserved in the reforms. Those include the right to a fair hearing, the rule against bias and the duty to act fairly and to give reasons where required. As such, I do not consider that the amendment would add substantive protection beyond the safeguards already in place.
I want to pick up on one or two of the points raised earlier in the debate. There was an exchange between the hon. Members for Reigate and for Chichester relating to change of circumstances. That is dealt with in clause 3, which makes provision that where a charge is added to an indictment—an indictable-only charge—the case would be reallocated to a jury trial. Similarly, there are change of circumstances provisions where there is material new evidence meaning that the judge can make a decision that a case should be more appropriately heard before a jury. That is provided for and is intended to meet the sorts of complex scenarios that both hon. Members raised.
The hon. Member for Brighton Pavilion raised again with me the issue of jury equity. I have heard the arguments. I have listened carefully to her as she has raised them on a number of occasions and I listened to the witness who raised them as well, but we do not think it is appropriate to make a specific carve-out for a specific category of offences in this context.
Finally, the hon. Member for Bexhill and Battle raised again with me the argument that we either do not need to do any of this, or we should wait to see how our other measures pan out—the huge investment in lifting the cap on sitting days and in legal aid, the workforce and the efficiency drive.
Siân Berry
I appreciate the Minister’s comments, but will she clarify what she meant by a particular category of offence? I could not have been clearer in my speech that I did not want to make an exception for protesters. I spoke specifically about people being prosecuted in cases where it was the powerful versus the underdog. Will she clarify what it is she is rejecting?
Sarah Sackman
I am rejecting the addition of any other carve-outs or exceptions beyond the test of seriousness that we lay down in these measures, which is dictated by the likely sentence, the test proposed by the independent review of the criminal courts.
Dr Mullan
The Minister said earlier, and she just said again, that it was the test recommended by the independent review. But if we are being specific, the test that was recommended was two years. The Government have made the test three years, so it is not the test that was recommended. It is important that the Minister does not repeat that inaccurate phrase.
Sarah Sackman
The point that I was making is that it should be the seriousness of the case that is the sole dictator of the mode of trial, and that likely sentence is the best and most objective test that we have. We must also be mindful of how we administer a system. Sometimes, adding lots of tests not only leads to complexity and introduce uncertainty, but introduces one of the things that we are trying to eliminate—delay. If we have a straightforward, well-understood test that is consistent with the sorts of allocation decisions that magistrates routinely make, we can apply that test consistently.
Returning to another point that the hon. Member for Bexhill and Battle made in relation to necessity, we maintain that we have a serious, nationwide problem. We maintain that that the national overall backlog of 80,203 outstanding cases in the Crown court, as it stood in December 2025, is an emergency. The central projection for the number of sitting days we are likely to need in very short order is 139,000. If I took an optimistic view that the central projection was too high, even in a low scenario we would need 130,000 sitting days. That is not to say that there are not, on a short snapshot basis, parts of the country that are doing better. I have given evidence to the Justice Committee where we have looked at that. Historically, there are parts of the country—Liverpool and Wales are often cited—that have lower backlogs. But there is no doubt that as a national picture—we do not want a postcode lottery in our justice system—the situation needs tackling.
Yasmin Qureshi
I think I am possibly the oldest person in this room. As somebody who was prosecuting, defending and dealing with criminal cases back in the late ’80s, ’90s, 2000s and so on, I saw the criminal justice system at first hand. When I started practising at the Bar, we had full legal aid at all levels, so whenever defendants appeared in the magistrates court they had proper advice. We had section 6(1) type of committals, where we could test the prosecution evidence and therefore get rid of a number of cases. We had full courtroom sittings; if Snaresbrook Crown court had 15 courtrooms, 14 or 15 of them were running. We had a full capacity of judges running and we did not have a backlog of jury cases. Will the Minister please rethink? The reason we have delays in our court system is not because of the juries.
Sarah Sackman
If I may say so, and as long as it is not indiscreet, my hon. Friend seems far younger and more energetic than she claims to be. She makes an important point because she does have long-standing experience in this area; before she came to this place she practised for a long time. I do not know when my hon. Friend finished practising, but we know that—it is one of the central insights of the independent review—the average jury Crown court trial is taking twice as long as it did in 2000.
That increase is driven by a greater complexity in cases and the changing profile of crime. As I have said before, we now have forensic and CCTV evidence, and also—this is something to commend people from previous Parliaments for—procedural safeguards put in place over time that rightly create a fairer system, such as the Police and Criminal Evidence Act 1984. All that is adding to the length of jury trials.
As Sir Brian Leveson himself said, juries are not the driver of the problem, but it is true that jury trials and Crown court trials are taking longer and longer. That is not about to change, and it will not be changed by whatever measures one may bring forward in relation to speeding up prisoner transfer or case progression. The fact that jury trials take up 60% of the hearing time within the Crown court is exactly why the independent review asked us to look at it. I understand the picture my hon. Friend paints of the world we want to live in, but the world we live in now has been transformed and it is the job, particularly of progressives, to move with the times and to build a system that is fit for the profile and technology that we now encounter.
Rebecca Paul
It is clear that the Minister honestly believes this change will address the backlog. I do not doubt her sincerity—we believe differently, but I understand that that is what she believes. What concerns me is this: how many miscarriages of justice is she happy to accept in order to bring down the backlog? Why on earth, when miscarriages of justice are clearly going to happen as a result of these measures, are they not mentioned in the impact assessment? It makes no mention of one downside being a potential miscarriage of justice. I find that astonishing.
Sarah Sackman
Miscarriage of justice should concern us all. That is why I am happy to see the responsibility for looking into miscarriages of justice being given to the Criminal Cases Review Commission under the leadership of Dame Vera Baird. She gave evidence to the Committee, and her support for these measures is notable. I am not sure why the hon. Member for Reigate thinks that miscarriages of justice will increase under them; there is no evidence for that. One miscarriage of justice is, of course, one too many, but I do not accept the premise of her question, which is that the reforms introduced by this aspect of clause 3 will somehow lead to an increase in the number of miscarriages of justice.
Dr Mullan
The hon. Member for Bolton South and Walkden highlighted the Post Office scandal. She talked about those involved in that case as an example of people who supported the defendants feeling that there was a risk of greater miscarriage of justice, so it is not a proposition that my hon. Friend the Member for Reigate has plucked out of thin air. Other people with direct experience of these matters think that is a risk, so would the Minister at least accept that it is a valid concern?
Sarah Sackman
The circumstances of the Post Office Horizon scandal are incredibly serious. Part of the reason why they came about is because people were essentially fabricating evidence and using computer evidence in a way that was fundamentally dishonest. However, I do not think that the reform that we are talking about in this context, which is the allocation test, or mode of trial, and allocation to a Crown Court bench division should of itself reduce the confidence that the public can have in the integrity of our justice system. For all those reasons, and the way in which clause 3 is drafted with a focus on delivering swifter justice for victims, witnesses and defendants alike, I urge the hon. Member for Bexhill and Battle not to press amendment 39.
Yasmin Qureshi
There has been a lot of discussion about the amendments. As I said on Tuesday, I will not be pushing my amendments to a vote. They are meant to be probing amendments, and I hope the Government will still look at them and consider what has been said.
I wish to talk about a few issues that have been raised. We have heard it mentioned that Scotland does not have a jury system, but it has never had a jury system, so we are measuring different things. Scotland also has its own unique system. For example, it has an in-between verdict: there is not guilty, guilty and something in between. Scotland has its own legal system, but our system has been the jury system for hundreds and hundreds of years. We either think the jury system is good and we keep it for either-way or indictable offences, or we think the jury system is so cumbersome and so bad that we should abolish it altogether. Then we can have a different argument, and we do not have to have it even for indictable offences. What we cannot have is indictable offences and either-way offences being dealt with differently. I respectfully disagree with the Minister.
Dr Mullan
The hon. Member is doing a good job of highlighting the whole additional set of complexities of the new system. We cannot predict how those are going to pan out. She referenced the separation of what a judge will hear and what a jury will hear, to preserve the fairness of the jury’s sentiment. We are now going to be in a position to a much greater extent—it might happen in other courts and other circumstances—where the judge has to hear material that is not going to be deemed relevant to the finding, and then make a finding. I am sure that there is going to be a whole new set of case law, with challenges where defendants and potentially prosecutors will say, “That clouded the judgment. That made the judgment unsound.” There is unpredictability and greater complexity in using this system.
Yasmin Qureshi
Yes, absolutely. At the moment, one of the beautiful things we have is that the judge determines sentence and directs on law, and the jury decides on the innocence or guilt of a defendant. It is fantastic, because that also protects the judges.
In a system where judges are going to be dealing with Crown court cases—we will come on later to complex cases and fraud cases, where they are going to be spending months and months on cases—the judges are going to have to write very long decisions. This is not similar to a district judge in a magistrates court, where the average trial takes maybe half a day or a day, two or three at the most. That is normally the limit.
In the Crown court, the average trial date is two to three days or five days to a week. The judge is going to be writing up all that evidence; because he or she will have to make the decision at the end on innocence or guilt, they have to pencil their decision in a very detailed way, covering not just the law, but an assessment of each witness who gave evidence—for example, “I accept the evidence of that witness because of this, this and this; I don’t accept the evidence of that witness because of this, this and this; this witness is unreliable because of this, this and this.”
All of that will have to be included; if it is not, the defendant who is found guilty will want to appeal, and so the judge is going to spend ages writing decisions.
Sarah Sackman
I appreciate that my hon. Friend was not present for all the evidence sessions, but I wonder whether she would reflect on the evidence we heard from Clement Goldstone, who was the recorder at Liverpool. He said:
“I also do not accept that there will be additional time spent in the writing of judgments. The vast majority of decisions will follow the conclusion of the defence speech”.––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 76, Q161.]
Judges give a route to verdict in any event, so it is all part of the summing-up process.
Yasmin Qureshi
I understand that in some of the more simple, routine cases of two or three days, but for trials lasting eight, nine or 10 weeks, I respectfully disagree that judges can come to that judgment in just a few days, because they have to go through a whole load of evidence, comment on it and come to a decision.
Joe Robertson (Isle of Wight East) (Con)
The hon. Member speaks with eloquence and experience. I understand the Minister’s point: she has framed this as simply removing a choice from a defendant, as though this is a benefit that need not exist, but does the hon. Member agree with my analysis that this constitutes the removal of a right rather than a choice—the right to be tried in the Crown court, unless trial in a magistrates court is preferred?
Yasmin Qureshi
I do agree. It is important to remember which offences are kept in the magistrates court. There was discussion on Tuesday about burglaries and other offences making it to a magistrates court. With respect, burglaries have never been reduced to being tried in a magistrates court.
What happened was the way that motor theft offences were tried was tweaked. What used to happen is that people, particularly youngsters, would take away a car and were charged with the theft of a car, but as everybody knows, the definition of theft includes intention to permanently deprive. Those people never had the intention to permanently deprive; they were just taking the car for joyriding, and they were then going to leave it somewhere else.
That is why a new offence was introduced: it was initially called TWOC—taking without owner’s consent—and then it became TDA, or taking and driving away a motor vehicle without the consent of the owner. That offence went down to the magistrates court, because it was seen as a misdemeanour—something that a young person might do—and was not the same as giving someone a theft conviction. We had to make some changes, which were very sensible changes. Look at all the cases being dealt with in magistrates courts at the moment: any charge that goes to the issue of honesty is still either-way or indictable.
Linsey Farnsworth
No, but it could very well come down to credibility. My hon. Friend is suggesting that no offences in the magistrates court would come down to credibility, or am I misunderstanding her point?
Yasmin Qureshi
I was giving the example of TDA and theft legislation. I was talking about offences involving dishonesty, such as theft and burglary or defrauding someone. Even producing a fraudulent insurance document is an either-way offence, because it involves dishonesty. Even now, producing a dodgy insurance certificate is not a magistrates court offence; it is still an either-way offence, because of the element of dishonesty—not in the sense of people saying different things but in terms of intent. That is what I am talking about—not what my hon. Friend was saying.
Linsey Farnsworth
I recently introduced the criminal offence of unauthorised entry of a football stadium. That is a summary-only offence. There are examples in the magistrates court where credibility and dishonesty are key points of summary-only offences.
Yasmin Qureshi
My hon. Friend is comparing apples and pears. Entry of a stadium that someone is not entitled to be in is not the same as being charged with stealing, even in minor instances, such as stealing a bottle of water. They are two different things. For example, entering enclosed premises is dealt with in a magistrates court. There are different elements involved. What is at stake if I steal a bottle of water? That is very different from entering a stadium that I am not meant to be in.
We have had a good discussion. I still ask the Government to look at my amendment. As I have said from the beginning, I will not put it to a vote, but I am asking them to consider it. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 39, in clause 3, page 5, line 26, at end insert—
“or,
(c) the defendant demonstrates to the court that the circumstances of his case are such that to be tried without a jury would amount to a breach of the principles of natural justice.”—(Dr Mullan.)
This amendment would ensure that trials by jury continue for indictable offences carrying a sentence of less than three years in prison if the defendant can demonstrate that it would be in the interests of natural justice.
Siân Berry
On a point of order, Dr Huq. I alerted the Minister earlier to the fact that I was going to say this. I want to ask what can be done to correct the record in respect of the Minister’s comments about a case that I referred to in my speeches on Tuesday and that Tim Crosland referred to during evidence. On Tuesday, the Minister said that
“some of the cases he mentioned, including the Elbit Systems trial, which the hon. Lady mentioned, contained an indictable-only charge, meaning that the case would receive a jury trial, as that one did in fact.”––[Official Report, Courts and Tribunals Public Bill Committee, 14 April 2026; c. 140.]
I am afraid that the Minister was referring to a different case from the one I was referring to. The recent case that has been in the news surrounding a retrial was related to a break-in at Elbit Systems in August 2024. The November 2022 jury acquittal that I referred to was about protesters who threw red paint symbolising blood at the London headquarters of Elbit Systems in October 2020. In that case, none of the offences was indictable-only; they were all related to criminal damage. I just wanted to put that on the record, and I hope that the Minister will accept that correction to her comments.
Sarah Sackman
Further to that point of order, Dr Huq. I am happy to respond. We were probably at cross purposes. There was obviously a very high-profile case, which is the one that I thought the hon. Lady was referring to when she mentioned Elbit Systems. That did involve the indictable-only charges of aggravated burglary and grievous bodily harm with intent, but if she was referring to a different case and we were at cross purposes, I am happy to correct that aspect of the record.
Ordered, That further consideration be now adjourned.—(Stephen Morgan.)
Representation of the People Bill (Eighth sitting)
Thursday 16th April 2026
(1 day, 13 hours ago)
Public Bill CommitteesRead Full debate Representation of the People Bill 2024-26 View all Representation of the People Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 16 April 2026 - (16 Apr 2026)
The Committee divided: - Ayes: 3 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 10 - Question accordingly negatived.
The Chair
Good morning. Could everyone ensure that electronic devices are turned off or switched to silent? We will continue line-by-line scrutiny of the Bill. The selection list for today’s sitting is available in the room and on the parliamentary website; this shows how the clauses, schedules and selected amendments have been grouped together for debate.
A reminder: a Member who has put their name to the lead amendment in a group is called to speak first, or, in the case of a stand part debate, the Minister will be called first. Other Members are then free to indicate that they wish to speak in the current debate by bobbing. At the end of the debate on a group of amendments and new clauses or schedules, I shall call the Member who moved the lead amendment or new clause again. Before they sit down, they will need to indicate whether they wish to withdraw the amendment or new clause, or to seek a decision. If any Member wishes to press any other amendment in a group—that includes grouped new clauses and schedules—to a vote, they need to let me know. The order of decisions follows the order in which amendments appear on the amendment paper.
Finally, for your information, the House’s official photographer will be present during this morning’s sitting—I hope you are all dressed in your best—in order to record the work of Hansard colleagues and to take some wide shots of the Committee in action. I hope no one has any objections.
Clause 70
Hostility towards officers and their staff
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 38, in clause 71, page 92, line 35, after “candidates,” insert “candidates’ relatives, candidates’ staff,”.
This amendment would, with NC55, include family members and staff of candidates as people towards whom hostility would be treated as an aggravating factor.
Clauses 71 to 74 stand part.
New clause 55—Hostility towards relatives and staff of candidates etc.
“(1) Part 5 of the Elections Act 2022 (disqualification of offenders for holding elective office etc.) is amended as follows.
(2) After section 32 (candidates etc.) insert—
‘32A Relatives and staff of candidates
(1) A person falls within this section if the person is—
(a) a relative; or
(b) a member of staff;
of a person described in section 32 (candidates etc.).
(2) For the purposes of subsection (1a) “relative” has the meaning given by section 63(1) of the Family Law Act 1996.
(3) For the purposes of subsection (1b) “member of staff” means a person who is employed by or working under the direction of a person described in section 32 (candidates etc.).’”
This new clause would, with Amendment 38, add relatives and staff of candidates to the persons against which hostility may lead to a disqualification order and for the purposes of a statutory aggravating factor.
The Parliamentary Under-Secretary of State for Housing, Communities and Local Government (Samantha Dixon)
It is a pleasure to serve under your chairship, Dame Siobhain. I will speak to clauses 70 to 74 first, and we will come to the amendments tabled by the Liberal Democrats later.
Harassment and intimidation of voters, electoral staff and campaigners, both online and in person, is unacceptable and has a profoundly detrimental impact on the UK’s democratic processes. We know that electoral staff faced unacceptable abuse and intimidation during the 2024 general election. That is why we are extending the scope of the disqualification order to ensure that electoral staff are provided with the same protection as candidates, campaigners and elective office holders.
Clause 70 will enhance the disqualification order’s ability to protect those who participate in public life, and those who play a crucial part in the administration and delivery of elections. It will also act as a deterrent, signalling that intimidatory behaviour is a serious matter that must not be allowed to damage our democracy.
It is clear that more must be done to tackle the abuse and intimidation directed at those who participate in elections and political debate. While disqualification orders are a key part of tackling the unacceptable harassment and intimidation of those in public life, they do nothing to prevent those who have no interest in standing as a candidate from engaging in intimidatory or abusive behaviour. Clause 71 introduces a new statutory aggravating factor, which will empower courts to apply an uplift when passing sentence for an offence linked to intimidation. This is where the offender was motivated by hostility towards candidates, campaigners, elective office holders and electoral officials and their staff.
Clause 72 introduces this new statutory aggravating factor in Northern Ireland, and amends the location of the pre-existing Scottish aggravating factor. This is a significant new deterrent for those who seek to damage the UK’s democracy or intimidate those who uphold it, and will ensure that anyone who does so will be subject to appropriate criminal justice penalties.
Let us turn to clause 73. Disqualification orders were introduced in the Elections Act 2022, to be imposed on offenders throughout the UK who commit crimes of hostility against electoral candidates, campaigners and officer holders. Scotland introduced Scottish disqualification orders in the Scottish Elections (Representation and Reform) Act 2025, which gave similar protection to a fourth category: Scottish electoral officials. The Bill extends the scope of the disqualification order in the Elections Act 2022 to protect electoral officials throughout the UK, but Scottish electoral officials will continue to be covered by the Scottish legislation.
To ensure that there is a fully reciprocal relationship between disqualification orders in Scotland and the rest of the UK, the Bill also applies the effect of Scottish disqualification orders to relevant elective offices throughout the UK. That ensures that if someone is disqualified from standing for or holding office in Scotland, they will also be unable to stand for or hold office in the rest of the UK, and vice versa.
That will ensure a consistent approach throughout the UK for intimidatory behaviour towards those who participate in public life. If a person is convicted of specific criminal offences, motivated by hostility towards candidates, future candidates, substitutes, nominees, campaigners, holders of relevant elective office or electoral officials, they will be prohibited from standing for or holding office for five years across the UK. Clause 74 builds on the measures introduced in clause73, and makes amendments to various pieces of legislation to apply the Scottish disqualification order to relevant elected offices across the UK.
Paul Holmes (Hamble Valley) (Con)
Good morning, Dame Siobhain; it is a pleasure to serve under your chairmanship. Thank you for the information about a photographer being present; had I known, I would have had a shave this morning. Normally, we can only be heard in audio and, as my mother says, I have a face that only a mother could love.
We welcome the Minister outlining the parameters of the clauses, and welcome the fact that the Government are taking the safety of election staff seriously. They are public facing, and work with us on an equal basis to ensure that democracy works. We therefore strongly welcome the fact that the Government are extending these protections to election staff. Officer teams across the whole country are very busy at the moment; we know that from our various involvements with election returning officers, and the election staff who are making sure that everybody who is entitled to vote can do so via different methods.
When an officer reads out the results on television, and faces an inquiry from somebody who they do not satisfy, that can spur on the kind of attacks and threats that we receive as publicly elected officials. It is therefore absolutely right that such officers should enjoy the same protections that we do. As I say, the Government should be congratulated on taking this matter seriously.
It therefore makes perfect sense to amend the sentencing code for England and Wales in clause 71 regarding offences that have been committed under the Elections Act 2022, so that going forward this can be treated as an aggravating factor. Of course, it is also perfectly sensible that the provisions apply to Northern Ireland, too.
We strongly welcome the Government’s action on this; it should be supported by everybody. I wanted to put it on the record that the Minister should be congratulated for it.
Zöe Franklin (Guildford) (LD)
It was very good to hear from the Minister setting out this group of clauses. The Liberal Democrats are very pleased it seeks to address the hostility towards those who administer our elections. As colleagues on the Conservative Benches and the Minister have outlined, they play such an important part in our democracy.
Amendment 38 and new clause 55 in my name address the need for there also to be protection for the families and staff of candidates. I was a member of the Speaker’s Conference, and I would like to put it on record how pleased I am to see so many of its recommendations in the Bill. We considered in quite some depth the issue of abuse of candidates.
The survey of MPs and their staff highlighted the nature of the abuse and intimidation they experience, and the sad reality that it is not limited to them. Rather, where a bad actor is unsuccessful or unable to silence the candidate directly, they turn to the people around them. That can be partners, children or staff. We firmly believe that should not be deemed to be okay in the eyes of the law, and that it needs to be addressed.
New clause 55 amends the Elections Act 2022 so that relatives and staff of candidates are a protected category for the purposes of hostility-based disqualification and related provisions, defining “relative” by reference to the Family Law Act 1996, and “staff” as people
“employed by or working under the direction”
of a candidate. Amendment 38 amends clause 71 of the Bill to include candidates’ relatives and staff in the list for the hostility aggravating factor.
I hope that the Minister and the Government will support those important provisions. If they do not, could the Minister please outline how the Bill as drafted already covers candidates’ relatives and staff, or what the justification is for leaving such a gap?
Dr Ellie Chowns (North Herefordshire) (Green)
It is a pleasure to serve under your chairship, Dame Siobhain. I rise briefly to say that I fully support these measures, which are clearly welcomed across all parties. I also support the comments of the hon. Member for Guildford in relation to extending the measures further, because by definition, anybody who is essentially associated with the political process is potentially subject to the hostility that we have discussed. Extending those protections is clearly important.
Samantha Dixon
Those who are convicted of relevant offences motivated by hostility against a candidate, campaigner or elective office holder can be banned from standing for or holding elective office for five years. As I have set out, the Bill will also introduce a new aggravating factor for those same offences and extend the regime to include relevant offences motivated by hostility against electoral staff.
Amendment 38 and new clause 55 would extend the list of relevant persons to include candidates’ staff and their relatives. I am pleased to inform the Committee that the regime already covers those circumstances. The application of the existing disqualification order and new aggravating factor is based on the motivation behind the offence committed, regardless of precisely who the offence was committed against. For example, if it were found that a relevant offence was committed against a candidate’s relative for the purpose of intimidating the candidate, ultimately the offence was motivated by hostility towards the candidate, and thus a disqualification order or aggravating factor could be applied.
Regarding employees of candidates specifically, I draw the attention of the hon. Member for Guildford to the fact that campaigners employed by candidates are already directly protected under the regime by section 34 of the Elections Act 2022. Other employees would be covered indirectly in the same way that I have outlined for a candidate’s relatives. I hope the hon. Member is reassured by that and will consider not pressing the amendment.
Paul Holmes
On new clause 55 and amendment 38, I understand why the hon. Member for Guildford, the Liberal Democrat spokesperson, is attempting to change the legislation.
The Minister may remember that we had a back-and-forth in relation to the security briefings being offered to candidates through Operation Ford, and the Government’s amendments. Has she given any more thought to a statutory timeline, and guidance on making sure that candidates are offered those briefings in a reasonable timeframe so that nobody slips through the net because the police force has not got around to it? That may inform the decision of the hon. Member for Guildford regarding whether to press the new clause and amendment to a vote.
Samantha Dixon
The Government’s view is that the Electoral Commission is working hard, and that to prescribe timetables would place a restriction on it that we do not feel is required. Given the good, proactive work that it already does in this area, with the Government working alongside it, we do not feel it necessary to place a statutory duty on the Electoral Commission. With JESP, the Department and the Electoral Commission working hard across the electoral landscape, we do not feel that the amendment and the new clause are necessary, so I respectfully ask the hon. Member not to push them to a vote.
Question put and agreed to.
Clause 70 accordingly ordered to stand part of the Bill.
Clauses 71 to 74 ordered to stand part of the Bill.
New Clause 14
Removal of strategy and policy statement
“(1) In Part 1 of PPERA 2000 (the Electoral Commission) omit—
(a) sections 4A to 4E and the italic heading before those sections (strategy and policy statement);
(b) section 13ZA and the italic heading before that section (examination by the Speaker’s Committee of the Electoral Commission’s performance of duty to have regard to strategy and policy statement).
(2) Omit sections 16 and 17(1) of the Elections Act 2022 (which inserted the sections repealed by subsection (1)).
(3) The Electoral Commission is not required to publish a report under section 4B(4) of PPERA 2000 in relation to any 12-month period ending on or after the day on which this section comes into force.”—(Samantha Dixon.)
This new clause removes provision about the designation of a strategy and policy statement for the Electoral Commission.
Brought up, and read the First time.
Samantha Dixon
I beg to move, That the clause be read a Second time.
The new clause removes provisions allowing the designation of a strategy and policy statement for the Electoral Commission. For the health of our democracy, it is essential that the Electoral Commission is fearlessly independent, commands trust across the political spectrum and the public, and is seen to operate free from political influence. We have listened to stakeholders and recognise that re-establishing the principle of independence for our elections regulator is vital for public confidence in our electoral system.
That move is a response to the recommendations of the Ethics and Integrity Commission, parliamentary Committees, the Electoral Commission itself as well as civil society organisations such as Transparency International and Spotlight on Corruption, all of whom emphasised that Government powers to designate a statement are incompatible with the commission’s independence.
That is why we have taken clear action by tabling this new clause. Ministers will no longer have the power to designate a strategy and policy statement, and the Electoral Commission will no longer be required to have regard to one. The Electoral Commission will rightly remain accountable to Parliament through the Speaker’s Committee. The new clause would reinforce the foundational principles of the Electoral Commission’s independence, and it would restore confidence in its ability to oversee elections and regulate political finance, without fear or favour, into the future. For that reason, I urge Members to accept the new clause.
Samantha Dixon
I thank the hon. Lady very much.
Question put and agreed to.
New clause 14 accordingly read a Second time, and added to the Bill.
New Clause 60
Power of Scottish Ministers to vary sums in Schedule 7 to PPERA 2000
“In section 155 of PPERA 2000 (power to vary specified sums or percentages), in subsection (1A)—
(a) after ‘vary’ insert ‘—
(a) ’;
(b) at the end insert
‘, or
(b) any sum for the time being specified in Schedule 7 so far as that sum applies in relation to a donation to a member of a local authority in Scotland who is not also a member of a registered party.’”—(Samantha Dixon.)
This new clause, which would be inserted after clause 62, amends section 155(1A) of the Political Parties, Elections and Referendums Act 2000 to provide a power for the Scottish Ministers to vary the sums in Schedule 7 (control of donations to individuals and member associations), so far as they relate to areas of devolved competence.
Brought up, read the First and Second time, and added to the Bill.
New Clause 2
Permissible donors not to include individuals serving a foreign administration
“(1) Section 54 of PPERA 2000 (permissible donors) is amended as follows.
(2) After subsection (2) insert—
‘(2A) An individual who would otherwise fall within subsection (2)(a) is not a permissible donor if that individual is, or has been—
(a) a member of, or
(b) a politically-appointed adviser to
a foreign administration.’
(3) After subsection (8) insert—
‘(9) In subsection (2A)—
“foreign administration” means the government or state apparatus of any country or territory outside the United Kingdom;
“member” includes elected and appointed members.’”—(Lisa Smart.)
This new clause would ban those who are or have been members of a foreign administration, or advisers to a foreign administration, from donating money to a political party, think tank or campaigning body.
Brought up, and read the First time.
Lisa Smart (Hazel Grove) (LD)
I beg to move, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss the following:
New clause 3—Permissible donors not to include persons who have promoted political violence—
“(1) Section 54 of PPERA 2000 (permissible donors) is amended as follows.
(2) After subsection (3ZB) insert—
‘(3ZC) A person is not to be treated as a permissible donor in relation to a donation if the person has been convicted of a prescribed offence relating to the promotion, incitement, or use of political violence.
(3ZD) The Secretary of State must by regulations prescribe the offences which fall within subsection (3ZC).’”
New clause 15—Declaration of income or gifts from Foreign Governments—
“(1) Schedule 1 to RPA 1983 (parliamentary elections rules) is amended as follows.
(2) After rule 8 (consent to nomination) insert—
‘Declaration of income or gifts from Foreign Governments
8A (1) A person is not validly nominated unless the person makes a declaration stating whether they have received in the past or are currently in receipt of any income or gifts from—
(a) the government of any foreign nation, or
(b) any person or organisation connected to the government of any foreign nation.
(2) The declaration must be—
(a) in the prescribed form,
(b) signed by the person, and
(c) delivered at the place and within the time for the delivery of nomination papers.
(3) For the purposes of this rule, a person or organisation connected to the government of any foreign nation mean anyone who has at anytime been—
(a) a member of, or
(b) a politically-appointed adviser to a foreign administration.’
(3) In rule 6A (nomination papers: name of registered political party), at the end insert—
‘(4) A registered political party is under a duty to ensure that a candidate has made the declaration required by rule 8A, and a certificate under paragraph (1) or (1B) may not be issued by or on behalf of the registered nominating officer of the party in respect of a candidate unless this duty has been discharged.’”
This new clause would require candidates to declare any income or gifts from foreign nations or connected entities in order to be validly nominated. It also places a duty on political parties to ensure their candidates have made this declaration before authorising them to stand on behalf of the party.
New clause 16—Annual statements on foreign donation risks and independent investigations—
“(1) Part 4 of PPERA 2000 (control of donations to registered parties and their members etc) is amended as follows.
(2) After section 66 (Declaration by treasurer in donation report) insert—
‘66A Annual statement on mitigation of foreign donation risks
(1) The treasurer of a registered party must, in respect of each calendar year, prepare a statement setting out the steps taken by the party to mitigate risks relating to donations originating from a foreign nation.
(2) The statement must be delivered to the Commission alongside the party's statement of accounts for that year.
66B Annual independent investigation of donations by foreign-owned UK entities
(1) A registered party must, in respect of each calendar year, arrange for an independent investigation to be conducted into any donations received by the party from a foreign-owned UK entity.
(2) A report of the independent investigation must be submitted to the Commission by the treasurer of the party within six months of the end of the calendar year to which it relates.
(3) The Secretary of State may by regulations make provision about—
(a) the appointment and qualifications of an independent investigator for the purposes of this section;
(b) the definition of a “foreign-owned UK entity”; and
(c) the required contents of the investigation report.
(4) Regulations under subsection (3) are subject to the affirmative resolution procedure.’”
This new clause requires registered political parties to produce an annual statement detailing how they have mitigated risks relating to donations from foreign nations. It also requires parties to commission an annual independent investigation into donations they receive from foreign-owned UK entities, with the findings submitted to the Electoral Commission.
New clause 17—Payments from foreign state broadcasters to politicians and candidates—
“(1) Schedule 7 to PPERA 2000 (control of donations to individuals and members associations) is amended as set out in subsection (2).
(2) After paragraph 6 insert—
‘Prohibition on payments from foreign state broadcasters
6A (1) A regulated donor must not accept any payment, remuneration or other financial benefit, whether or not on commercial terms, from a prescribed foreign state broadcaster.
(2) The Secretary of State may by regulations proscribe a foreign state broadcaster for the purposes of this paragraph where the Secretary of State considers the broadcaster is acting on behalf of, or producing propaganda for, a foreign power.
(3) For the purposes of this paragraph, a payment or benefit includes, but is not limited to, remuneration for appearing on, hosting, or contributing to broadcasts or programmes.’
(3) Schedule 1 to RPA 1983 (parliamentary elections rules) is amended as set out in subsection (4).
(4) After rule 8 (consent to nomination) insert—
‘Declaration of past earnings from foreign state broadcasters
8A (1) A person is not validly nominated unless the person makes a declaration stating whether they have received any past or current earnings, payments or benefits from a foreign state broadcaster prescribed under paragraph 6A of Schedule 7 to the Political Parties, Elections and Referendums Act 2000.
(2) The declaration must be—
(a) in the prescribed form,
(b) signed by the person, and
(c) delivered at the place and within the time for the delivery of nomination papers.’”
This new clause prohibits politicians (regulated donors) from receiving any payment from prescribed foreign state broadcasters. It also amends the parliamentary election rules to require candidates (including incumbent MPs) to formally declare any past earnings from these entities in order to be validly nominated to stand for election.
New clause 38—Permissible donors: foreign citizens—
“(1) PPERA 2000 is amended as follows.
(2) In Section 54 after paragraph (2) insert—
‘(2AA) For the purposes of this section, subject to the exemptions in section (2AB), an “individual registered in an electoral register” does not include a person who is on a register by virtue of being a “qualifying foreign citizen” for the purposes of—
(a) Section 2 of the Local Government and Elections (Wales) Act 2021, or
(b) Section 1 of the Scottish Elections (Franchise and Representation) Act 2020.
(2AB) The exemptions in this subsection are that the person is on an electoral register because they are—
(a) a qualified Commonwealth citizen,
(b) a citizen of the Republic of Ireland, or
(c) a citizen of the European Union who would be eligible to vote in local elections under the English and Northern Ireland franchise.’”
This new clause prevents people who are on electoral registers because they fulfil certain conditions in the Local Government and Elections (Wales) Act 2021 and the Scottish Elections (Franchise and Representation) Act 2020 from being permissible donors but are not qualifying Commonwealth, Irish, or EU citizens.
New clause 39—Mitigating the risk of foreign interference in political donations—
“Within six months of the passing of this Act, the Secretary of State must publish a consultation paper on how Government will enhance information-sharing between relevant agencies and public bodies and registered political parties to help to identify and mitigate the risk of foreign interference in political donations that are regulated by electoral law.”
This new clause would require the Secretary of State to consult on how to enhance information sharing between relevant public bodies or agencies and political parties to minimise the risk of foreign interference in political donations.
New clause 45—Permissible electors to include overseas electors with previous tax residence etc—
“(1) Section 54 of the Political Parties, Elections and Referendums Act 2000 (permissible donors) is amended as follows.
(2) In subsection (2)(a), at end insert ‘(but this is subject to subsection (2ZA))’.
(3) After subsection (2) insert—
‘(2ZA) An individual registered in an electoral register who at the date of a donation qualifies as an overseas elector in respect of a constituency is only a permissible donor for the purposes of this Part if—
(a) the individual was at any time resident in the UK for tax purposes,
(b) the individual has a Unique Taxpayer Reference, and
(c) the individual holds funds or assets that may be charged to tax in the United Kingdom that are at least equivalent to the value of the donation.
(2ZB) For the purposes of subsection (2ZA)—
(a) whether a person qualifies as an overseas elector is to be determined in accordance with section 1A of the Representation of the People Act 1985;
(b) whether a person was at any time resident in the UK for tax purposes is to be determined in accordance with Schedule 45 to the Finance Act 2013.’”
This new clause limits permissible donors who are overseas electors to those who have previously been resident in the UK for tax purposes, have a Unique Taxpayer Reference and holds funds or assets that may be taxed in the UK which have a value of at least the amount to be donated.
New clause 51—Annual report regarding foreign interference in political funding—
“(1) The Electoral Commission and the National Crime Agency must each produce and publish an annual report about—
(a) the risk of foreign interference in relation to controlled donations, and
(b) the adequacy of any systems designed to address risks of foreign interference in relation to controlled donations.
(2) The Electoral Commission and the National Crime Agency must send a copy of the report to the Secretary of State, and the Secretary of State must lay it before Parliament.
(3) In this section—
‘controlled donation’ means—
(i) a donation to a registered party, individual or members association that is subject to Part 4 of the Political Parties, Elections and Referendums Act 2000, and
(ii) a donation to a candidate or their agent that is subject to Schedule 2A of the Representation of the People Act 1983;
‘foreign interference’ includes the commission of a relevant electoral offence to which section 16 of the National Security Act 2023 applies (foreign interference in elections).”
This new clause would require the Electoral Commission and the National Crime Agency to make annual reports about the risks of foreign interference in the UK’s political finance system and the adequacy of systems in place to address those risks.
Lisa Smart
It is a pleasure to serve with you in the Chair, Dame Siobhain. Trust in our democracy is not something that we can afford to take for granted; it is earned, and it is increasingly fragile. Years of scandals, sleaze and foreign money flooding into our politics have eroded that trust, and we must act to restore it. My new clauses are designed to restore transparency to our democracy, and to restore that trust.
New clause 2 would ban anyone who is or has been a member of, or a politically appointed advisor to, a foreign Administration from donating to a political party, think-tank or campaigning body. If a person has served in a foreign state in a political capacity, they should not be able to use their personal wealth to shape British politics—that is the reason behind the new clause. The resulting risk of strong potential conflicts of interest, and of foreign influence by proxy, is self-evident. The current permissible donor rules focus on nationality and residency; they do not ask whether a UK-registered donor has served a foreign Government in a political role, which is a gap that a determined adversary could drive a coach and horses through.
The Liberal Democrats have long called for reforms to prevent foreign interference and increased transparency in political donations. We believe that protecting democracy is a national security policy priority. If Ministers are serious about closing the loopholes that exist, which allow foreign and dark money to shape British politics, they will welcome new clause 2.
Dr Chowns
I completely support the thrust of these new clauses tabled by the hon. Member, in terms of protecting British democracy. I have a specific question in relation to new clause 3. Last year the Government proscribed a protest organisation. That proscription has since been overturned in the High Court, and it is still being considered. Is the hon. Member concerned about her new clause might interact with that particular case? Is there a case for thinking carefully about that issue?
Lisa Smart
I am grateful to the hon. Member for giving me the opportunity to wade into such a thorny political issue—and an issue where it is important to stay on the right side of what can be said in discussing a proscribed organisation. The Government should use their powers of proscription proportionately, in all cases, and should be able to robustly back up their decision to proscribe an organisation with very clear evidence that is made public. I am on the record many times as saying that.
The police and any authorities that we are asking to implement the law must do so according to the law as it is at the time. At the moment there is a live case where an organisation was proscribed and there are relevant court cases. The hon. Member is absolutely right to highlight that. Over the weekend, arrests were made in relation to that proscription. New clause 3 is about donations to political parties. If an organisation is proscribed—and it is still proscribed—it would fall under the scope of new clause 3, even if there are ongoing legal processes that have not yet concluded.
Dr Chowns
Just to be clear, my concern is that literally hundreds of people have been arrested for holding placards in relation to that organisation. Potentially, under the hon. Member’s new clause 3, all those hundreds of people could be forbidden forever from donating to any political party. I am not sure that that is proportionate. It strikes me that there is complexity there, relating to the specific new clause. I am fully on board with excluding promotion of political violence and so forth, but that particular case highlights a complexity, particularly around the hundreds of people arrested for holding placards.
Lisa Smart
The arrests were made for support for a proscribed organisation via holding a placard that said the holder supports that organisation. I think we are talking about the same case. I understand the point that the hon. Member makes. Proscription of organisations is a tool that the Government rightly uses, although I have questioned the proportionality of the use of that tool. New clause 3 particularly mentions political violence; the hon. Member is talking about peaceful protest, if I understand her correctly. All hon. Members on this Committee, and everyone beyond it, should support the right for people to tell a Government that they think the Government have got it wrong. We should all support that and not make it harder for people to do it. If, however, someone is guilty of a
“prescribed offence relating to the promotion, incitement, or use of political violence”,
I do not think that they should be able to financially support a political party. The promotion of an organisation is the same as supporting an organisation. There are ways of supporting organisations and causes that stay exactly the right side of the law. While I am not of the view that the Government have always used proscription rules proportionately in recent months, I do think that, if those rules exist, they should be able to be used in that way by those who are enforcing the law.
David Simmonds (Ruislip, Northwood and Pinner) (Con)
I am sympathetic to the point that the hon. Member is trying to make. I have listened carefully to what she said about new clauses 2 and 3. With respect to new clause 3, it would be helpful to consider the treatment of those who may have been opponents of an oppressive foreign political regime who have been convicted in this country of an offence that might be a proscribed offence under mutual recognition arrangements, but where they perhaps sought asylum in the UK. We have seen examples of people who were vocal opponents of the Putin regime in Russia coming to the UK and joining a political party. Those are people who we recognise as good citizens. How would they be treated should that offence be on that proscribed list?
In respect to new clause 2, again, I have sympathy, but I raise the issue of business people undertaking consular roles in other countries. It is quite common, for example, for a British business person who may be the British consul in a particular town to then be appointed by a series of other Governments to act for them as an agent in that respect. Subsequently, on returning to the UK that business person would be caught by the rules in new clause 2, even though those restrictions are in no way intended to target those types of activities. Has the hon. Member given some thought to how those types of roles would be captured and how they might be excluded?
Lisa Smart
New clause 3 talks specifically about political violence. While we can sometimes agree with the message that opponents of our adversaries use, it is right that we are against political violence and those who promote political violence. I think that covers his question on new clause 3.
Lisa Smart
We should all be against political violence. People who propose and promote political violence should not be permitted to donate to political parties in the UK. I am thinking about people who have various convictions in the UK for promoting political violence and about people who own tech platforms but are based on the west coast of the United States and have spoken at rallies that promote political violence. We should not be welcoming their interference in our politics and new clause 3 seeks to stop them from doing so.
On new clause 2, the hon. Member for Ruislip, Northwood and Pinner talked about people who have been politically appointed to be an adviser for a foreign Administration, whether in a business ambassadorial or trade envoy role, and I see his point. I would have thought those are politically appointed, rather than on a civil service basis. However, there are people who are not political appointments who would not fall within new clause 2, so they could continue to operate both as an envoy or an ambassador in that informal business ambassadorial role and continue to donate. I do not think that is covered under new clause 2 as it is currently written.
Returning to new clause 3, the principle that our democratic institutions must command public confidence, and that those who seek to undermine them should face serious consequences, is one that we hold firmly.
On new clause 15, voters have a right to know who is financing the people seeking their vote. That is a basic condition of democratic accountability. Real-time disclosure of donations in a publicly searchable database of all online political ads and spending are commitments we have held for years. New clause 15 is entirely consistent with that agenda. There have been other amendments and proposals from other Members that have touched on some of those issues, which we also support.
New clause 16 would require the treasurer of each registered political party to prepare an annual statement setting out the steps taken to mitigate risks relating to donations originating from a foreign nation, to be delivered to the Electoral Commission alongside the party’s statement of accounts. We have heard a great deal throughout this Committee about the importance of transparency, and we agree.
This new clause makes transparency operational. It requires parties not simply to accept or reject donations, but to demonstrate annually that they have actively assessed and mitigated the risks of foreign money entering their finances through UK-registered vehicles. Foreign-owned UK entities are a known vector for influence. The public record of recent years—Russian money, oligarch links and opaque corporate structures—makes that plain. An independent annual audit is a proportionate and practical response.
New clause 17 is about prohibiting politicians from receiving payment from proscribed state broadcasters. State-controlled broadcasters have been used as instruments of foreign influence, disinformation and political interference for decades. It would be extraordinary to allow individuals seeking or holding elected office to receive financial benefit from those very organisations. That is not a blanket ban on media appearances—heaven forbid—it is a prohibition on financial relationships with broadcasters acting as foreign propaganda arms.
Moving on to new clauses 45 and 51 proposed by the hon. Member for Warwick and Leamington (Matt Western), the Joint Committee that he chairs noted potential risks around permissible donors being used as “conduits” to channel foreign money into UK politics. It further noted a discrepancy between corporations needing to have a UK connection—for example, generating enough revenue in the UK to cover their donation—and individuals, for whom there were apparently fewer such requirements. The report considered various options, balancing security interests against the risk of creating chilling effects.
New clause 45 would mean that overseas individuals wishing to donate would need to hold funds or assets that may be taxed in the UK, sufficient to cover the cost of their donation. That broadly mirrors the Government’s proposals for corporations to have generated sufficient UK-based revenue.
On new clause 51, the Joint Committee’s report also highlighted the resourcing challenges faced by the Electoral Commission and law enforcement bodies such as the National Crime Agency, and noted that legislative changes will be effective only if there is adequate resourcing to enforce the rules. New clause 51 would require the Electoral Commission and the National Crime Agency to report annually on the risks of foreign interference in the UK’s political finance system and the adequacy of systems in place to address those risks.
Paul Holmes
I rise to speak briefly to Opposition new clauses 38 and 39 in my name. They are proportionate measures to enhance the legislation and assist the Government in their aim of tightening up on foreign political donations.
New clause 38 would prevent people who are on electoral registers because they fulfil certain conditions in the Local Government and Elections (Wales) Act 2021 and the Scottish Elections (Franchise and Representation) Act 2020, but are not qualifying Commonwealth citizens, from being permissible donors. We have tabled it because we are concerned that modern changes to devolved legislation have created loopholes in who can give money from foreign origins.
The Labour Government in Wales have given all foreigners the right to vote in local and devolved elections. The SNP Scottish Government have done the same in Scotland. Those Administrations have made those changes through section 2 of the Local Government and Elections (Wales) Act and section 1 of the Scottish Elections (Franchise and Representation) Act.
Such legislation has also given foreign residents the right to make unlimited donations to UK politicians and political parties. We contend that that opens the door to Russian, Chinese and Iranian foreign influence. For example, a Chinese “student” resident at a Scottish university can legally make political donations to any UK political entity. We have raised that issue in Parliament, but the current Government have declined to address it. The new clause would essentially ban that from happening, except where a person is a Commonwealth, Irish or EU citizen, as we believe those historical links are much more in keeping with the current electoral guidelines and legislation.
Samantha Dixon
The Government fully recognise the seriousness of the threat posed by foreign interference in our democracy. Protecting the integrity of UK elections is essential, which is why it is a criminal offence to accept or facilitate donations from foreign sources, and why the Bill seeks to strengthen the system further. However, while I can understand and appreciate the intention behind new clause 2, we do not believe that it is the right way to address this threat.
First, new clause 2 takes a broad and untargeted approach that would permanently bar any individual who
“is, or has been…a member of, or…adviser to a foreign administration”
from making political donations, regardless of how long ago that role was held, its nature or whether there is any ongoing connection to a foreign state. That risks excluding individuals who are entitled to participate in UK political life, and who pose no credible risk of foreign interference.
Secondly, there would be issues of enforceability. I will not spend much time on this particular point, because it is important that I set out our arguments on the principle, and what I think the right answer to this is, but following the approach of new clause 2 would mean relying on definitions of persons that are difficult to get right and can be unenforceable in practice. The amendment relies on concepts such as a “politically-appointed adviser”, which is opaque, legally speaking, and risks creating legal uncertainty for campaigners and regulators.
Thirdly, and more fundamentally, where the concern is hostile activity by, or on behalf of, foreign states, we already have robust and targeted tools in our national security legislation, which is complemented by safeguards in electoral law that we are seeking to enhance through the Bill. The National Security Act 2023 provides a clear criminal framework for tackling hostile state activity, including the foreign interference offence, which is specifically designed to capture conduct carried out on behalf of a foreign power to influence the UK’s political system.
Existing electoral law is designed to ensure that money can only come from permissible sources and criminalises the acceptance or facilitation of donations from impermissible foreign sources. The Bill significantly strengthens the existing rules so that in future even donations that are potentially risky are identified earlier, scrutinised more closely, and returned where necessary.
By introducing robust “know your donor” checks and requiring all donors to declare any benefits they have received in connection with their donation, we are reducing the space in which individuals who pose a real risk, or their proxies, can operate under the radar. Our new measures directly respond to the concerns raised by the hon. Member for Hazel Grove, as well as those of other key stakeholders, such as the Electoral Commission, the Committee on Standards in Public Life and the National Crime Agency. With that, I hope she feels she can withdraw her amendment.
New clause 3 seeks to prevent those convicted of a prescribed offence relating to the promotion, incitement, or use of political violence from making political donations. Currently, if an individual is convicted of such an offence, that conduct rightly affects their democratic rights, including their ability to stand for election or to hold elected office. This helps to deter those who would undermine the democratic rights of others, such as candidates contesting an election.
The Government are absolutely aligned with the intention behind this proposal. Political violence and its promotion or incitement have no place in our democracy, and we are clear that those who seek to undermine democratic participation through violence or intimidation should face serious consequences. The question, however, is not whether this behaviour is unacceptable—it plainly is—but whether this is the right legal mechanism to address it.
If this amendment were to be accepted, it would represent a significant shift in the purpose of political finance law, which is about ensuring only those individuals who have a legitimate interest in our elections can support candidates and campaigns through their vote, volunteering their time or offering financial support. Although I share the hon. Member’s concern, the Government believe that this amendment does not address a regulatory gap and would not further our shared aim of reducing harassment and intimidation in politics.
The harassment and intimidation of voters, electoral staff and campaigners is unacceptable and has a profoundly detrimental impact on our democracy. That is why we are taking forward several interventions in the Bill to tackle this issue, which we have already discussed in great detail, and are doing so through criminal law, electoral offences and disqualification, rather than through political finance rules, which are not designed to address conduct. With those reassurances, I hope the hon. Member will withdraw her amendment.
Lisa Smart
I listened closely to what the Minister said, and I understand the thrust of her view that existing rules would cover the conduct that we are seeking to avoid. Will the Minister think of the specific case of Elon Musk, the owner of X? He spoke at a rally via video link and incited violence. He has also talked, at separate times, about donating to a UK political party. UK companies are part of his group; there would be a way for him to channel funding through a UK company. Will the Minister let me know what I am missing that would stop Elon Musk doing that?
Samantha Dixon
I have said this before and I will say it again: the Bill is not designed to prevent specific individuals from participating in or undermining elections. It is about the general regulatory framework and criminal law that we intend to implement, uphold and shore up to prevent certain behaviours in the future. It is not about specific individuals, so I decline to respond the hon. Member’s comments, except to say simply that the legislation, in its entirety, aims to root out political violence, harassment and intimidation.
New clause 15 proposes to require candidates at UK parliamentary elections, in order to be validly nominated, to complete a declaration on whether they have received any income or gifts from foreign nations or connected entities. A registered political party would be responsible for ensuring that such a declaration had been completed before allowing a candidate to be nominated as a candidate for that party. The Government are strengthening the rules around political finance to protect against foreign interference and have introduced several measures, which we have discussed, that will apply to candidates. The reforms will make it significantly more difficult for malign actors to interfere in our elections.
As hon. Members know, and as I have said many times, the Rycroft review has recommended that the Government look further at enhancing rules for candidates to ensure that money received previously and then used in campaigns comes from permitted sources. The Government are carefully—and I underline that point—considering that recommendation, among all the others. The Government share the concern of the hon. Member for Hazel Grove but, in light of that ongoing work, I ask her not to move new clause 15.
New clause 16 seeks to require registered parties to produce an annual risk mitigation statement relating to donations originating from foreign nations, and to commission an annual independent investigation into donations that they receive from foreign-owned UK entities. Foreign money has no place in the UK’s political system. We recognise the hon. Member’s concerns that the nature of foreign interference is evolving, with threats becoming increasingly sophisticated. That is precisely why the Government have introduced a package of measures that work together to close potential loopholes and address vulnerabilities to foreign interference.
Via secondary legislation we will require donors to declare any benefits linked to their donations and we will strengthen donation rules to ensure that companies must demonstrate a genuine and substantive UK connection. Those changes will help to ensure that political donations genuinely reflect UK-based interests and will prevent the use of shell companies to channel impermissible donations. In practice, where behaviour is not already criminal, the new “know your donor” regime already addresses much of the issue that new clause 16 seeks to tackle. However, the new clause’s approach of annual risk mitigation statements and retrospective investigations of foreign nation donations is less proactive than the risk-based duty that the Bill introduces.
As a reminder, rather than relying on parties to report annually about what they consider appropriate, the “know your donor” regime introduces risk-based due diligence on significant donations across the electoral regime. For the first time, recipients of donations will be required to adopt a risk-based framework for assessing the permissibility of donors, supported by Electoral Commission guidance, which will set out how donees can mitigate potential risks. That means that anyone receiving significant donations, not just parties, must carry out risk assessments, ensuring that the system as a whole is strengthened.
Paul Holmes
I understand why the Minister is concerned about some of the new clauses, and as I said before, she is right that the Government are trying to tighten up the regime. On her argument that the Electoral Commission does not currently have the responsibilities she outlined, however, does she not agree that there is still a problem with two-way information sharing?
The Minister is absolutely correct to say that the Electoral Commission has the power to access Companies House information and powers under the Economic Crime and Corporate Transparency Act 2023. However, if we look at past examples of registered Chinese Communist party spies giving money to political parties in this House, does she not think it would have been useful if the Labour party, in that case, had known about that via the security services and could have refused the donation? I am not sure whether the Government are filling the hole of two-way information sharing, and that concerns me.
Samantha Dixon
I thank the hon. Gentleman for giving me a breather. As he knows, the Rycroft review considered this matter and—I mean this sincerely; it is not simply a form of words for the Committee —the Government are carefully considering those recommendations and will respond in due course. To give him that assurance: this is part of that consideration.
Alongside the measures I mentioned, enhanced company permissibility tests ensure that only organisations with a genuine and substantive UK connection can donate, closing off key vulnerabilities in our electoral framework. The Government are also committed to robust monitoring and evaluation of the Bill, and anticipate that this will include an impact evaluation assessing whether the policies introduced have achieved their intended aims.
We have discussed the Rycroft review, and I sincerely mean it when I say that we will respond fully in due course to all the measures in it, including on improved co-ordination between the Electoral Commission, the Government, the security services and the police. For those reasons, while I fully understand the commitment of my hon. Friend the Member for Warwick and Leamington to strengthening our defences against foreign interference, the Government do not consider this amendment to be the right mechanism to achieve that end.
Lisa Smart
I am grateful to all who have contributed. I plan to press to a vote all the new clauses that I have spoken to.
Paul Holmes
In the interests of ensuring that you call the right votes, Dame Siobhain, there is no doubt in my mind when the Minister says she is genuinely looking at trying to fix this problem—I believe her; she is a Minister of integrity and I know the Government absolutely want to achieve that aim—but this is happening now and, with no commitment to timescales, as the hon. Member for Hazel Grove asked for in relation to the Rycroft review, I am concerned that it will still be a problem.
I know the Minister will try to implement this carefully, but the lack of information sharing at this precise moment means that money is still being given, despite the fact that organisations that the Electoral Commission is not currently asking could provide that desperately needed clarity and transparency. Given the reassurance that the Minister has given to the Opposition on new clauses 38 and 39, however, I will not press them to a vote.
Question put, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss the following:
New clause 12—Controls on accepting donations in form of cryptoassets—
“(1) The Political Parties, Elections and Referendums Act 2000 is amended in accordance with subsections (2) and (3).
(2) After section 54 (permissible donors to registered parties) insert—
‘54A Controls on accepting donations in form of cryptoassets
(1) A donation received by a registered party by way of a transfer of cryptoassets to the party must not be accepted by the party unless the donation meets requirements specified in regulations made by the Commission.
(2) For the purposes of this section, section 52(2)(a) (minimum donation to be disregarded) does not apply.
(3) Regulations made by the Commission may include requirements relating to—
(a) the identity of the holder of the cryptoassets donated to the registered party;
(b) the nationality and country of residence of the holder of the cryptoassets donated to the registered party;
(c) the value of a donation that is to be disregarded for the purposes of this section;
(d) the maximum value of the cryptoassets that may be donated to a registered party;
(e) the original source of the funds that were transferred into the cryptoassets donated to the registered party;
(f) any other matter that the Commission considers appropriate for the purpose of improving the transparency of donations made by way of a transfer of cryptoassets.
(4) In this section, “cryptoasset” means a cryptographically secured digital representation of value or contractual rights that uses a form of distributed ledger technology and can be transferred, stored or traded electronically.
(5) The Secretary of State may by regulations made by statutory instrument amend the definition of “cryptoasset” in subsection (4).
(6) A statutory instrument containing regulations under subsection (5) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.’
(3) In Schedule 7 (controls on donations to individuals and members associations), after paragraph 6 insert—
‘6ZA Controls on accepting donations in form of cryptoassets
(1) A controlled donation received by a regulated donee by way of a transfer of cryptoassets to the donee must not be accepted by the donee unless the donation meets requirements specified in regulations made by the Commission.
(2) For the purposes of this paragraph, paragraph 4(3)(b) (minimum donation to be disregarded) does not apply.
(3) Regulations made by the Commission may include requirements relating to—
(a) the identity of the holder of the cryptoassets donated to the regulated donee;
(b) the nationality and country of residence of the holder of the cryptoassets donated to the regulated donee;
(c) the value of a donation that is to be disregarded for the purposes of this paragraph;
(d) the maximum value of the cryptoassets that may be donated to a regulated donee;
(e) the original source of the funds that were transferred into the cryptoassets donated to the regulated donee;
(f) any other matter that the Commission considers appropriate for the purpose of improving the transparency of donations made by way of a transfer of cryptoassets.
(4) In this paragraph, “cryptoasset” means a cryptographically secured digital representation of value or contractual rights that uses a form of distributed ledger technology and can be transferred, stored or traded electronically.
(5) The Secretary of State may by regulations made by statutory instrument amend the definition of “cryptoasset” in subsection (4).
(6) A statutory instrument containing regulations under sub-paragraph (5) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.’
(4) In the Representation of the People Act 1983 in Schedule 2A (controls on donations to candidates), after paragraph 6 insert—
‘6A Controls on accepting donations in form of cryptoassets
(1) A relevant donation received by a candidate or his election agent by way of a transfer of cryptoassets must not be accepted unless the donation meets requirements specified in regulations made by the Commission.
(2) For the purposes of this paragraph, paragraph 4(2) (minimum donation to be disregarded) does not apply.
(3) Regulations made by the Commission may include requirements relating to—
(a) the identity of the holder of the cryptoassets donated to the candidate or agent;
(b) the nationality and country of residence of the holder of the cryptoassets donated to the candidate or agent;
(c) the value of a donation that is to be disregarded for the purposes of this paragraph;
(d) the maximum value of the cryptoassets that may be donated to a candidate or agent;
(e) the original source of the funds that were transferred into the cryptoassets donated to the candidate or agent (including information relating to any transactions between the original source of the funds and the transfer of those funds into the cryptoassets);
(f) any other matter that the Commission considers appropriate for the purpose of improving the transparency of donations made by way of a transfer of cryptoassets.
(4) In this section, “cryptoasset” means a cryptographically secured digital representation of value or contractual rights that uses a form of distributed ledger technology and can be transferred, stored or traded electronically.
(5) The Secretary of State may by regulations made by statutory instrument amend the definition of “cryptoasset” in subsection (4).
(6) A statutory instrument containing regulations under sub-paragraph (5) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.’
(5) This section comes into force on the day on which this Act is passed (and section 80 is to be construed accordingly).”
This new clause introduces controls on donations made by way of transfers of cryptoassets. Donations or transfers would have to comply with requirements set out in regulations made by the Electoral Commission in order to be accepted and would be prohibited until the Commission has made such regulations.
New clause 20—Disclosure of past donations in cryptoassets—
“(1) Part 4 of PPERA 2000 (control of donations to registered parties and their members etc) is amended as follows.
(2) After section 66 (declaration by treasurer in donation report) insert—
‘66A Report on past donations involving cryptoassets
(1) The treasurer of a registered party must, within the period of six months beginning with the day on which this section comes into force, prepare a report under this section.
(2) The report must record the relevant details in relation to each donation received by the party during the relevant 5-year period which was—
(a) made wholly or in part with cryptoassets; or
(b) accepted by means of a custodian wallet provider or cryptoasset exchange provider.
(3) For the purposes of this section, the “relevant 5-year period” means the period of 5 years ending with the day on which this section comes into force.
(4) In this section, “the relevant details” in relation to a donation means—
(a) the name and address of the donor;
(b) the amount or value of the donation;
(c) the date on which the donation was received; and
(d) the date on which, and the way in which, any necessary steps were taken regarding the donation under section 56 (acceptance or return of donations: general).
(5) The report must be delivered to the Commission within the period of 14 days beginning with the end of the period mentioned in subsection (1).
(6) In this section—
“Cryptoassets” has the meaning given by Regulation 14A(3)(a) of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017;
“Custodian wallet provider” has the meaning given by Section 131ZC(3) of the Proceeds of Crime Act 2002; “Cryptoasset exchange provider” has the meaning given by Section 131ZC(3) of the Proceeds of Crime Act 2002.’”
This new clause amends PPERA 2000 to require registered political parties to compile and submit a one-off report to the Electoral Commission detailing the source, value, and dates of any donations made via cryptoassets, or accepted via crypto wallets/exchanges, over the past five years.
Dr Chowns
I rise to move new clause 4, tabled by the right hon. Member for Birmingham Hodge Hill and Solihull North (Liam Byrne). I will also speak briefly to new clause 12, tabled by the hon. Member for Warwick and Leamington, and new clause 20, tabled by the hon. Member for Hazel Grove. She is here and I am sure she will speak.
This incredibly important group of new clauses responds to a glaring absence in the Bill relating to crypto donations. As I will get on to, Rycroft has talked about this and the Government have committed to bringing forward related amendments. I am pleased about that, but it is very important that, in Committee, we take the opportunity to discuss in detail what shape those amendments might take and what the issues are around this topic.
There is consensus across wide parts of the political spectrum that cryptocurrency poses particular risks in relation to political donations. Transparency International has highlighted a number of factors: cryptocurrencies are fast and borderless, there are various exchanges offering anonymity and they are increasingly used for money laundering. There are clear risks with crypto, which makes it a high-risk vehicle for political donations through which foreign actors, who would otherwise be unable to, might be able to donate to political parties and candidates and try to influence British politics. Again, as Transparency International points out,
“it is reasonable to assume there is a strong likelihood that this alternative payment method is being used by hostile actors, such as Russia, to destabilise Western political systems.”
We need to take these warning very seriously.
Indeed, the Royal United Services Institute says:
“Cryptocurrency donations to UK political parties present an urgent and under-addressed challenge to the UK’s electoral integrity and, by extension, to its national security.”
It points out that
“the Bill does not mention cryptocurrencies”,
and says:
“This leaves a critical gap in our foreign interference defences as the pseudonymous, cross-border and decentralised features of crypto enable it to be used as a political money laundering accelerant”.
There are clearly many risks associated with crypto.
Philip Rycroft pointed this out himself and recommended:
“The government should legislate in the Representation of the People Bill to introduce a moratorium on political donations made in cryptoassets, with a power to end the moratorium only once Parliament and the Electoral Commission are assured that relevant regulation is effective.”
There is some debate about whether we should have a blanket ban on cryptoassets or a moratorium with safeguards.
I am mainly concerned about the outcome, rather than the particular terminology that is used to deal with this. We must ensure that crypto is not used as a vehicle for the pollution of British politics. One of the key issues is the use of AI to split donations into lots of tiny fragments that go under the radar of any benchmarks or limits, and of the scrutiny of donations. That is a risk, but as RUSI points out, the more significant, under-recognised and under-dealt with risk is the indirect use of crypto.
It is very easy to translate crypto into a fiat currency at the point of donation, so although I am moving new clause 4, tabled by the right hon. Member for Birmingham Hodge Hill and Solihull North (Liam Byrne), which would
“prevent parties and candidates from accepting donations in cryptoassets”,
we actually need a stronger regulatory environment and to recognise that there may be even bigger risks from the indirect use of crypto further down the chain, which could still be used to hide the provenance of funding, even though it may not be in the form of crypto when it enters the coffers of a political party or candidate.
Lloyd Hatton (South Dorset) (Lab)
The hon. Member is articulating very real concerns about cryptocurrency and the way it can manipulate our democratic processes. Will he join me in welcoming the fact that, when the Rycroft review was published before the Easter recess, the Government responded pretty swiftly on this, and particularly on a moratorium on political donations made through cryptocurrency. Does she welcome the Government’s urgent response in the Chamber?
It was clear from Ministers that they intend to get this right. The immediate response to the Rycroft review was about making sure that we get something in place straight away. From listening to Ministers inside and outside the Chamber, I know there is an enthusiasm to make sure this is done right. Does the hon. Member welcome that initial response and, like me, does she look to see how we can tighten up our defences against cryptocurrency in the longer term, however they may be used to try to infiltrate our democratic processes?
Dr Chowns
I welcome the commitment that the Government have made. I participated in that statement in the Chamber before Easter. As the hon. Member will have noticed, I even welcomed and congratulated the Government on their positive actions under the Bill without prompting from the Government Benches. It is important to give credit where it is due. It is also important to have the opportunity, in this Committee, to debate some of these details.
If the Government are to bring forward legislation to institute a moratorium, it is important to think about what conditions will be set under which any such moratorium might be lifted in future. That is crucial, because it could otherwise be overturned very easily. I suggest that, at a minimum, the criteria for lifting any such moratorium should be that an adequate regulatory environment is in place for controlling the ultimate risk and that there is triple positive approval from Parliament, the Electoral Commission and the Financial Conduct Authority—the three most important oversight organisations on this issue. It will be very difficult and complex to find a mechanism to regulate cryptocurrency; I hope that we just get rid of it from our politics completely. But if the Government are going to introduce a moratorium, the conditions under which that moratorium might be lifted must be included in the primary legislation that puts it in place.
Paul Holmes
The hon. Lady is making an excellent speech. I agree with every word she says about there being a very fine balance between a moratorium and a ban—a ban could, actually, be retrograde—but if we have a moratorium we should at least have a regulatory framework that makes sure that cryptocurrency cannot be moved upstream. Does she share my concern that, despite the good intentions of the Minister and the Government, and despite consistent pushing for a timescale for the implementation of the Rycroft review, we have not had that? She is therefore right that the Committee is the perfect opportunity to get the ideas of all political parties, and to hopefully get a better idea of the Government response.
Dr Chowns
I share the hon. Member’s enthusiasm and sense of urgency about getting Rycroft implemented as soon as possible. In the spirit of giving credit where it is due, the Government did commission that review—which was good—the review was quite fast, there was an immediate statement, and the Bill is going through. I do not think that we are in a perfect place.
I would have liked the Bill to have longer in Committee to give the Government a chance to introduce amendments that we could properly scrutinise. It is deeply unfortunate that, for a Bill that is about the workings of our electoral system, we are not able to do that core scrutiny in Committee—the crucial line-by-line scrutiny in the Commons, which is the elected Chamber. We are being asked, basically, to take it on trust. It is not that I distrust Government, but it is important to have this discussion now. I hope that the Minister will respond to those points.
I have made the point about the importance of including in primary legislation the criteria under which any moratorium might be lifted in the future, and that there must be really strong safeguards. I have also made the point that a ban on crypto donations will not itself stop the risk, because of the downstream issues. We have to think carefully about how whatever mechanism is introduced deals with that.
We have already seen that Ben Delo, who has given £4.5 million to Reform in recent months, has said, “Oh dear, since I am going to be hit by this retrospective moratorium I am going to move back to the UK to evade it.” That is clear evidence of gaming the system by a guy who, by the way, was convicted in the US of impropriety in relation to political financing. He was subsequently pardoned by Donald Trump. We have to be really careful of how bad actors might manipulate any legislative proposals that are introduced.
A ban on cryptocurrency will not, in itself, stop the risks. We also need a cap on all political donations—we will discuss a group of new clauses relating to that in a bit, so I will save my arguments on that topic until then—plus a donor register, as I spoke about in Tuesday’s sitting. A donor register with donor registration numbers would address the issue of traceability and address the risk that donations are split into many tiny donations to hide the fact that they are all from the same place. Having to have a donor registration number that is associated with a particular, identified, allowable donor would go a long way to addressing that problem. I look forward to hearing from the Minister.
Lisa Smart
I am happy to be speaking in support of new clause 4, and in favour of new clauses 12 and 20. New clause 20, which is in my name, would require parties to declare cryptoasset donations that they have received in the past. I agree with pretty much everything that the hon. Member for North Herefordshire said, and I note my earlier comments about the sticky wicket on which the Minister is being asked to play.
The Government’s statement on the publication of the Rycroft review was a rare moment in which they nailed both the timing and politics of an issue, and it was absolutely right to ban crypto from that day to stop any further gaming of the system. However, I completely agree with the hon. Member that this Committee is the place to have a conversation about what that will look like. Future Government amendments will be tabled at a later, as of yet unspecified date. I believe that the Minister is working with officials on the issue, but this Committee is where we can talk about the Bill on a cross-party basis.
The Rycroft review recommended that a moratorium be placed on political donations made in cryptoassets. The Government responded to the review on the date of its publication, but, although other amendments to the Bill have been tabled, there has not yet been a clear indication of how quickly that recommendation will be integrated into it. The Liberal Democrats look forward to getting some further detail, dates and quick action, but we also want the measures introduced in this Bill to be effective in the long term.
Cryptoassets are extremely difficult to trace. The difficulty in tracing the ultimate ownership of cryptoassets, the proliferation of different kinds of cryptoassets and the advent of AI-assisted technologies that can break cryptoassets into small amounts, below any threshold at which donations may have to be declared, create serious risks for political finance transparency. There is also a real risk of cryptoassets being used as a vehicle to channel foreign money into the UK political system, and neither the Electoral Commission nor political parties currently have the capability and expertise to manage that risk adequately. New clause 20 would require parties to declare the cryptoasset donations that they have received in the past. Given the clear issues with crypto donations, the public should surely expect transparency on them.
On new clause 12, tabled by the hon. Member for Warwick and Leamington, the Joint Committee on the National Security Strategy examined the merits and risks of allowing crypto donations, noting that benefits include the potential for greater transparency in some cases, and for regulations to gradually institutionalise alternative forms of payments. However, the Committee concluded:
“Crypto donations pose an unnecessary and unacceptably high risk to the integrity of the political finance system and public trust in it. We accept that future regulations may institutionalise the use of alternative payment systems for use in donations. At present, however, the opportunity to evade rules is too high, the adequacy of mitigations too low, and the resource cost of attempting to implement acceptable oversight is disproportionate. We see no democratic imperative to permit the use of crypto in political finance until adequate safeguards are in place.”
Crypto also poses wider upstream risks to the integrity of political finance, with the Committee report going on to say that
“donors can convert ‘dirty’ foreign crypto funds into ‘clean’ UK fiat and then donate it without arousing much suspicion. A ‘last mile’ ban on crypto donations is therefore not a panacea. Specialist capabilities to address upstream risks are underpowered and require further work.”
New clause 12 therefore calls for an immediate moratorium on crypto donations until the Electoral Commission produces statutory guidance, which should be made using the affirmative procedure to ensure that Parliament has the opportunity to review its adequacy before it is accepted. That guidance could include measures regarding the donor’s identity and location, the original source of funds and maximum limits on the amount of crypto that may be donated.
It is also worth mentioning that, as we have seen in the press in the last couple of weeks, a leader of a UK political party has been promoting the use of cryptoassets and has gained financially from doing so. We should all spend a moment to reflect on why somebody would want to do that, particularly when cryptoassets are not risk-free. Promoting their use, and the use of gold bars as an investment tool, should be beyond what is acceptable for an elected Member of this House. I encourage anybody, particularly people who purport to lead a political party in this country, to really think about the impact of their actions, particularly when it is for financial gain. On that basis, I commend new clauses 12 and 20 to the Committee.
Paul Holmes
I will touch very briefly on the new clauses that have been tabled. I thank RUSI for the report that the hon. Member for North Herefordshire outlined. I had a meeting with RUSI yesterday, and the fact that it was able to even start to break the ice of my understanding of cryptocurrency and the regulatory framework that is needed was a miracle. It has done a lot of work on this issue, and I congratulate it on coming up with quite sensible proposals and information that goes into detail about the benefits of a ban versus a moratorium.
It is very easy in this House to ban things, but we do not want a ban that creates a worse problem by moving that cryptocurrency upstream. Therefore, as the official Opposition we welcome the idea that there should be a moratorium. We also welcome the fact that the Government implemented an immediate ban pending a review. If a moratorium goes ahead, we need to make sure that an adequate regulatory framework is implemented to prevent some of the exploitative measures that the hon. Member for Hazel Grove outlined in her excellent contribution.
As the hon. Member for North Herefordshire outlined, we are discussing in this Bill Committee probably the most important aspect of the integrity of the electoral process. There are plenty of others in that competition, but the most important aspect of that is foreign interference and donations, including cryptocurrency donations. We are being asked to give the Government our trust—and I do trust the Minister—that these changes are going to happen very soon. The hon. Member is absolutely correct to say that this is the most intense part of the parliamentary process. At the moment, we are being asked to debate new clauses put forward by Opposition parties. We are relying on the Government to give these matters just as much importance, yet they have not given that timescale.
I am torn on new clause 4. I understand the intention of the hon. Member for Warwick and Leamington, but at the moment my feeling is that new clause 4 is really not worth agreeing to. That is because of the evidence given to me by RUSI, which shows that preventing parties and candidates from accepting donations in cryptoassets does not solve the issue of those cryptoassets getting through to candidates and parties, or interested parties, later down the line.
The briefing that was given to me by RUSI about the potential drawbacks of a ban mean that I am not satisfied that new clause 4 would do anything at this precise moment. I rose to speak because I want to sincerely give the official Opposition’s commitment to assist if the Minister wants to engage on a cross-party basis. That has my contention at other stages of the Bill Committee—we stand ready to assist on a cross-party basis to really speed up the passage of elements of the Bill, including on this matter. I would never speak on behalf of other parties, but I am sure that stands for them as well.
Lisa Smart
As the hon. Gentleman is mentioning other parties and as I represent one of those other parties, it is only appropriate that I stand up and agree with him wholeheartedly. Everybody in the Chamber and beyond wants us to get this issue right. It is not a party political point. As the hon. Gentleman is, I and we are ready to work cross-party to get it right. If that means us doing some extra work between the various stages of the Bill, I would be completely content to be part of that.
Paul Holmes
I thank both hon. Members. Who would have thought that I could get some agreement from the Liberal Democrats and the Green party? I entirely welcome it: they are absolutely correct. This is not a party political matter; it is a genuine attempt to fill the void that the Government have created through the lack of a timetable for ensuring that we tackle this issue.
The Minister is correct to say that this is a really complicated issue, so we must get it right in this legislation. Electoral reform legislation usually comes before the House only every decade and if we do not get it right, we will allow malign influences into the political process. I hope that the Minister takes that seriously. We stand ready, between stages of the Bill, to have a meeting on a cross-party basis, perhaps through the Parliamentary Parties Panel. The Opposition think that a moratorium is better than a ban, but the right regulatory framework has to be in place. We stand ready to assist.
Samantha Dixon
New clause 4 seeks to make donations made to a registered political party, candidate or agent impermissible if the donation is made wholly or in part with cryptoassets.
New clause 12 purports to take a power so that the Secretary of State may make regulations, drafted by the Electoral Commission, mandating various requirements relating to the political donation of cryptoassets. It seeks to establish that political donations made via cryptoassets would be deemed impermissible unless those regulations were met. It intends to create an effective moratorium on cryptoasset donations until those regulations would be in force. On 25 March, the Secretary of State published the report of the independent review by Sir Philip Rycroft—sorry, I keep knighting him.
Samantha Dixon
It is only a matter of time.
As Members know, we have accepted the review’s recommendation for a moratorium on the use of cryptoassets as political donations in order to safeguard the integrity of our political finance system from foreign interference, and we have been clear that the Government will bring forward their own amendment on this important matter in due course. In doing so, we will work closely with the Electoral Commission to ensure that our proposals are robust and provide sufficient protection for our democracy.
The hon. Member for North Herefordshire asked when the moratorium would end. We intend for it to end once the Electoral Commission and Parliament are confident that the regulatory environment around cryptoassets is robust enough to protect the integrity of our political finance system from foreign interference. I have noted her comment about the FCA. For those reasons, I ask that the hon. Member withdraw her new clause.
New clause 20 would require registered political parties to compile and submit a one-off report to the Electoral Commission detailing donations received by the party made in cryptoassets for the last five years. We agree that cryptoassets present a significant risk, different from other forms of donation. In line with the recommendations from Rycroft, the Secretary of State has announced the moratorium, which we will bring forward in an amendment to the Bill. I recognise that that amendment would result in the Electoral Commission examining donations already made via cryptoassets before the moratorium was in place.
We are reducing the risk going forward, but I should highlight that there have already been some safeguards in place with regards to donations made with cryptoassets before the moratorium. Both existing law and guidance from the Electoral Commission are clear that that the rules and regulations for political donations made in fiat currency also apply to donations made via cryptoassets. It is an offence to attempt to evade the rules on donations by concealing information, giving false information or facilitating an impermissible donation. It would be an offence to cash in cryptocurrency and then use the resulting funds to make a donation, if that were knowingly done to conceal or disguise a donation from an impermissible donor. As such, it is an offence to attempt to evade the rules on donations.
Guidance from the Electoral Commission also makes it clear that recipients must be alert to donors appearing to circumvent permissibility rules, such as by making multiple donations beneath reporting thresholds. I also highlight the fact that the Electoral Commission already has existing investigatory and enforcement powers when there are grounds to suspect illegal activity, including the power to request information or required documentation.
Samantha Dixon
He did. I invited him to come and talk to me about the Bill; other Members received their letters and came.
Putting that to one side—I am being slightly flippant—this has been a very fast-moving environment, and policy has been formulated very quickly in response to Rycroft. I undertake to work collaboratively with the hon. Member for Hamble Valley and Members of all parties as we go forward with the Bill—this is not the end of its passage.
I note the comment made by the hon. Member for North Herefordshire about having a longer Committee stage, but I am mindful that the implementation of other areas of policy needs to continue—so that we can, for example, introduce votes at 16 in time for the next general election. Although we want to go longer, we also want to go quicker. We will work collaboratively as we go forward.
Paul Holmes
I think the Minister is being slightly sneaky, dare I suggest: she did write to me about having meetings, but there were no proposals in the Bill on cryptocurrency and there still are not. Therefore, that issue was perhaps not within the remit of the legislation. When it came to other aspects of the Bill, I presumed that we would have gone through the usual channels and passages in Committee. The Minister is absolutely right that we did not meet, but that did not include the issue of cryptocurrency in this legislation.
Samantha Dixon
However, had the hon. Gentleman come along, he would have had the opportunity to raise anything he wanted to discuss, as other Members did— I am always happy to meet the hon. Gentleman.
Given the assurances I have provided, particularly that the Government intend to table an amendment on the moratorium period for cryptocurrencies, I hope the hon. Member for North Herefordshire will consider withdrawing her new clause.
Dr Chowns
I tabled the new clause as a probing amendment, and I recognise that the Government have stated their intention to bring other amendments forward. I look forward to engaging constructively with the Government, not necessarily just in formal settings, on the specifics of the issues and concerns I raise. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 6
Overseas electors: postal ballots
“(1) RPA 1985 is amended as follows.
(2) After section (12) insert—
‘12A Overseas electors: postal ballots
(1) The Secretary of State must, by regulation, make provision regarding the casting of postal ballots by overseas electors.
(2) Any regulations made under subsection (1) must provide for overseas electors to be offered the ability—
(a) to request an electronic version of their ballot paper for elections to print using the elector’s own printing facilities; and
(b) in a relevant country, to return their completed ballot paper to a United Kingdom embassy, High Commission or consulate for onward delivery to the relevant returning officer by diplomatic mail to be counted.
(3) For the purposes of this section, “a relevant country” is one where the United Kingdom maintains an embassy, Hight Commission or consulate.
(4) Regulations made under subsection (1) may amend provision made by or under any other Act as necessary.
5) Any regulations made under this section must not be made unless a draft has been laid before and approved by resolution of each House of Parliament.’”— (Zöe Franklin.)
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss the following:
New clause 7—Overseas electors: information on voter registration by the UK Passport Office—
“The Secretary of State must, within six months of the passing of this Act, lay before Parliament a report containing proposals to require the UK Passport Office to provide information on voter registration to United Kingdom residents overseas when they—
(a) apply for a passport; or
(b) apply to renew their passport.”
New clause 8—Overseas electors: Review of feasibility of proposals for facilitating overseas ballots—
“(1) Within six months of the passing of this Act, the Secretary of State must publish and lay before both Houses of Parliament a report on proposals for facilitating overseas electors to vote in parliamentary elections.
(2) The report must consider the feasibility of proposals for—
(a) the use of United Kingdom Embassies, High Commissions or consulates as if they were a polling station asset out in Schedule 1 of RPA1983;
(b) the digital transmission and printing of ballot papers;
(c) voting by telephone;
(d) secure electronic voting;
(e) changes to deadlines and practices as set out in Schedule 1 of RPA1983 to enable earlier despatch of ballots for overseas voters;
(f) informing overseas voters on early registration and voting options;
(g) extended proxy voting arrangements for overseas voters; and
(h) any other measures to improve the speed, accuracy and security of voting by overseas electors as the Secretary of State believes appropriate.
(3) In preparing the report, the Secretary of State must consult—
(a) overseas electors;
(b) electoral administrators;
(c) His Majesty’s Diplomatic Service; and
(d) such other persons as the Secretary of State believe appropriate.
(4) For the purpose of this section, an ‘overseas elector’ is a person who fulfils the requirements for an overseas elector in section 1 (extension of parliamentary franchise) of the RPA 1985.”
This new clause would require the Secretary of State to conduct feasibility studies on proposals to improve overseas voting, as recommended by the Public Administration and Constitutional Affairs Select Committee’s Second Report of Session 2024-6, Review of the 2024 general election.
New clause 42—Overseas electors: reform to voting process—
“(1) The Secretary of State, must, by regulations, make provision to enable overseas voters to vote in person at a United Kingdom Embassy, High Commission or consulate at United Kingdom parliamentary elections.
(2) For the purpose of this section, an ‘overseas elector’ is a person who fulfils the requirements for an overseas elector in section 1 (extension of parliamentary franchise) of the RPA 1985.
(3) Regulations made under subsection (1) may amend provision made by or under any other Act as necessary.
(4) Any regulations made under this section must not be made unless a draft has been laid before and approved by resolution of each House of Parliament.”
This new clause would require the Secretary of State make provision by regulations so that overseas electors can vote in person at United Kingdom embassies, consulates and high commissions for United Kingdom parliamentary elections.
New clause 43—Electoral Register: British Nationals Abroad—
“(1) The Secretary of State may, by regulations, introduce a system to give overseas electors the option to register to vote when they renew their British passport online.
(2) Any regulations made under subsection (1) must be made under the affirmative procedure.”
This new clause would allow the Secretary of State to regulate to introduce a system to allow overseas electors the ability to register to vote when they renew their passport online.
Amendment 3, in clause 80, page 100, line 35, at end insert—
“(ha) section (Overseas electors: Review of feasibility of proposals for facilitating overseas ballots)”
This amendment is consequential on NC8.
Zöe Franklin
New clause 6, tabled by my hon. Friend the Member for Newton Abbot (Martin Wrigley), picks up on the 2024 voting reforms that expanded eligibility for around 1.4 million to 3.4 million people—yet of those individuals, only 191,000 overseas voters are registered. I suggest that that is not a lack of interest in democracy, but a failure of the system to make voting workable for those living abroad. What that means practically is that the UK is now near the bottom internationally for how effectively it enables our overseas citizens to vote.
One of the core problems is postal voting, as it does not work reliably for those living overseas. According to the Electoral Commission, only 52% of overseas postal ballots arrive in time to be counted. Following conversations between my hon. Friend the Member for Newton Abbot and other organisations—we took evidence on this during the Committee evidence sessions—it is clear that overseas voters are seeking practical changes that would enable them to reliably cast their votes securely and more easily and reliably. The proposed new clause sets out methods for doing so, including secure downloading and printing of ballots and returning ballots to embassies and consulates. It is worth noting that such a system is already used in the Netherlands, New Zealand and Spain.
I turn to new clause 7. Another part of the problem for overseas voters is that they are simply not aware that they can register to vote or of how they can do so. One option, discussed in the Committee evidence sessions, is to provide an opportunity at the passport renewal and application stage, when they could be given this information. When a UK citizen applies for or renews a passport, they already provide proof of identity, their overseas address and their last UK address: everything needed for voter registration.
Voters should be simply prompted and given the option to register at that point. My hon. Friend the Member for Newton Abbot is not suggesting that they should be automatically registered, but given that the Bill seeks to roll out automatic voter registration and my hon. Friend has posed the question to the Government, providing an automatic moment to tell people they can register to vote and how to do so would be within the scope of the Bill and an opportunity the Bill could take.
I move on to new clause 8, tabled by my hon. Friend the Member for Henley and Thame (Freddie van Mierlo). New clause 8 and the associated amendment 3, which is consequential on the new clause and also tabled by my hon. Friend, would require the Secretary of State to conduct feasibility studies on improving overseas voting, as recommended by the Public Administration and Constitutional Affairs Committee’s Second Report of Session 2024–25 and its review of the general election. With over 3.5 million British citizens abroad eligible to vote, it is important for the Government to use this Bill as an opportunity to break down barriers to voting so that citizens can be fairly represented.
In the last general election, fewer citizens abroad were registered to vote than in 2019, in spite of an historic expansion of eligibility to vote following the scrapping of the 10-year rule. I have already outlined in my comments on the new clause tabled by my hon. Friend the Member for Newton Abbot that ballots can end up arriving too late for overseas citizens to be able to cast their votes, and proxies can be problematic to arrange if they no longer have contacts here in the UK to cast votes for them.
It is estimated that only 25% of citizens abroad know their rights and that they can vote, and only 48% of postal votes were returned; of course, the number varies slightly depending on which organisation we reference. I have already outlined that there are other countries with systems in place that enable their citizens overseas to cast their vote in an easier, secure and reliable way.
So far it appears the Government have been unwilling to take the steps necessary to make things easier for overseas voters. The new clauses are designed to ensure that the Government take steps to investigate how to make overseas voting easier for our constituents. Can the Minister outline whether the Government will support any of the new clauses in the name of my colleagues? If not, can she outline how the Government intend to ensure that overseas voters are able to cast their ballot in a safe, secure and reliable way?
Paul Holmes
Forgive me, Dame Siobhain, but am I allowed to speak to new clauses 42 and 43?
Paul Holmes
Thank you very much for your nod of assent, Dame Siobhain, and to the Clerk.
This group of new clauses are integral to the Bill. The Liberal Democrat spokesperson, the hon. Member for Guildford, said they relate to one of the holes in this legislation. As I outlined earlier, electoral reform legislation generally comes to this House probably once every decade, and that is why we should treat it as important and use it to try to right some of the wrongs or deficiencies within our electoral system.
We seriously believe that the rights of overseas voters are important. Let us cast our minds back to what seems like an age ago, when we had the evidence sessions of this Bill Committee. Each of our respective political parties, including the governing party, has honourable volunteers trying to advocate the rights of voters living abroad. At the moment, there is no attempt from the Government to try to right some of the wrongs and include overseas voters in our democratic process as they should be.
New clause 43 is similar to the proposals put forward by the hon. Member for Guildford in new clause 8. It would allow the Secretary of State to regulate to introduce a system to grant overseas electors the ability to register to vote when they renew their passports. New clause 42 would require the Secretary of State to make provision by regulations so that overseas electors can vote in person at United Kingdom embassies, consulates and high commissions for United Kingdom parliamentary elections. We believe that those are proportionate and sensible measures to include some overseas voters.
I understand there may be an intervention that says, “What if people cannot get to consulates or embassies?” We believe new clause 42 would be the first step to ensure a full review of the overseas elector system. We understand that some people could be excluded because of geography, but we believe that it would be a step towards increasing the low engagement rate that we have seen in past elections.
On new clause 43, there is a democratic deficit with overseas voters. We think it should be made easier to register to vote as an overseas elector. Therefore, when people renew their passports, we believe that the new gov.uk one-stop-shop website that the Government set up—I used it the other day—would be a perfect online tool for that. That would help the participation rate of overseas electors, which, as the hon. Member for Guildford said, is notoriously low and something we all want to improve.
The Elections Act introduced a series of measures to support British citizens living overseas. That included votes for life, by removing the previous 15-year cap on being registered. However, the Electoral Commission’s evaluation of the 2024 general election found a series of practical obstacles in the way of overseas voters—we heard from them at the evidence session—especially for those who live a long way away and may be unable to send their postal votes back in time.
Only 52% of overseas postal ballots were returned in time to be counted, and the return rate in Australia was a mere 6%, as evidenced in the Electoral Commission’s report on the 2024 UK general election. That is nothing less than tangible disenfranchisement, and that needs to be corrected.
In new clause 8, the hon. Member for Guildford is trying to do that by establishing at least a feasibility study on how we do that. This is very similar to discussions with regard to cryptocurrency; by using those organisations that gave evidence, every party can feed into the review and the feasibility study. That is perfectly admirable, but I argue that that is a longer-term thing. Our new clauses 42 and 43 would bring in practicable steps now to engage that participatory process. As I say, we perfectly accept that it would not solve every issue, but it would include those participation rates.
Samantha Dixon
It is not true that the Government do not have an eagerness to resolve issues for overseas voters. They are legitimate voters who should be able to exercise their right to vote without unnecessary barriers, and we recognise the difficulties that they face in trying to participate. Many choose to vote by post, and improvements are being made in the Bill to the postal voting system, which should be beneficial to overseas voters.
The purpose of new clause 6 is to allow for overseas electors to print their own ballot paper. They would then be able to deliver their completed ballot to the relevant consulate, embassy or high commission, to then be delivered to the relevant returning officers via diplomatic mail. That process could allow overseas ballot papers to be posted earlier and reduce the chance that they arrive too late to be counted.
I have already put forward a range of measures in the Bill to improve the resilience and responsiveness of the postal voting system, including changes to deadlines to allow swifter printing and delivery of postal vote packs. The Government welcome suggestions on further improvements that we could make to our postal voting system, but unfortunately we cannot support this new clause. All ballot papers must be uniformly printed and contain security markings to ensure the secrecy of the ballot and prevent fraud. It would not be possible to replicate that consistently if ballot papers were printed on home printers.
New clause 7 relates to using engagement with the UK Passport Office as a means of encouraging UK citizens living overseas to register to vote. It would require the Secretary of State to lay a report before Parliament within six months of the passing of the Bill. The report would cover proposals requiring the UK Passport Office to provide UK citizens living overseas with information on voter registration for UK elections when they apply for a passport or renew their passport.
The Government are committed to improving electoral registration and are actively exploring ways to do so. We intend to explore and test a range of new, automated approaches that make better use of data and make the process easier and quicker for citizens. Separately to the Bill, we are exploring making better use of data that eligible citizens are already providing for other services, and helping to encourage people to register, vote or update their entries on the register. Our focus is on delivering on automated registration approaches, including those set out in the Bill, which allow us to improve voter registration for a greater range of electors.
The purpose of new clause 8 and amendment 3 is to require the Secretary of State to publish a report assessing a range of options to support postal voting for overseas electors. We always welcome feedback and new ideas about how we can improve any aspect of our electoral system, and I welcome the interest of the hon. Member for Guildford in this topic. As we have said, the Government recognise the challenges for those who live in remote areas overseas. However, I am afraid I do not believe that the costs of drafting and publishing this report could be justified.
Many of the proposals are frequently suggested and have been thoroughly considered already. Though it is possible that they could support the timely delivery of postal votes, they may come with considerable risks. For example, the use of online or telephone voting, or the digital transmission of ballot papers, would create unacceptable risks to the security and secrecy of those ballots. I note that the Bill already contains a number of measures specifically aimed at tackling those issues and improving the resilience and reliability of the postal voting system.
In particular, on the suggestion set out in subsection 2(e) of the new clause—that we should review deadlines and practices relating to the dispatching of postal ballots—the Government have already conducted a review on precisely that matter. The Bill will make a number of changes to improve the system, such as bringing forward the postal vote application deadline and formalising a postal vote determination date. I hope that Members will welcome and support those changes.
I now turn to new clauses 42 and 43 tabled by the Opposition. The purpose of new clause 42 is to require the Secretary of State to make a provision to enable overseas voters to vote in person at UK embassies, high commissions or consulates for parliamentary elections. The Government have considered the suggestion and feel it would be a significant logistical undertaking that would not yield sufficient benefits to overseas electors.
For example, embassies could need to run polling stations covering all 650 constituencies, and every returning officer would need to oversee the activity in every embassy. Each embassy would need to be equipped with all the relevant ballot papers, registers and other materials needed—and could need up to 650 variations of these. Any benefits of embassy voting would be limited to electors living close to diplomatic premises, and it is therefore difficult to justify the additional costs that would arise from the suggestion.
We have no plans to introduce such a system of voting. Instead, we are focused on improving the current systems for overseas electors—such as postal and proxy voting—so that they remain secure, reliable and accessible for everyone. There are a number of measures on postal and proxy voting in the Bill, and I hope Members will be supportive of them.
New clause 43 would introduce a power for the Secretary of State to make regulations to introduce a system to give overseas electors the option to register to vote when they renew their British passport online. The Government are committed to improving electoral registration and are actively exploring ways to do so. There are already existing powers that will allow us to explore and test a range of more automated approaches that involve integrating registering to vote with government services. They will make the process of voter registration easier and quicker for citizens. Our focus is on more automated registration methods that will benefit a greater range of electors.
Zöe Franklin
I thank the Minister for her comments, but I sadly remain unconvinced that we are addressing the significant problems that overseas voters are encountering when they seek to be involved with our democracy. They may live overseas, but they are still British citizens and deserve to be able to cast their vote. I will not press new clauses 6 and 7, in the name of my hon. Friend the Member for Newton Abbot, to a Division. However, I intend to press new clause 8 to a Division, if that is feasible, Dame Siobhain.
Zöe Franklin
I beg to ask leave to withdraw to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 8
Overseas electors: Review of feasibility of proposals for facilitating overseas ballots
“(1) Within six months of the passing of this Act, the Secretary of State must publish and lay before both Houses of Parliament a report on proposals for facilitating overseas electors to vote in parliamentary elections.
(2) The report must consider the feasibility of proposals for—
(a) the use of United Kingdom Embassies, High Commissions or consulates as if they were a polling station asset out in Schedule 1 of RPA1983;
(b) the digital transmission and printing of ballot papers;
(c) voting by telephone;
(d) secure electronic voting;
(e) changes to deadlines and practices as set out in Schedule 1 of RPA1983 to enable earlier despatch of ballots for overseas voters;
(f) informing overseas voters on early registration and voting options;
(g) extended proxy voting arrangements for overseas voters; and
(h) any other measures to improve the speed, accuracy and security of voting by overseas electors as the Secretary of State believes appropriate.
(3) In preparing the report, the Secretary of State must consult—
(a) overseas electors;
(b) electoral administrators;
(c) His Majesty’s Diplomatic Service; and
(d) such other persons as the Secretary of State believe appropriate.
(4) For the purpose of this section, an “overseas elector” is a person who fulfils the requirements for an overseas elector in section 1 (extension of parliamentary franchise) of the RPA 1985.”.—(Zöe Franklin.)
This new clause would require the Secretary of State to conduct feasibility studies on proposals to improve overseas voting, as recommended by the Public Administration and Constitutional Affairs Select Committee’s Second Report of Session 2024-6, Review of the 2024 general election.
Brought up, and read the First time.
Question put, That the clause be read a Second time.
Courts and Tribunals Bill (Sixth sitting)
(1 day, 13 hours ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Chair
We are now sitting in public and proceedings are being broadcast. I remind Members to switch electronic devices off or to silent, please, and that teas and coffees are not allowed during sittings.
Yasmin Qureshi (Bolton South and Walkden) (Lab)
I beg to move amendment 25, in clause 3, page 5, line 38, at end insert—
“(7) The preceding provisions on allocation for trial without a jury do not apply to cases where a defendant has already elected to be tried in the Crown Court prior to the commencement of this section.”
The Chair
With this it will be convenient to discuss the following:
Amendment 12, in clause 3, page 9, line 28, leave out subsections (2) to (4).
This amendment would prevent the provisions on trial on indictment without a jury applying retrospectively to cases where the defendant has elected trial by jury before these provisions become law.
Amendment 43, in clause 3, page 9, line 28, leave out
“trial on indictment of a person beginning on or”
and insert
“cases whose first hearing in the magistrates’ court takes place”.
This amendment would prevent the provisions on allowing judges to try all triable either-way offences with likely sentences of fewer than three years from applying retrospectively.
Yasmin Qureshi
It is a pleasure to serve under your chairmanship, Ms Jardine.
Amendment 25 relates to the retrospective allocation of cases to the Crown court bench division. I am asking that provisions for the allocation for trial without jury do not apply when election has already happened. The point is that in all jurisprudence in the world, retrospective legislation is bad law and bad jurisprudence, going against the rules of natural justice. Why? Because there is a breach of legal certainty.
A core principle of the rule of law is that an individual should know the legal consequences of their actions. People also have a legitimate expectation of the procedural framework in place at the time of the commission of an offence. Retrospective allocation rules disrupt that expectation and weaken trust in our justice system. It is a selective tightening of procedures by the state, which risks an abuse of legislative power and an inconsistency.
Article 7 of the European convention on human rights argues against retrospective criminal law penalties. While it is correct that with this clause we are not talking about retrospective criminal penalty, I would say that article 7 is being breached, because even if penalties are not increased, legitimate expectations are being undermined. The defence and legal representatives prepare cases based on existing court structures, and on known procedures and practices. Suddenly to set new procedural rules and different evidential expectation is just not cricket.
The state is being given an advantage, because there should be an equality of arms. Administrative convenience should not override fundamental rights. The courts have repeatedly stressed that fairness is more important than efficiency, because it generates among people confidence in the state and in the criminal justice system. That is why—I repeat—our judicial system is recognised to be one of the best in the world.
Dr Kieran Mullan (Bexhill and Battle) (Con)
It is a pleasure to serve under your chairmanship, Ms Jardine. I rise to speak in support of amendment 43, tabled in my name, and to amendments 25 and 12. Again, on this issue the Opposition and the hon. Member for Bolton South and Walkden have alighted on the same challenge or issue—the same thing we think is unfair. We have gone about our amendments in different ways, but we recognise the same issue. As we heard, the amendments address the retrospectivity built into the Government’s approach.
The Bill makes it clear that the new allocation regime will apply not only to future cases, but to existing Crown court cases that are due to begin on or after the specified day on which the measures are implemented. In other words, cases that are already in the system, in which defendants may have made decisions on the basis that they expect a jury trial, could be reallocated to a judge-only trial. Our amendment 43 would prevent that by ensuring that the new regime applies only to cases in which the first magistrates court hearing takes place after the change, and not to cases already in the pipeline.
The Government say the change is merely procedural and can therefore be applied to ongoing cases, but that understates what is happening. To change the allocation part-way through proceedings would not simply be technical; it would alter the ground beneath the defendant’s feet. In written evidence, JUSTICE shared our concerns, saying:
“The retrospective application of the provisions is contrary to the rule of law.”
It pointed to the House of Lords Constitution Committee’s legislative standards, which state:
“Retrospective legislation is unacceptable other than in very exceptional circumstances”
and
“must have the strongest possible justification”.
It is worth considering that legislative guidance, which states, first, that enacting legislation with retrospective effect should be avoided. Secondly, provisions that have retrospective effect should be drafted as narrowly as possible. Thirdly, individuals should not be punished or penalised for contravening what was, at the time, a valid legal requirement. Fourthly, laws should not retrospectively interfere with obligations when the liberty or criminal liability of the citizen is at stake. Fifthly, laws should not deprive someone of the benefit of a judgment already obtained. Sixthly, laws should not prevent a court from deciding pending litigation according to its merits on the basis of the law in force at the time when proceedings were commenced. Seventhly, retrospective legislation should be used only when there is a compelling reason to do so. Eighthly, a legislative power to make a provision that has retrospective effect should be justified on the basis of necessity and not desirability.
Having heard those points, we can immediately see the issues. On the principle that laws should not retrospectively interfere with obligations when the liberty or criminal liability of the citizen is at stake, it is clear that that liberty is absolutely at stake in these matters.
On necessity, we have repeated throughout the debate that the Government, in our eyes, have completely failed to make the case successfully that the measures in the Bill are the only way to drive down the backlogs. This morning, we debated the fall in backlogs in some areas seen in the latest published data; that happened without the measures in the Bill, and without other measures that we all think are necessary to help to drive down the backlogs. To our eyes, the retrospective element clearly does not meet the test of exceptional circumstances or necessity.
JUSTICE says that, given that the curtailment of jury trials will have a marginal effect on the backlog, it cannot see how retrospective applications can be justified, and I agree. It argues that it is deeply unfair for defendants who elected for a Crown court trial in expectation of a jury to have their cases heard by a judge alone under a process that did not even exist when they made that choice. Defendants who have opted for a jury trial may be incarcerated on remand awaiting trial by jury. Had they known that this would never materialise, they may well have opted for a magistrates trial and already been released.
There is, then, a risk that the reallocation of cases that are already in the Crown court caseload to the bench division will be subjected to judicial review. There is clearly no ouster clause in the provisions. How do we know whether many of those affected might decide that they should challenge the decision in the courts? JUSTICE suggests that it could happen with each and every case in the backlog that is allocated to trial without jury. This would require additional hearings and the preparation of representatives for every affected case already in the backlog, creating further delays and placing unnecessary burdens on the defendants and the prosecution who, as we have all accepted, are already under significant pressure.
What did the Prime Minister say about retrospective measures? We have already covered what the Prime Minister previously thought about the importance of jury trials, which he seems to have forgotten, but what did he say about retrospective measures? He said that
“they are usually a very bad idea”.
That is a direct quote from our Prime Minister. He said they were usually a very bad idea, yet here is his own Government enacting one.
Of course, we know what the Deputy Prime Minister thought about this issue. He appeared before the Justice Committee on Tuesday 16 December last year. He was asked about this issue by my hon. Friend the Member for Solihull West and Shirley (Dr Shastri-Hurst), who said:
“There are currently in the region of 17,500 prisoners on remand in this country. Will these reforms apply retrospectively?”
What did the Deputy Prime Minister say? He said: “No.” The Committee must have to assume that that was his view of the right thing to do at the time. Why else would he have said no? It is reasonable for us to ask the Minister to explain why the Deputy Prime Minister has changed his mind.
Of course, the Minister herself has already been asked about this in the Justice Committee. My hon. Friend the Member for Bridgwater (Sir Ashley Fox) pointed out that a defendant committed to trial in the Crown court will expect a jury trial. He said,
“you will relook at cases that have been committed for trial at the Crown court and push some of them through the swift court—that is what you are telling me.”
The Minister replied:
“I think that is something we have to look at.”
My hon. Friend the Member for Bridgwater said to her:
“So when the Lord Chancellor said it will not be retrospective, that was not a wholly accurate answer.”
The Minister replied:
“I think the answer he was giving was in the context of a question around the impact on remand hearings; I think that was the context in which he may have addressed that.”
My hon. Friend replied:
“No, he said the changes would not be retrospective, and now you are giving me a slightly different answer. If someone elects to go to the Crown court at the moment, it is on the assumption that there will be a trial by jury. What you are saying is that it might not be; they might be diverted to the swift court.”
The Minister agreed with that, saying: “That is right, yes.” That can be interpreted only as a suggestion that there was no difference with or without a jury as they are still in the Crown court—an extraordinary response.
My hon. Friend the Member for Bridgwater said:
“Minister, if you have been committed to trial in the Crown court at the moment, you are expecting to have a jury trial, and what you are telling me is that once these changes take effect, you will divert those people committed but whose trial has not started into the swift court.”
The Minister agreed, saying: “Yes”. My hon. Friend said to her:
“That is not what the Lord Chancellor said before Christmas.”
The exchange concluded with the Minister making this point:
“It is a change in relation to the procedure that applies to those cases. They are still getting a Crown court trial under the new proposals.”
We are back to an argument that we have revisited a number of times. When the Minister is pressed on a disadvantage in one form or another of having a trial without a jury, she insists that it does not make much of a difference as they will still get a trial that, in her view, has all the merits of a trial with a jury, to some extent. We made some progress on that earlier today, when the Minister acknowledged that there is something special about a jury trial. If there is something special about it, she must surely accept that those people who do not get one are missing something special and are therefore in some way disadvantaged.
JUSTICE is not alone in its criticism of the retrospective element of the proposals. As I have said previously, Mr Robertson, the founder of the chambers that the Prime Minister, the Deputy Prime Minister and the Attorney General all practised at—someone they surely give some weight and credibility to—is critical about this. He writes:
“Those charged by police with offences currently carrying a right to elect a jury trial will go through newly devised ‘allocation proceedings’ where they will lose that right if it appears to the court to be more suitable to have a non-jury trial or if it appears to the court that the value of the property involved exceeds a sum to be set by the government.”
By that, I think he means in relation to the severity of the case.
Mr Robertson goes on:
“This means, for all 80,000 cases in the backlog, more time—days perhaps—will have to be set aside for novel pre-trial proceedings featuring arguments about suitability and value of stolen property. There will be legal challenges to the government’s proposal that such legislation should apply to defendants who have already been charged or are awaiting trial. Applying these changes retrospectively amounts to a fundamental injustice, undermining legal certainty and the long-standing principle that individuals should be tried according to the rules in place at the time of the alleged offence.”
He is right, is he not?
Mr Robertson is not alone. The Bar Council says:
“The application of this proposal retrospectively inevitably will face a constitutional challenge. The Criminal Bar Association estimates that up to 30,000 cases will be affected. Not only is this extraordinarily unfair to those who have already elected the Crown Court, understanding that it is a jury trial, it interferes with legal certainty and runs the risk of tying the courts up in appeals, further increasing the backlogs.”
I hope that the Minister can reflect, as always, on those clear views, as well as the views of thousands of other legal professionals, academics and former judges, that provisions in the Bill are not necessary to bring the backlog down, and therefore should not be enacted retrospectively. They are fundamentally unfair, unconstitutional and against the usual practices of this place when it comes to retrospective legislation. I hope the Minister will support our amendment to make sure that the measures are not applied retrospectively.
Jess Brown-Fuller (Chichester) (LD)
Although I have proposed the removal of clause 3 in its entirety—we will come to the arguments for that later in proceedings—I will speak to amendment 12, tabled in my name, which seeks to remove subsections (2) to (4) of the clause. Those subsections provide that cases can be assigned to be heard by a judge alone, even if the case has already been assigned to be heard in front of a jury.
Rebecca Paul (Reigate) (Con)
It is a pleasure to serve under your chairmanship, Ms Jardine. I am pleased to speak in support of amendments 25 and 12, and particularly in support of amendment 43, tabled in the name of my hon. Friend the Member for Bexhill and Battle.
The amendments all engage with a simple point of fairness. Whatever one’s view of the Government’s wider proposals, it cannot be right to change the rules after a defendant has already elected for a Crown court trial. Such defendants made their choice under the current rules. They did not opt for Crown court for any reason other than the fact they would get a jury trial, so for the court to remove that choice from them without any hearing would frankly be shocking.
Let us keep in mind that some of these people will be innocent, and remember that some may have chosen the magistrates route if they had known that going to the Crown court would not give them the jury trial they seek. The retrospective application of new rules is deeply unfair. Whatever side of the jury trial argument we are on, surely we can all agree that those who have already opted for jury trial should have that decision respected.
The amendments differ slightly in drafting but all try to achieve the same thing: to ensure that where somebody has already elected for jury trial, that choice is respected and the new regime does not operate retrospectively. Amendment 25 would disapply the new allocation rules where a defendant has already elected Crown court trial before commencement. Amendment 12 would strip out the retrospective commencement provisions. Amendment 43 would instead tie the new regime to cases in which the first hearing in the magistrates court takes place after the change in the law. Those are different routes with the same fair and sensible objective.
This should not be controversial. If the state tells a defendant that they have a right to elect for a jury trial and they exercise that right, it is manifestly unfair to turn around later and say that the right has vanished and that their case will now be dealt with under a wholly different system. In fact, to call it unfair fails to make the point seriously enough. It would amount to a violation of one of the most foundational principles of our legal system: that retrospective legislation of this kind runs contrary to basic rule-of-law principles and requires the strongest possible justification.
As JUSTICE, the cross-party law reform and human rights organisation put it in written evidence:
“The retrospective application of the provisions is contrary to the rule of law.”
It went on to state:
“It is deeply unfair for defendants who elected Crown Court trial in expectation of a jury to have their cases heard by a judge alone under a process that did not…exist when they made that choice.”
I always endeavour to see all sides of a given issue, but in this case I honestly struggle to see any argument against those statements. I hope the Minister will agree that retrospective application is fundamentally unfair.
If the Government are not moved by appeals to basic fairness, they should at least be moved by their own stated objective of reducing delay. The Bar Council is unmistakeable in warning us:
“The retrospective provisions may also be subject to numerous legal challenges.”
That is exactly the opposite of what Ministers say they are trying to achieve. If the Government push ahead with retrospective application, they risk drawn-out legal challenge, more hearings and more uncertainty in cases that are already in the system. Measures explicitly brought in to help to reduce the court backlog will, perversely, multiply it. This is exactly the sort of illogical thinking that Committee stage is intended to weed out. I very much hope that the Minister will engage on this point.
Our concern is echoed elsewhere in the written evidence we received. Dr Samantha Fairclough’s detailed submission to the Justice Committee states clearly that the Government’s plan to give the Bill retrospective effect is
“unfair…will create significant additional work in allocating those cases…and likely result in appeals.”
JUSTICE makes a similar point, saying:
“Reallocation of cases already in the Crown Court caseload”
could lead to judicial review challenges, further hearings and additional
“burdens on both defendants and the prosecution”.
Even on a practical level, the amendments are eminently sensible. They seek to diffuse the legal landmine that the Government are in danger of stepping on, and would avoid yet more work for a system that is already under intense strain.
As I have stated, the amendments are nothing other than fair and reasonable—in fact, they are a minimal safeguard. My colleagues and I have been clear that we should not be going ahead with these reforms, but if Ministers insist, the very least they can do is to ensure that they operate prospectively rather than retrospectively. People should be judged and dealt with under the rules in force when they made their election, not have the rug pulled from beneath them halfway through proceedings. That is why I support amendments 25, 12 and 43, and I urge the Government and the Minister to accept at least one of them.
Joe Robertson (Isle of Wight East) (Con)
To the extent that it is necessary, I declare an interest in that I used to be a solicitor regulated by the Solicitors Regulation Authority and registered with the Law Society. I, too, support amendments 25, 12 and 43. They are not technical or political amendments, but constitutional amendments, and I hope that the Committee will consider them in that spirit.
Let me begin with some facts that I think we can all agree on. There are thousands of defendants who are currently part-way through the criminal justice process having made a formal, consequential and, they thought, irreversible election to be tried by jury in the Crown court. They made that election under the law as it existed when they made it—indeed, as it exists today. If the Bill passes unamended, that election, that choice, that right, which they have already exercised, will be taken away from them before they ever reach trial. It is a bitter irony that they have not yet reached trial because of the situation that the country is in. I accept that it is not this Government’s fault that we are where we are, but the state is the state, and the Government are responsible for it. For those people to be awaiting trial because of the state and then have their rights taken away from them by the state because of this Government’s actions goes far beyond disagreement on the Bill and on the principle of jury trial, no matter how important that is.
Alex McIntyre (Gloucester) (Lab)
I am sure that we are all looking forward to a rather long afternoon listening to the hon. Member’s speech. Does he agree that this is also about the victims, some of whom the Committee heard evidence from, who did not have a right not to have their freedoms taken away, did not have a right not to be attacked, do not have a right to elect, do not have a right to speed up the process, and do not have a right to an earlier trial, before it collapses when other people pull out of the process? While he is making a very important point about ensuring that we have a just system for defendants, does he agree that we must also ensure that victims are centred in this?
Joe Robertson
I look forward to spending the afternoon exchanging ideas with the hon. Member. Let me begin by expanding a little on what I had intended to say. I do not agree with the narrative that it is either the defendant or the victim who wins out, not least because not every defendant is a guilty person. I would also say that victims of the worst crimes, when they are waiting for a guilty person to be found as such, already face the backlog. They will not have a choice to go to the magistrates court, because those are not either-way offences.
The jury system will always take longer, and the people who have suffered the worst will always be subject to the longer jury trial. There is a reason why that is right: a jury is asked to take a decision on whether something happened, and its decision could mean that someone loses their liberty for a very long time. The criminal system in this country is tilted in favour of the defendant, so I am afraid that it is tilted in favour of people who commit heinous crimes. However, in our system we must believe that those who commit heinous crimes will be found out, convicted and serve the very toughest sentences.
Yasmin Qureshi
Does the hon. Member agree that trying to divide our citizens into victims and defendants—the good and the bad—is not the best way forward? Defendants can themselves be victims, and victims can become defendants. It is important that we have a system of principle that applies to everyone. There is an assumption that we should favour of the victim and everything should be stacked against the defendant, but all of us, as individuals, could become defendants.
Joe Robertson
I do. Perhaps I could encourage a Tea Room conversation between the hon. Members for Gloucester and for Bolton South and Walkden, in the hope that her wisdom might rub off on her hon. Friend when it comes to pitching this as a contest between victim and defendant.
Of course, on a technical point, it is not the victim or complainant who brings the case; it is the Crown—the state. Yes, there is a victim who must see justice, but in criminal law, the offence is seen as a crime against the state. In countries where there is not a monarchy, it is the people versus the defendant, because the defendant’s crime is an affront to the people. We have a monarchy in this country, and we know it is the Crown against the defendant.
Dr Mullan
Further to the intervention from the hon. Member for Bolton South and Walkden, it might be helpful to remind the Committee of the letter written by dozens of organisations representing women and girls. I was very clear that that letter actually represented women and girls as victims, but it absolutely makes the hon. Lady’s point about the criminalisation that is sometimes attached to women and girls as a result of coercion and other circumstances that they might go through, so they have an interest in ensuring that they have access to a fair trial. As she said, the division between the two is not as black and white as some Government Members seem to want to make it.
Joe Robertson
Yes. Let us get back to principles here. I support what the Government are trying to do in reducing the backlog. Of course, that is the right thing to do, and it benefits both those awaiting trial and the victims and complaints who want to see justice.
On amendment 25, my particular issue here the retrospective application of the law. Even if Members agree with the Government that either-way offences should go and that people who commit or are accused of committing a crime in the future should no longer have the right that people used to, the clause will apply that new law to things that have already happened. That is highly controversial and an affront to the common law legal system in this country.
Alex McIntyre
It is refreshing to hear a Conservative Member defending the European convention on human rights. Can he confirm whether it is now the Conservative party’s position to support the ECHR, or is it for withdrawing from it, as it was last year?
Joe Robertson
I continue to be grateful to the hon. Member for hanging on my every word, and I am grateful for the opportunity to expand on that. As I said, it is a basic tenet of English common law, and the ECHR effectively replicates what is already in our legal system. I am very happy to engage in a wide-ranging debate on the ECHR, but I fear that you, Ms Jardine, are also hanging on my every word and may stop me.
Dr Mullan
I absolutely think that we should leave the ECHR, because I do not like the mechanism that it operates under, but I absolutely support some of the rights and protections in principle that it advocates. I am struggling to see why there is a contradiction. There are lots of times when we might support elements of proposals without supporting the manner in which they are handed down.
Joe Robertson
Again, I invite a Tea Room conversation —although we may have to meet somewhere geographically in the middle of the Tea Room.
Any measure that materially and detrimentally alters the regime to which a defendant is subject in a way not foreseeable at the relevant time engages article 7. The Government’s own ECHR memorandum on the Crime and Policing Bill of April this year acknowledged that article 7 is engaged where the defendant could not “reasonably have foreseen” the application of a measure “at the material time”. At least we can agree that article 7 is at least engaged. A defendant who elected Crown court trial under the existing law could not have foreseen that that election would be nullified, not least of all because some such defendants have been waiting rather a long time—and that is the issue this Government are trying to deal with. I say again that I support what they are trying to do, although I disagree with some of the means they are using to achieve those aims. This is precisely the kind of unforeseeable retrospective detriment that article 7 exists to prevent.
While we are on the ECHR, I turn to paragraph 2 of article 6, on the right to a fair trial, and pending proceedings. Paragraph 1 guarantees the right to a “fair and public hearing” before an “independent and impartial tribunal”. The European Court has repeatedly held that the principle of the rule of law and the notion of a fair trial preclude any interference by the legislature—that is, Parliament—other than on “compelling grounds of the general interest”, with the administration of justice designed to influence the judicial determination of a dispute. This principle was established in a number of cases and applied domestically in Reilly (No. 2), 2014.
Where a defendant has an existing elected case in train, the application to them of the new clause 3 regime is precisely the form of retrospective interference with pending proceedings that article 6 prohibits. The Government must demonstrate compelling grounds of the general interest. Processing efficiency—the rationale advanced for these reforms—does not satisfy that threshold, in my view. I say again that we are talking about cases that are already in proceedings.
The Government’s own Criminal Procedure Rules 2025 identify, as part of the overriding objective, the recognition of the rights of a defendant, particularly those under article 6 of the European convention on human rights. Retrospective removal of the elected mode of trial is directly at odds with the overriding objective that the Government have enshrined in their own procedure rules.
I turn to the more recent Reilly litigation that went on between 2013 and 2015, because, although this is a historic principle, it is one that has been repeatedly upheld. The R (on the application of Reilly) v. Secretary of State for Work and Pensions litigation provides, in my view, the closest and most instructive domestic parallel.
In 2013, Parliament fast-tracked the Jobseekers (Back to Work Schemes) Act 2013 to retrospectively validate regulations that the Court of Appeal had already found to be unlawful. The Act was introduced before the Supreme Court appeal was complete. That is a direct analogy to the present situation, in which the Bill would alter the mode of trial for defendants who are already part-way through criminal proceedings.
In Reilly (No. 2), Mrs Justice Lang held that the 2013 Act was incompatible with article 6(1) of the ECHR, in that it had interfered with—
The Chair
Order. I gently remind the hon. Member not to stray too far from the subject under discussion. We have a lot to get through.
Joe Robertson
I am grateful for that indication, Ms Jardine, and I understand. It had interfered with ongoing legal proceedings in favour of the state, which is exactly what is happening here: legal proceedings are being interrupted in order to favour the state, removing from appellants what would otherwise have been a conclusive ground of appeal without justification by compelling grounds of the general interest.
The Court of Appeal upheld this conclusion, with Lord Justice Underhill emphasising the importance to be attached to observance of the rule of law. Mrs Justice Lang further held that the absence of consultation with the representative organisations, which I say has happened here too, and the lack of scrutiny by relevant parliamentary Committees may have contributed to some misconceptions about the legal justification for the retrospective legislation. She said that the Government’s ECHR statement to Parliament failed to explain that a departure from the legal norm—exactly what is happening here, in my view—was being sought.
Those observations plainly apply with equal force to this Bill. The parallels are direct: the Government are introducing new legislation that will alter the legal position of defendants who are already engaged. As in Reilly, no compelling grounds of the general interest have been articulated for why existing elected cases must also be captured. Lots of arguments have been made about why either-way offences should no longer exist, but not why that must be the case for people who have already made an election in that way.
Joe Robertson
I will go on to my next bit, which is even more relevant than my previous bit.
The Police (Detention and Bail) Act 2011 is Parliament’s most recent example of retrospective criminal legislation. It reversed the effect of the High Court’s decision in R (on the application of Chief Constable of Greater Manchester Police) v. Salford Magistrates’ Court and Hookway on the calculation of detention time under the Police and Criminal Evidence Act 1984, and did so by deeming the amendments always to have had effect. They had not.
The then Policing Minister described the matter as too urgent to await a Supreme Court appeal. This Government have made no case that the current backlog is so urgent that it must be all shifted to the magistrates court. It wants to tackle the backlog, yes, by changing the right to elect, but removing people who have made that election into a different court is something quite different. The Government have not argued that it is too urgent. That is unsurprising, because it is plainly not. Even in the emergency context of the Police (Detention and Bail) Act, when the Government faced systemic liability for unlawful detentions, the retrospective approach attracted intense criticism, just as I am criticising this Government. It was acknowledged in the explanatory notes that it was deliberately retrospective and it remains subject to potential ECHR challenge.
It is interesting to note that this legislation may also be subject to challenge, even if it leaves this place and passes into law. No equivalent emergency exists here; there is no systemic liability to reverse. The War Crimes Act 1991 is cited as a paradigm case of retrospective criminal legislation, allowing proceedings for war crimes committed in German-occupied territory in the second world war, notwithstanding that the defendants were not British at the time. Parliament considered that the exception was justified by the gravity of the crimes involved—they were heinous crimes—but even then the Act was controversial.
Alex McIntyre
I thank the hon. Member for giving possibly the longest wind-up in the history of wind-ups. I have two questions for him. First, does he recognise that both examples of retrospective legislation that he mentions were made by a Conservative Government? Secondly, what number does the backlog need to hit before he deems it urgent that the Government tackle it?
Joe Robertson
I think it is for the Government to set out the state of emergency. I do not accept that there is one; in fact, I do not think the Government are saying that there is one, when it comes to taking away a right that someone has already elected. We are not talking about getting rid of jury trials for a trial for either-way offences. I disagree with that; we have dealt with that, and we will go back to it. In this clause, we are talking about applying that to a number of people who have already made an election. It is for the Government to set out the emergency. I do not believe that there is one, and I think that they have not set it out because they do not believe that there is one.
Dr Mullan
As I pointed out, at some point in these proceedings, even the Justice Secretary did not think it necessary. When he was considering these matters, the Justice Secretary agreed that it was perfectly reasonable for it not to be retrospective. We are actually making an argument with which, at one point, the Justice Secretary agreed.
Joe Robertson
The shadow Minister is absolutely right. I invite the Minister to address that point head on in her speech. Even the Government themselves do not seem to be saying it is an emergency, whereas when any previous Government, Conservative or Labour, have tried to enact something retrospectively, they have at least made the case for an emergency. Heinous crimes committed during a war, loopholes that have left the state open to repeat, ongoing litigation into perpetuity—those are the sorts of threshold that have been met in previous times.
I hope that that goes some way to answering the question asked by the hon. Member for Gloucester. Let us hear from the Government why retrospective application in this case is so urgent. The answer cannot be about future cases; it must only be about those who have already elected trial.
I draw attention to a post on the UK Constitutional Law Association blog in July last year, which addresses and objects to the idea of using the Crown court backlog crisis to justify this provision. It is not an adequate justification that it is equivalent to wartime. Jury trials were not suspended even in the first world war, the second world war or the covid pandemic, all of which produced a more acute systemic issue than the one we have today. The present difficulties, however real they are—and I say again that they are real—do not plainly reach that threshold.
The Government’s own stated policy is that they must balance conflicting public interests and consider whether the general public interest in the law not being changed retrospectively may be outweighed by any competing public interest with regard to ECHR. The Solicitor General’s answer to a parliamentary question set that out explicitly. For the sake of brevity, I will not repeat that answer. However, whatever views are taken about that balancing exercise, there appears to have been no such exercise on which to take a view. It is apparent in the Bill’s explanatory notes. No compelling justification for retrospectivity is advanced. It should be in the notes, and it should have been done already, but at least the Minister can address it now.
This has not been a case of closing an unforeseeable loophole. It is not an emergency requiring same-day legislation. It is not a response to a systemic injustice in wartime. It is a policy reform that operates perfectly well on a prospective basis if that is what the Government want to do, although I do not agree with abolishing jury trials. But the retrospective reach of clause 3 appears—I hope—to be inadvertent. The amendments would correct it.
The Government’s reform agenda could be delivered even if the amendments are made. Future cases would be fully captured by the new regime applied prospectively. Where defendants have already elected—and there will be relatively few of those over the lifetime of this law, compared with all the crimes that it will capture in future—their cases can be resolved under the existing system. It raises the question of what happens when we take a number of cases and put them straight into the magistrates courts now, rather than allowing the natural wasting away of the election to trial by jury for those who face what, today, are either-way offences.
The cost of honouring the amendments is minimal, even to the Government. The cost of not honouring them is significant. I will not repeat the arguments that I have already made. In my view, the Committee should support amendments 25, 12 and 43. They are constitutionally proper and correct, legally secure and practically proportionate. The Government have offered no principled justification for the retrospective application of clause 3. In the absence of such justification, the presumption against retrospectivity must surely prevail. The Government can still achieve the aims of the Bill, no matter how much I disagree with a number of them.
The Chair
I gently remind Members that we have a lot to get through today. If they could keep their comments succinct and non-repetitive, that would be very helpful to everyone.
The Minister for Courts and Legal Services (Sarah Sackman)
I will endeavour to do just that, Ms Jardine.
I thank my hon. Friend the Member for Bolton South and Walkden and the hon. Members for Bexhill and Battle and for Chichester for their amendments. Albeit with slight variations in wording, the purpose of amendments 12, 25 and 43 is to prevent the new allocation test for the bench division set out in clause 3 from applying to any cases received in the Crown court prior to the commencement of the clause.
Two of the amendments refer to cases in which the defendant has elected for trial in the Crown court. The hon. Members did not think that judge-alone reforms should apply in such cases. To be absolutely clear, clause 3 does not apply to trials that are already under way. It provides that the new provisions will apply to trials on indictment beginning on or after the specified day, which must fall at least three months after commencement. That means that cases in the existing Crown court caseload in which a trial has not yet begun may be considered under the new allocation test for the bench division. Cases already assigned to the Crown court will not be returned to the magistrates court because of these reforms. Where a defendant has elected for their trial to be heard in the Crown court, that case will remain in the Crown court. Cases in which a jury trial has already begun will always proceed with a jury trial.
The question was asked, “Why did the Government choose, through this legislation, to apply the procedural changes to the existing caseload?” The answer is simple, and I regard it as compelling: it will enable us to start tackling the backlog sooner, delivering swifter justice for victims, defendants and witnesses alike, without compromising defendants’ rights or fairness. “Retrospectivity”, which is a word that we have heard a lot in this debate, is a misnomer here. Cases that have already been assigned to one court jurisdiction, whether that is the magistrates court or the Crown court, will not be allocated to another jurisdiction. We will not be returning cases to the magistrates court when a defendant has elected for a trial in the Crown court.
Trials should be tried in accordance with the law as it stands, as at the commencement of trial. Critically, the application of what are procedural changes to existing cases is consistent with long-standing legal practice, as can be seen from judge-only trials for jury tampering under the Criminal Justice Act 2003 and the application of the increase in magistrates court sentencing powers in 2024.
I disagree with the hon. Member for Isle of Wight East: there is no application of article 7 in this context, because we are dealing with a procedural change. We are not engaging the criminal law as it applies to offences and to penalties. As a general principle, a trial should proceed in accordance with the procedural law in force at the time at which the trial begins. That is lawful and consistent with precedent. It is a practical step to ensure that courts can make best use of their available capacity, and it avoids two different procedures running in parallel in the Crown court as a result of arbitrary cut-off dates.
Implementing structural reform in our courts will take time. As I said in answer to the hon. Member for Bridgwater on the Justice Committee, we must pull every lever at our disposal to improve efficiency because the situation is urgent. Yes, on a number of occasions I have used the word “emergency”. A critique put to me by Members of the House, including the hon. Member for Bridgwater, and by the media is, “It is going to take you far too long to get this backlog down.” Well, that is why we must pull every lever, whether on investment, on efficiency or on these structural reforms. We cannot wait years for them to kick into effect. That is why we have made our choice. I urge my hon. Friend to withdraw her amendment.
Yasmin Qureshi
I will not say any more. I think we have discussed retrospectivity enough. As I have said from the beginning, retrospective legislation is always a bad idea, in any country. People are entitled to certainty about the law. If we start eroding that fundamental principle, God knows where we will stop. I do not intend to press the amendment to a vote, but I hope that the Government will consider the issue further. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chair
I remind Members that amendments are voted on at the point they fall in the Bill, so any Divisions on amendments 12 and 43 will come later.
Dr Mullan
I beg to move amendment 40, in clause 3, page 5, line 38, at end insert—
“(7) Where a court has determined in accordance with this section that a trial is to be conducted without a jury, the defendant may appeal that decision if he can demonstrate that the circumstances of their case are such that trial without a jury would amount to a breach of the principles of natural justice.
(8) An appeal made under subsection (7), must not be heard by the same judge who made the original determination.”
This amendment would allow a defendant to appeal the decision to have a judge-only trial on the basis that it is in the interests of natural justice for the trial to be with a jury.
The Chair
With this it will be convenient to discuss the following:
Amendment 18, in clause 3, page 9, line 17, leave out “no” and insert “a”.
This amendment entitles a defendant to appeal against a judge’s decision to allocate the case for trial by judge alone.
Amendment 28, in clause 3, page 9, line 20, after “hearing” insert—
“only if the prosecution and defence have waived their right to the hearing”.
Dr Mullan
I rise to speak in support of amendment 40 in my name and to consider other related amendments. At this point, we are considering in more detail the allocation decisions, how they work in practice and the likely legal risks and pitfalls inherent in the new process.
I will begin by laying out the process that will exist. The Bill will introduce a Crown court bench division where cases are tried by a judge alone. To ensure that jury trials remain in place for certain crimes, only triable either-way cases that are assessed as likely to receive a custodial sentence of three years or less will be allocated for trial in a bench division. Indictable-only offences cannot be tried there.
To determine whether a triable either-way case should be allocated for trial in a Crown court bench division, a Crown court judge will assess whether the offence or offences to be tried are likely to attract a custodial sentence of three years or less. That decision will be taken at the first opportunity for the defendant to enter a plea in the Crown court using a plea and trial preparation hearing. If cases involve multiple defendants, judges must assess eligibility based on the highest likely sentence of any one defendant. Offences to which defendants have pled guilty are not included in the assessment of a likely sentence, and youth defendants are not exempt from the bench division.
The bench division will operate as a lower tier in the existing Crown court—that is important. The Bill will not create a separate jurisdiction or intermediate court. The usual Crown court procedures will apply in the bench division, including the appeal route from the Crown court to the Court of Appeal. Judges sitting in the bench division will also retain the full sentencing powers of the Crown court and may impose sentences of more than three years where appropriate, even if the allocation was initially based on the likelihood that they would not do that.
The Bill and explanatory notes are clear that no new appeal route is created for decisions to allocate a case to the bench division. It is important to set out the distinctions between different types of allocation decisions both now and in the future, if these proposals are passed. There are some elements of allocation decisions at present that we would all agree are not subjective, but based on offence classifications. I may be wrong, but I do not imagine there remains much debate about allocation decisions in those scenarios. Summary and indictable-only offences will be heard in the magistrates court or the Crown court based on that classification, though there are some exceptions that I will ask the Minister to clarify later.
Under the Government’s proposed reforms, there are similar black and white scenarios, with summary-only remaining with the magistrates and indictable-only going before a judge and jury. However, we will continue to have decisions on either-way offences, which consider the subjective—the not black and white—consideration of what the likely sentence length is. The consequences for defendants are entirely new territory for criminal defendants for the offences concerned.
Of course, defendants may disagree with allocation decisions at present, and may want to stay in the magistrates court, but the court may decide that they must be heard in the Crown court. However, importantly, as I understand it, a defendant cannot actually legally challenge that decision through judicial review. I am not a legal expert, and if the Minister receives advice that that is wrong, I would welcome that clarification, but as I said, my understanding is that judicial review would not be possible in that scenario. I also understand that it would not be the case in relation to the Crown court where the allocation would take place. Importantly, as I pointed out at the start, this will be taken in the Crown court, not some new or different court, so we should read across the rights and procedures that already exist in the Crown court.
As I understand it, triable either-way offences, if heard in the Crown court, are then in legal terms considered to be a trial on indictment. If a triable either-way offence is tried in the Crown court, it becomes a trial on indictment as if it were an indictable offence as per the other offences that are always indictable. Again, I am happy for the Minister to say whether that is the case, but that is my understanding of it.
Why is it important? Because there are constraints on the use of judicial review in relation to a Crown court trial on indictment. Under sections 28 and 29(3) of the Senior Courts Act 1981, no appeal by way of case stated or judicial review is possible in respect of matters relating to trial on indictment, so it will not be available with regard to any decision relating to the conduct of a Crown court trial on indictment. These measures, in this important way, are specifically taking away an existing legal right: the right to challenge an allocation decision. That cannot be right, fair or reasonable, and I am not even confident, as it is not mentioned, that I have seen in any of the Government publications related to this that it is something the Government have recognised they are doing.
It is also potentially a mistake in another way: in relation to the efficiency and smooth running of the courts that the Minister is seeking to achieve. At conviction, the defendant can apply for leave to appeal in the Crown court. At that stage, is the proposal that the defendant will be prevented from appealing the allocation by the judge, so a defendant might argue that a judge could act unlawfully on allocation with no appeal safeguard?
I have not had my attention drawn to an ouster clause. More generally, there is the provision that there is no specific appeal to the decision in isolation, but not an ouster clause in terms of the appeals that are allowed in the Crown court. I am confident that there will be legal arguments about that, at least to start with, until common law settles the matter. It would be extraordinary for the Government to introduce such a clause. We might find examples where a judge in the Crown court has completely incorrectly and legally unjustifiably allocated a case, and when that is brought up as part of the appeal at the point of conviction, be told that that is not a matter on which the court can have an opinion. I think that would be extraordinary.
Does the Minister think it would be right, if it forms the basis of an appeal against allocation happening after conviction, for the Court of Appeal to be constrained from having the power to return the case for trial by jury if it agrees the allocation decision was unlawful? I cannot believe that she would think that was right. Therefore, we create the exact opposite effect of what we are seeking to do—to make the best possible use of Crown court time—particularly in relation to barristers and other people working across the courts, by not allowing an earlier appeal. That is with regard to both appeals that take place and, more importantly, where a whole new trial may have to be ordered before a jury because it is found that the initial allocation decision was wrong.
Consider the scale on which that may happen—hundreds of cases may suddenly have to be retried. If, for example, the measures are in place for seven, eight or nine months, there is no onus or expectation regarding at what point a defendant—a convicted criminal at that point—might seek legal advice and then successfully choose to challenge an allocation decision. That would then be heard by a court, and then that court of appeal will make a ruling as to whether the circumstances under which that person was allocated were unlawful and a retrial with a jury is required.
If any other case has been allocated under those same circumstances that the appeal court determines are unlawful, every single one of those who had been convicted would have the right to say that the precedent has been set that the way they were allocated was unlawful and has to be retried. That could happen six months, a year or two years in. We are talking about a huge potential reallocation and retrial of all cases if the Minister insists that there should not be an appeal on the right of the allocation decision.
A separate initial safeguard—an appeal against allocation at the stage that it happens—is not only the right thing to do to ensure that an existing right is not eroded, but the more efficient way to approach these things. The amendment is sensible, rational and will provide greater confidence in the new court that the Minister is insisting on creating, and its processes.
I ask the Minister to clarify an important matter of law in relation to the allocation decisions in the first place—just the sort of thing that might be appealed if it is not clarified by the Minister during the passage of the Bill or through amendments to the legislation. We are clear about the idea of summary offences that go to the magistrates court. Indictable-only offences will have a trial with a judge and jury. In a number of cases, however, the offence is triable either way, but provisions that this House has introduced mean that in particular circumstances it can be tried only on indictment.
Some examples of that are three-strikes class-A drug trafficking offences, three-strikes dwelling burglary offences, dwelling burglaries involving violence or threats of violence, and the minimum mandatory sentences for firearms offences. Those were decisions taken by Parliament to say that, while the offence more generally could be tried either way, these cases in those circumstances are too serious to be heard by a magistrates court; they must be heard by a judge and a jury.
What are the consequences of the Bill on those scenarios? Will the Government respect the will of Parliament in relation to considering those cases to be more serious, as the Government accept for those cases that retain a jury trial, and that they should therefore remain with a jury trial? It is important that we have clarity on this issue specifically because, as I said, it is something that would almost certainly be subject to appeal if clarity is not provided.
I finish by reiterating the point that, if the Government refuse to accept our amendment, they will be actively legislating away a right to appeal allocation decisions that currently exists in our system. They will be actively choosing to do that if they are unable to insert a similar right through other means, such as through our amendment or an amendment at a future stage. I think it is important that the Committee reflects on that, and I hope the Minister can agree.
Jess Brown-Fuller
I will speak to amendment 18, tabled in my name, which seeks to ensure that a defendant has the right to appeal against a judge’s decision to allocate a case for trial by judge alone, whether because of the likely sentence length or because the case is assessed to be complex or lengthy. I will also be supporting amendment 40, tabled in the name of the shadow Minister, and amendment 28, tabled in the name of the hon. Member for Bolton South and Walkden.
As stated, triable either-way offences, with potential sentences of up to three years, could be tried in the new Crown court bench division swift court. I argue that cases where a defendant may receive a sentence of up to three years are not minor offences; we are talking about life-changing sentences. Often in this category, we are talking about possession with intent to supply, actual bodily harm, death by careless driving, or section 20 unlawful wounding or grievous bodily harm, including where there is a grave injury. We must safeguard those sorts of cases against rough justice—an issue that much of the legal profession has warned could arise. It is vital that the Government provide an appeal system against decisions on whether to allocate a case for trial in front of a judge or jury.
I would like some clarification from the Minister: when we talk about summary offences, indictable offences and then triable either-way offences, are the measures being introduced in this Bill removing the concept of triable either-way offences? Are we then moving all those categories of offences into what are described as summary offences—these offences that carry long, life-changing sentences?
Briefly, amendment 28 would add a procedural requirement, but it is an important one because it would mean that the court could not simply decide, on the papers, to move a case to a judge-only trial; both parties would have to have first been given the opportunity to argue the point at a hearing, and only if both sides expressly gave up that right could the court proceed without one.
That goes back to the point that I raised earlier about the Canadian model, which I know the Government have been exploring and have spent time in Canada looking at. There, people have the right to elect a judge-only trial, so there is still an element of choosing what that looks like. That is not what this Government are proposing; they are proposing that there be no choice in the system, and that there be no legal precedent for it. I would appreciate the Minister’s answer to that.
Yasmin Qureshi
I will speak to amendment 28, regarding page 9, line 20 of the Bill. Essentially, the amendment states that, if the prosecution and defence waive their right to a hearing, the court can then make a determination under proposed new section 74AB of the Senior Courts Act 1981. That proposed new section, which will be introduced by clause 3, contains provisions regarding what the court must look at when determining allocation, such as whether a jury trial is to be declined. It is a fairly self-explanatory amendment, but a vital safeguard.
Rebecca Paul
I will speak in support of amendment 40, tabled in the name of my hon. Friend the Member for Bexhill and Battle, amendment 18, tabled in the name of the hon. Member for Chichester, and amendment 28, tabled in the name of the hon. Member for Bolton South and Walkden.
Before I get into my speech, I think that the hon. Member for Chichester raised a really interesting point about whether we will ever really talk about “triable either-way offences” going forward, if these changes go ahead. In effect, we will have the rather strange situation—to take the example of category 2 sexual assault or death by careless driving—of either summary offences or those with a full Crown court and jury. It will be interesting to see how that all flows through in the definitions. That is an interesting debate, but probably not one that everyone wants to have right now. I will move on from such interesting questions, and I can tell that the Minister is delighted that I have decided to do so.
Linsey Farnsworth (Amber Valley) (Lab)
This is a decision that magistrates make every day. Every sitting day, they look at allocation, and they do not put their finger in the air to decide what the sentence might be. The Sentencing Council provides guidelines for each individual offence. I know that the Conservative party does not like the Sentencing Council and has at times called to get rid of it, or Conservative Members have, in particular the former shadow Justice Secretary who has now moved to the Reform party, the right hon. Member for Newark (Robert Jenrick). The sentencing guidelines, however, are used by magistrates every day. Sentencing guidelines are also already available to Crown court judges. Does the hon. Lady accept that this is not something that judges will do willy-nilly? There are guidelines and factors that have to be taken into consideration, which is a safeguard in itself to ensure a fair decision.
Rebecca Paul
The hon. Lady is absolutely right that magistrates are doing that now, frequently and—as far as I am aware—fairly well, but we have to remember that they are doing it for low-level cases. In fact, their sentencing powers have increased only recently. The key point is that we will have an additional process. The magistrates do it, but now we will have this additional process at the Crown court level to decide between judge only and jury.
Obviously, the sentencing guidelines and all the things we have just set out would be entirely relevant to that process and will factor in. I will go through a that in a bit more detail, so I hope the hon. Lady will bear with me. I will of course let her intervene—that would be really helpful. She clearly has a huge amount of experience in this area, and I want everyone to feed in. I am asking questions about how this will work in reality, so it would be really good to draw on everyone’s experience. The Crown court deals with sexual assault and other more complex cases and, as she knows, the sentencing has to take into account things such as victim impact, so it is lot more difficult to estimate the sentence. Let us continue the debate, because it is very helpful to have this discussion.
To suggest that a judge in the plea and trial preparation hearing can undertake that assessment accurately and quickly off the back of the information that they have at that point, potentially on a paper determination without a hearing, is unrealistic. That could be very difficult for them. I will give a few examples, and again I am very happy for people to intervene or give their views, because we need to work through the nitty-gritty of how the measure will work in reality.
For category 2 sexual assault, the achieving best evidence full transcripts of the complainants’ evidence are often not available. Instead, the court has to rely on a written summary, but my understanding is that that information is needed to provide an accurate and realistic estimate of the likely sentence. How is it proposed that that will be done in practice for allocation? Will the judge watch the videos of the complainants’ evidence for an hour or two before deciding? If the case hinges on CCTV footage, is it proposed that the judge watch that before making the allocation decision? Those practical points do not appear to have been considered in preparation for the Bill, although the Minister may have all the answers and I obviously look forward to hearing how she thinks the process will work in practice.
It is not sufficient just to say that the judge will decide the likely sentence length without ensuring that they have the information they need to do that properly, particularly given the magnitude of the impact of the allocation decision. I therefore ask the Minister whether anyone has calculated how long it might take for the judge to go through the various videos and footage before the PTPH to get the information they need to make an allocation decision.
It is important to remember that victim impact is often a significant factor in sentencing. Is it proposed that victim impact statements will be relied upon at the point of determining an allocation? What happens if, at that point, the impact is not yet known? For example, the complainant might still be in hospital, medical evidence might remain outstanding or the psychological impact might not be known for many weeks or months.
On the face of it, we probably all thought that a judge deciding whether the likely sentence will be more than three years sounded straightforward. We would think that they just look at the sentencing guidelines, but I am not sure it is that straightforward. Once we start thinking it through and listening to those working in the justice system—I have spoken to people about this—we soon realise that it is far from simple, especially for complex cases such as sexual assault. The judge does not magically know the likely sentence; they need to understand the facts, the detail of the alleged offence and the impact on the victim before they can even begin to do that accurately. If they get it wrong, which is increasingly likely if insufficient information is available to them, that could result in defendants being denied a jury trial when they should have had one.
That brings me on to my next concern. How long will it take on average for the judge to do all this? Has that been factored into the Crown court saving of 27,000 sitting days? Has the increased time that the magistrates will need to spend on this, due to the complexity of cases, been factored into the increased demand of 8,500 sitting days? We also need to bear in mind that the allocation process that the magistrates undertake under the current rules will also get more complex once the sentencing powers increase up to two years. There will have to be allocation decisions for more complex offences such as sexual assault and death by careless driving. Do magistrates have the expertise to accurately assess the likely sentence in those types of cases to adequately assess victim impact?
The Government’s approach sounds simpler on paper, but I hope I have demonstrated that in reality I am not sure it is once we delve into it. These proposals add a not insubstantial amount of work simply to decide where to allocate the trial, essentially undertaking almost a mini trial to review the evidence before the allocation can even be decided. That does not sound time saving to me. It is the wrong way round. We expect the judge to make a judgment on sentence before the trial has even happened, which could change the type of trial the defendant is entitled to. That is fundamentally wrong. It is a flawed approach that will lead to bad outcomes for defendants and complainants.
Linsey Farnsworth
The magistrates court goes through that process. The process of allocation to the Crown court bench division essentially mirrors what already happens in the magistrates court, and that is quite a straightforward procedure. It often takes less than five minutes—virtually always less than five minutes. Because the prosecution makes its representations on the Crown’s case, it sits highest. For the most serious version of the offence, what would the likely sentence be, based on the sentencing guidelines that I have already mentioned? That will be the case in the Crown court. There will be a prosecutor in the Crown court standing up and saying, “The Crown’s case at its most serious does not warrant a sentence above three years. We therefore think it can stay in the Crown court bench division.”
For it to be a big argument, the defence advocate would need to argue that their client deserves a much longer sentence than the CPS says they deserve, if all the most serious elements of the case are proven. That strikes me as a very unusual argument for a defence barrister to make—that they would suggest their client deserves a longer sentence. That is what we are talking about here. How often is a barrister going to argue that their client deserves a longer sentence?
If the defence barrister convinces the judge, the judge might think, “Actually, maybe it does deserve a longer sentence; we will have a jury trial”, and that person is convicted after trial. Then there is the plea and mitigation stage. At that point, the defence barrister will try to argue, “I know the case is now proven, and I know that I said it deserved longer than three years, but actually, even though the case is proven, they deserve less.” That would be a very strange position for a barrister to be in, and I think they would be at risk of misleading the court at some point along the way, which is something they very much would not like to do. I can reassure the hon. Member that in my experience these arguments just do not happen.
Rebecca Paul
It is really helpful to hear the hon. Member’s perspective from her in-depth knowledge and experience, but I would challenge one aspect of her point: I might argue for a longer sentence if it meant I was more likely to get a jury trial and be found not guilty. Allow me to give an example. If I had created an offensive social media post, I would know that, if I could make my case to a jury, they would be much more likely to use their discretion and compassion and accept the human foibles that we have. They might well say, “This person did not intend to cause any harm—not guilty”. I therefore disagree with the hon. Member; I think she will find herself in a situation where—it sounds bizarre—people will argue that they should get a longer sentence in order to go to jury, so that they have a chance of being found not guilty and clearing their name.
Linsey Farnsworth
Please allow me to finish.
It is because barristers have a duty not to mislead the court. If they are saying to the judge, “I know my client is not really going to get more than three years, but I am going to argue that they are because I want the jury trial,” then that would be very much against the requirements on barristers.
Rebecca Paul
That is not the case. The hon. Lady has just set out that it is about setting out the worst possible cases with respect to the sentence—so they absolutely could do that. It is exactly what will happen. They will always be looking to achieve the best for their client—particularly if their client is not guilty. Let us remember that we are talking about some people who will not be guilty.
Again, they know that if they have done a social media post—and we have seen that people have gone to prison for these things—they are much more likely to not go to prison if they end up in front of a jury. However, if they end up in front of a judge—my goodness me—there is a much higher chance that they will go to prison.
Dr Mullan
As I said at the outset, there is a fundamental safeguard of people being able to have a judicial review of the allocation decision. It is all well and good for the hon. Member for Amber Valley to talk about the scenarios where it sails plainly, everyone is in agreement and it is all good. However, if it did not, at the moment, a defendant has a right to a judicial review of the decision to allocate. If these proposals go through, they will lose that right and have no ability to question legally the decision to allocate—even if it was a factual error of the law. We are not even talking about a subjective element. Let us say that the judge just gets it completely wrong, misunderstands the facts presented to them and allocates incorrectly. At the moment with magistrates that person could go straight to judicial review and the case does not proceed as was intended. However, we would now lose that right.
Rebecca Paul
I thank my hon. Friend for making that important point. Returning to this debate, we are going to see real problems from this approach to allocation. I am glad that the hon. Member for Amber Valley thinks that it is not an issue—it sounds as if she thinks that all the issues I am raising are not issues. However, she will find that there are some KCs out there that will say that some of the things I have raised are actually very much going to be issues.
I ask the Minister in her summing up to go into some of the detail about how this would work in practice. As I said, it sounds really straightforward—“Oh, we just decide whether it is more or less than three years”. However, it is just not that straightforward.
We also have to bear in mind that sometimes, as a case develops, the prosecution might substitute a lesser charge for trial, as sometimes happens—for example, a section 20 grievous bodily harm instead of a section 18 GBH, an affray instead of a violent disorder, or handling instead of robbery—and that changes everything.
What happens when they do that? Will it go back through the reallocation procedure every time? If so, has that been factored into the estimates on sitting day savings? I am sure that the Minister is very much enjoying me constantly going back to the estimates and impact assessment, but it is really important that we are clear about what has been factored in and what has not.
In the light of the number of questions about how this will work in practice, it is surely plain to see why it is so important that the defendant has, as a bare minimum, a right to appeal any such allocation decision by a judge. There is so much scope for error in having a judge perform a sentence estimate at a point before all the facts and evidence are known, or without giving them sufficient time to digest the information, that it would be completely unfair to not include an appeal route. Even better still, I would urge the Government to rethink the whole Bill and not do away with the right to elect for a jury trial at all; then we would not really have to worry about any of what I have just raised.
Sarah Sackman
Once again, I thank the hon. Members for Bexhill and Battle and for Chichester and my hon. Friend the Member for Bolton South and Walkden for tabling the amendments. I will seek to address each of them in turn, as well as the other points raised, in particular by the hon. Member for Reigate.
On amendment 40, let me begin by emphasising that I do share the view of the hon. Member for Bexhill and Battle that we have to uphold the principles of natural justice in our system, which encompass the right to a fair hearing, rules against bias and the duty to act fairly. He well knows that I regard timeliness as an important aspect of fairness and the effective administration of justice. Unnecessary delay places strain on all court users, which is what the Bill—primarily in clauses 1 to 7—is designed to address.
Members will have also heard me say that the fairness of the trial—the fundamental elements of fairness and natural justice—does not depend on the mode of trial chosen. I reject the characterisation by the hon. Member for Chichester of a judge-only trial as rough justice. A trial conducted without a jury is no less fair by reason of that alone.
Jess Brown-Fuller
I accept that it might be a mischaracterisation to describe it as rough justice, but does the Minister agree that in this case it will be summary justice, which by its very definition is rougher around the edges, because it is summary?
Sarah Sackman
I am happy to sit down with the hon. Member again to clarify what she means by summary. There is no curtailment of the trial. All the elements of the trial happen in exactly the same way: the prosecution presents its evidence; the defence presents its evidence; witnesses are cross-examined; the evidence is tested. It is not summary in that sense—but if she wants to come back on that, I am happy to give way.
Jess Brown-Fuller
I appreciate the opportunity to come back on that. That poses another question: if judge-only trials are going to take the exact same amount of time, how will this speed up the court backlog?
Sarah Sackman
As we have heard extensively in evidence, whether from Sir Brian Leveson, the three experienced judges or our international comparators, including the Attorney General for Ontario, it does save time in a number of ways. The most compelling characterisation I heard was from Clement Goldstone, the recorder of many years’ experience from Liverpool. He said:
“in my experience it is wrong to confine the savings, or the assessment of the savings, to empanelling and swearing in a jury. That is where it begins.
Every sex case, I suspect probably nationally, now comes before the court with a direction that there will be no witnesses before 2.15 pm on the first day or, if the case is starting at 2.15 pm, until 10.30 the following morning. If there is no jury, there is no bar to the evidence starting within 10 or 15 minutes... Half a day, at least, will be saved on every sex case that is heard in the Crown court. That is before you start with time lost as a result of jury sickness, or a juror being delayed”.
He went on to say—and we heard this from the Canadian witness as well—that
“It is also easier to call a witness out of order if you are not trying to take a jury through in the order in which the evidence would otherwise be called.”––[Official Report, Courts and Tribunals Bill Public Bill Committee, 25 March 2026; c. 76, Q161.]
He said, in terms, “I do not accept that there will not be a significant amount of time saved.”
It is not right to call a judge-only trial summary. It is not right to call it rough justice, and it is also not right to say that time will not be saved. Substantial time will be saved.
Several hon. Members rose—
Sarah Sackman
I am going to make some progress.
Amendment 40 seeks to introduce an appeal route. The practical effect would be adding an additional interlocutory stage to proceedings, increasing the risk of delay. That risks undermining the efficient progression of cases without providing any corresponding benefit in terms of fairness. As I have stated when discussing similar amendments tabled by the hon. Member for Bexhill and Battle, decisions about mode of trial are procedural case management decisions rather than determinations of guilt. As a general rule, such decisions are not subject to a specific route of appeal, in order to promote procedural finality and to avoid delay.
Sarah Sackman
There is no specific ability to appeal, but of course, a decision in relation to mode of trial could be subject to judicial review. Those familiar with the judicial review process know that that is a high bar. We are talking about public law grounds of vires—whether it is within the scope of the statute—and rationality. It is a high bar, but there is no unique route of appeal. That is in order to promote procedural finality and to avoid delay when we are talking about the allocation decision itself.
I reiterate that several important safeguards are in place to ensure fairness and transparency. Both parties will be able to make representations on mode of trial decisions, and judges will give reasons for their decisions. Of course, the wider system of appeal—that is, to the substantive determination on a verdict and, indeed, on sentencing—remains in place.
Dr Mullan
I think the Minister would accept that it is a high bar, but also that it is sometimes successfully crossed. Allocations are sometimes successfully challenged, which demonstrates just how important this provision is. If it is there and is used when things have gone so significantly wrong as to meet that high bar, it is vital that the same test is available in extreme scenarios, but it will not be available in relation to allocation by the Crown court.
Sarah Sackman
I think I have been as clear as I can be. If a mode-of-trial decision is so out of order or unlawful that it is challengeable by way of judicial review, it can be challenged in that way.
Dr Mullan
This is very important. I have read the legislation to the Minister, and highlighted the point that a non-conviction element of the Crown court proceedings cannot be taken to judicial review. The Minister should either say that I am wrong about that and that something like an allocation decision in the Crown court can be judicially reviewed, or that I am right and that what she has just said means there should be something that is not there. The whole Committee needs to know whether I am correct in saying—I believe I am—that that sort of hearing from a Crown court cannot be judicially reviewed.
Sarah Sackman
My understanding, and I will happily correct the record if I am wrong, is that there is no bar to judicial review in that context. However, there is not a specific route of appeal, which is what amendment 40 seeks to allow. To reiterate, several important safeguards are in place to ensure fairness and transparency.
Sarah Sackman
I am going to make some progress.
Both parties will be able to make representations as I have said. We also recognise that cases can and do evolve as they progress through the courts and a number of examples were raised. Clause 3 makes clear provision for cases to be reallocated between the bench division and jury trial where the seriousness changes. That process is set out specifically in the legislation, and for that reason I urge the hon. Member for Bexhill and Battle to withdraw the amendment.
Mr Paul Kohler (Wimbledon) (LD)
The point is that judges can make mistakes. That is why the Attorney General can appeal unduly lenient sentences. Why are the Government saying there cannot be a challenge in this case when a mistake has been made? Why are they not allowing an appeal when a mistake has been made as to how long the maximum sentence might be?
Sarah Sackman
As I am about to come on to, not least to address the very fair questions raised by the hon. Member for Reigate—she knows that I do not mind answering questions, because we have a constructive approach—the assessment designed to take place at the PTPH is to give an indicative assessment of sentence; it is not a final determination of sentence. That final sentence may exceed the estimate that is reached, or it may be lower. This is not intended to be a mini-trial, and that is consistent, as we heard from my hon. Friend the Member for Amber Valley, with what happens in the magistrates court every day.
Sarah Sackman
Of course nobody is infallible in this process, and mistakes are made. But I caution that there is a distinction between taking a decision that is totally outwith the legal authority the statute provides the decision maker with and an indicative assessment of likely sentence, which turns out not to be the precise result that we end up with. That does not invalidate the initial assessment or necessarily mean it is mistaken based on the representations that were before the judge at that time. We therefore think that introducing a specific route of appeal to the allocation decision—I am not talking about appeals to the ultimate verdict —introduces a needless interlocutory stage that will only add to delay, in a system where we are trying to bring them down.
Sarah Sackman
I am going to make some progress.
Amendment 18 would introduce a new right to appeal allocation or reallocation determinations made under proposed new sections 74A and 74B. The Government do not consider that necessary or appropriate. As I said, mode-of-trial decisions of this kind are procedural case management decisions. They are intended to ensure that cases are tried efficiently and fairly and managed proportionately. As a general rule, such decisions are not subject to a unique route of appeal.
Dr Mullan
Just so we are really clear, I have met Supreme Court judges and they tell me that they go back through discussions and debates about legislation to understand the intent or will of Parliament. The Minister said there will not be a separate route of appeal and referred to existing and ordinary rights to appeal. Does she therefore think that it is the will of Parliament that people at the point of conviction should be able to raise questions of allocation, or that judges at the point of conviction should not consider questions of incorrect allocation?
Sarah Sackman
I am not quite sure, in that hypothetical, where those arguments would take us. As I said, the allocation—whatever the constitution of the Crown court, it is still the Crown court—guarantees a fair trial. So I am not sure what this proposal does in that context to underline the fairness of what has been determined.
What I would say to the hon. Member for Reigate is that the intention here is that this process is neither new nor complex. As others have said, it broadly mirrors the allocation exercise in the magistrates court, which already requires a balanced assessment of the case, including matters properly advanced by the defence. The hon. Lady is absolutely right that the judge at the PTPH stage in the Crown court will hear the prosecution’s summary of the alleged facts and apply the relevant defence-specific sentencing guidelines to assess harm and culpability to determine in what category that places the case. When one examines the sentencing guidelines, although they are rich in detail, it is often pretty black and white as to whether someone is within the three-year territory or quite obviously above it in cases that are not themselves indictable-only. The judge will then consider any clear aggravating or mitigating features, which will allow the judge to determine where the case will likely fall within the sentencing category range. Inviting representations from the parties at PTPH is not an open-ended process, a mini-trial or a sentencing hearing. As I said, we are trying to give an indicative assessment of likely sentencing length, not what the actual sentencing length will be.
Rebecca Paul
I apologise if the Minister is about to come to this, but is she saying that she does not expect this process to take very long?
Sarah Sackman
It is not just me saying that; Sir Brian Leveson and the independent review of the criminal courts take that view, as did the three senior judges we heard from in Committee, who thought that allocation and reallocation decisions—this is in relation to reallocation decisions, but in some ways there are parallels—could often be appropriately made on the papers, as the judge would have sufficient information in front of them, including written representations from the parties.
The hon. Lady asked how we factor in assessments of the time savings. That is predicated on the idea that this is not a mini-trial and is not intended to be a mini-hearing in any sense. In the magistrates court, there is an indicative assessment that informs the applications of the sentencing guidelines to an allocation decision, and the same thing will happen in much the same way here, with highly experienced judges. That will happen as part of the PTPH, so this is part of a hearing that already happens. The hon. Lady was right to ask me about that, because there was some confusion or challenge over the idea that we are introducing a new hearing or a new stage. We are trying to make this efficient, so that is not the intention at all.
Rebecca Paul
Is the Minister saying that judges will not be required to review CCTV footage or understand the impact on the victim? Is she saying that that is not required in this process?
Sarah Sackman
I will not stray into judicial discretion about how they would do this, but I think that that is highly unlikely. One is assuming that the prosecution’s facts in their case summary are in their favour. That does not require looking behind every element of the evidence to substantiate whether the facts are proven or not; that is for the trial. However, the judge may want to look at something when the parties present their case on allocation, and I am not going to gainsay that. But I think that what the hon. Lady describes is highly unlikely.
As I said, appeals in the Crown court will otherwise remain unchanged. I have dealt with that, and I ask the hon. Member for Chichester not to press her amendment.
Amendment 28, tabled by my hon. Friend the Member for Bolton South and Walkden, would add into the reallocation test in clause 3 the ability for parties to require the court to hold a hearing. That would be inefficient. I refer again to the three senior judges who told this Committee that reallocation decisions can often be made appropriately on the papers. Why should judges be required to use up court time where that may not be necessary? This is simply not going to be the laborious process that has been suggested.
Forcing judges to hold hearings if they are considering reallocation runs counter to the intent of the clause. Delays to proceedings can and should influence a judge’s decisions over whether to reallocate a case, and by forcing hearings and delays, parties would effectively be tying a judge’s hands. There is also nothing to stop a party requesting a hearing in that context.
It is fundamental to the proper functioning of the courts that judges can make decisions impartially and independently. Like others across the House, I have full faith in our judiciary to make those informed and robust decisions. I therefore urge my hon. Friend not to press her amendment.
Dr Mullan
We are now being asked to vote in a totally unsatisfactory situation when it comes to the facts of how this legislation will operate in two very important regards. I put it to the Committee that there will be an erosion of the right to judicially appeal an allocation decision that currently exists in respect of magistrates. The Minister said she thinks that that is wrong, but we will have to vote one way or the other on the basis that either the Minister is correct or I am correct. A Member said from a sedentary position—this is not a criticism of him—that the Minister will come and correct the record, but we will have already voted when the record is corrected. The Minister has given a view that there will be a right of appeal through judicial review to an allocation decision in the Crown court, and that is a fundamentally different scenario to one where someone does not have that right. However, we will be asked to vote on that today, without having absolute certainty, and we will perhaps be told afterwards, “Oh no, you don’t actually have that right.” I am not sure how Labour Members are comfortable or confident voting against a right that we are seeking to give people, without having absolute clarity about what the Minister has said and whether she is correct. It is extremely unsatisfactory for this Committee to be asked to vote on that matter without absolute clarity.
Secondly, similarly, the Minister did not clearly answer whether, as a consequence of that, people would be able to pick the issue up in an ordinary court of appeal. To another point raised by Opposition Members, the Minister said that we are not talking about errors in the law or where judges have clearly strayed outside of legislation. How does she know that? How does she know what future mistakes a judge might make? A judge may do exactly that, and allocate a decision completely and utterly incorrectly, outside of the law and what Parliament intended, and the Minister will not tell us whether that could be picked up in a court of appeal.
That, again, has important consequences, not just for the rights of the person who may be subject to that kind of egregious mistake in a legal proceeding without any route of recourse; it will also undermine the whole system if people are appealing and challenging these decisions and there is all this uncertainty.
Mr Kohler
I hate to break the consensus on the Opposition side, but I really do not see how we can say that judicial review is an appeal, and therefore why it is caught by this legislation at all. Judicial review is not an appeal of a decision; it is a review of a process. I do not think it is a concern.
Dr Mullan
As I said, our preference is for an appeal. The Government could say, “We are not going to add additional rights that do not exist; you do not get a right of appeal on allocation by a magistrate, but you do have a right to judicial review.” But the Minister cannot say with confidence that we do or do not have that. That is extraordinary.
Dr Mullan
Sorry—with confidence. The Minister says she is happy to go away and double-check. She should know for certain whether people have a right to a judicial review of an allocation decision in the Crown court, as in the magistrates court. She should be able to tell us that with absolute certainty.
I have been the Parliamentary Private Secretary for a Minister, passing notes between officials and the Minister. That is why debates are structured in the way they are: earlier in the debate, someone raises a point of importance in their opening remarks, and that gives time to the Minister, working with their officials. I absolutely accept that the Minister will not always have things at the tips of their fingers, but that is why the officials are there, to liaise with the Department. I am not criticising the officials, but why have we not had a direct note so that the Minister can get up and say, clearly and confidently, with absolute certainty, that there is a right of appeal to a Crown court allocation decision?
Siân Berry (Brighton Pavilion) (Green)
I have to add my voice to the point that this is an unsatisfactory situation. We have heard time and again from the Minister that the decision about allocation will be made based only on the length of sentence, but in proposed new section 74C(7)(a) to (g) on reallocation—(g) allows for any other matters—there are many points that are quite subjective where decisions could be made on reallocation, and that could have a similar impact on someone’s life. I do not think we have all the answers we need about how this will work.
Dr Mullan
I absolutely agree. We will go on to discuss reallocation, and the hon. Member anticipates the points I was going to make. The reallocation decision is even more of a minefield, with all sorts of subjectivity and challengeable elements. I look forward to discussing that.
The PPS muttered earlier that I am patronising the Minister, but I think the Opposition are being patronised. We are being asked to vote on something where we have not had absolute clarity.
Sarah Sackman
I appreciate that the Opposition disagree with what we have decided to do in this legislation. There is no specific route of appeal to challenge the mode-of-trial allocation decision. If a defendant and their representatives consider it to be so egregious as to be unlawful, they can challenge that by way of JR, but I would suggest that that will be a very difficult threshold to reach and unlikely to get permission in the administrative court. The mode-of-trial allocation exercise involves an indicative assessment of likely sentence—a judgment on the basis of indicative factors—so establishing that the conclusion that has been reached is so irrational is unlikely.
I do not think I am being unclear. The hon. Member for Bexhill and Battle has heard it three times; he does not like it. I am doing my best.
Dr Mullan
Does the PPS want to intervene? No, I did not think so.
As we have agreed, judicial review exists for an allocation decision by the magistrates. The Minister has quite rightly set out that that is a very high bar and is not a right of appeal. In that regard, the Minister is fair to say that our amendment is not directly comparable. I put it to the Minister, and I made this point earlier, that it would be the Crown court making an allocation decision. It is not allowed, as it is in a magistrates court, to use judicial review to challenge a decision made, like at the PTPH, on allocation. That is an incredibly important point that all Members must understand. If the Minister is going to say that people are not allowed a general right of appeal—we do not agree with that, but it is a legitimate argument—that is one thing. But if the Minister is saying that people are going to lose the high bar of challenge that exists at the magistrates court, that is incredibly important. We need to understand that because, as I have said, it is a high bar, but it exists for a reason.
Dr Mullan
Again, this is why the Minister needs to clearly articulate whether or not we can—[Interruption.] The hon. Member for Amber Valley is saying that the Minister said that we can. But what will the Minister do if we all vote tonight on the basis that the allocation decision can be judicially reviewed? The Minister is asking us not to have a view on it, not to consider it, but to vote on the question of appeal in relation to allocation decisions on the basis that she has told us that they can be judicially reviewed. Will the Minister think that that is in any way satisfactory if what she has told us proves wrong? I do not see how she could possibly think that that would be satisfactory.
Alex McIntyre
The Minister has been really clear in her response. This morning, the shadow Minister was extolling some intellectually coherent arguments that the Conservative party has now discovered. I wonder whether he might return to them for this afternoon’s session.
Dr Mullan
I think that wanting defendants to have the ability to challenge allocation decisions as they stand under a new court is pretty intellectually coherent. I am arguing that these are potentially significant, consequential decisions for defendants, and at the moment, as the Minister has explained, we all agree that there is a high bar for judicial review. I am not confident, and the Minister has not given me confidence, that the judicial review element absolutely exists.
The Minister has talked about appeal; she is right that there is no right of appeal for the allocation decision at the magistrates court, but there is a right to judicial review and I am not sure that there is in this clause. It is unsatisfactory that we may have to vote on it.
Paulette Hamilton (Birmingham Erdington) (Lab)
I am no expert, but I find this argument fascinating. What would it take to make the shadow Minister believe what the Minister is saying? I do not understand this subject, except for everything that I have read, but the Minister has been absolutely clear. What does the shadow Minister need to make it clear so that we can move on to another point?
Dr Mullan
If the Minister wants to intervene on me and say, “I am absolutely certain that there would be a right to judicially review the allocation decision by a Crown court,” I will be satisfied. I am asking for the Minister to stand up and say that she is absolutely certain.
Sarah Sackman
If, at a PTPH, a judge makes an error of law, that is amenable to judicial review. Full stop.
Dr Mullan
I welcome that clarity; it will be interesting to see what happens as a result of that. I take what the Minister has said in good faith, and assume that she would not say that unless she was certain.
That point is about the question of judicial review. The Opposition believe that there should be a right of appeal separate to that, for two reasons. First, it is fair to the individual, and, secondly, if we do not have an initial right to appeal, and these matters are then considered in appeal at point of conviction, we will create more issues, backlogs and legal uncertainty and defeat the point. Our amendment would make the system more, not less, streamlined. It would help the Government meet their objective, not hamper them. On that basis, I will push it to a vote.
Question put, That the amendment be made.
Dr Mullan
I beg to move amendment 41, in clause 3, page 5, line 38, at end insert—
“(7) Where a court has determined in accordance with this section that a trial is to be conducted without a jury, the defendant may request a different judge to preside over the trial than the judge who made the determination that the case was suitable to be tried without a jury.”
This amendment enables the defendant to request a different judge to try the case than the judge who determined that the case was eligible for trial without a jury.
The amendment draws into acute focus the challenges with public confidence and the risk of clouding judicial decision making that the proposals of a new judge-only court bench division will create.
It is important to set out the distinctions between different types of allocation decisions both now and in the future, if the proposals are passed. It is important to restate that we have summary-only cases based on the offence type rather than anything subjective, and then we have the indictable-only offences, again based on the offence type. In our previous debate on allocation, I pointed the Minister to grey cases, such as drug dealing and burglary offences, that are triable either way. At the moment, if it is about three of those offences, they have to go to the Crown court. I ask the Minister for clarity at some point about how they will operate.
Presently, we have what I sometimes call a clear and distinct separation of powers—a separation between those anticipating sentencing outcomes and those deciding sentencing outcomes, and a powerful safeguard for where that is not the case. Under the Bill, those lines will be blurred in a new and novel way, because the judge anticipating sentence length in the Crown court can then determine guilt and sentence length, and potentially issue a longer sentence of more than three years. That is important for the defendant and, in certain scenarios, for the victims and bereaved.
The hon. Member for Amber Valley, with her expertise, earlier described the fact that allocation and sentencing take place in the magistrates court, but importantly, the defendant can elect, and say no to their being involved in that process. They can say, “I want a jury trial; I want the judge who passes the sentence to be separate from the people involved in allocation.” Of course, the scenario is one in which a defendant is unlikely to have a reasonable claim of bias against their interests in relation to the sentence.
We discussed why someone may prefer a jury trial, even if the sentence might be higher. However, if we are talking about the defendant’s ultimate view about the judge, it is unlikely that someone in the magistrates court—if the case stays in the magistrates court—will say, “You chose to keep me here because of a shorter sentence, so I think you are biased in giving me a longer sentence.” They already have a positive disposition about the view of the sentencing.
More importantly, there are strict limits on the sentence length if a case stays in the magistrates court. It cannot go beyond what the initial judgment was. If the court decides, during or at the conclusion of the trial, that the sentence should be higher, it is up to someone else to pass that sentence. It goes to the Crown court for sentencing.
Linsey Farnsworth
It is true that the case has to go up to the Crown court, but it is not for the purposes that the hon. Member would like, as it were. It is because the magistrates’ maximum sentencing powers have been reached, and therefore they do not have the power, as opposed to it being preferable that the case go to somebody else.
Dr Mullan
That was not the point I was seeking to make, so I thank the hon. Lady for clarifying.
I sometimes wonder what victims think. Do they sometimes follow a case, hear the evidence and then think it should be getting more than the magistrates’ limits? Do they question whether the magistrates, who have a preliminary view about whether the case will hit a certain maximum at the outset, have come to the trial with some degree of bias about what outcome might be? Do they think the magistrates would therefore have some reluctance, even having heard the evidence in full, to pass a sentence that is beyond their powers and send the case up? Of course, magistrates do reallocate sentencing. As we have said, just because I feel there is a risk of a perception of bias does not mean I think we should scrap the whole lot and never let magistrates pass a sentence, but seeing that things are not perfect on balance does not mean that we accept them.
These proposals will add a degree of seriousness because of the potentially significant differences between possible sentence lengths. The sentencing guidelines for the offences are narrower than we will perhaps see with triable either-way cases, which have already been curtailed at a certain level of seriousness and might go up to an even greater level of seriousness.
If the clause passes unamended, the scenario could be as follows. A Crown court judge will receive an outline of the case, and make an initial judgment on the likely sentence outcome. They will decide, for a triable either-way offence, whether a sentence is likely to be more than three years. That same judge could then hear that case. That is the same judge whom a victim or bereaved family member could reasonably—perhaps not correctly, but reasonably—perceive on some level had already made a decision about the case, because of course they have: they have taken an initial view of the case and on what the outcome was likely to be. Importantly, that is not something that happens in any way shape or form with the jury trial system, where the two things are separate.
We all agree that perception as well as reality is important in our justice system. It is possible that some victims or bereaved family members might question whether the judge, who formed a view, is not best placed to then objectively and fairly decide what the actual sentence should be, if it should be longer than three years. They might even be concerned that passing a sentence of more than three years would suggest that they had got it wrong in their initial view. Again, we do not have to form a view about how likely or unlikely that is; we should form a view on what the perception of that will be. As politicians, we are very used to the concept that perception is important. Even if someone has not necessarily done something wrong, whether the public perceive that they might have done something wrong is important.
All that can be readily and simply avoided through our amendment, which would introduce a separation of powers, as I have described it. This is a modest and narrow amendment. It will provide a greater degree of confidence in the new system; even if the Minister is happy to proceed with the system, I am sure she would accept that it has generated questions and debates about rights and impartiality. This amendment is a very simple and modest way in which the Minister can minimise that. I know she wants maximum possible confidence in the new system, so I hope our amendment achieves that and that she can support it.
As we are still discussing allocations and who will or will not be allocated to different parts of the court, I would also be grateful if the Minister could provide clarity on triable either-way offences, such as drug dealing and burglary offences, where multiple versions go into the Crown court at the moment. What will happen to those cases in relation to allocation as part of the new division?
Joe Robertson
Evidently, I support the amendment in the name of the shadow Minister. As he set out, this is about confidence in the trial when it gets under way. It is about understanding what a judge, in exercising their procedural decision making, may have seen prior to the trial getting under way and the evidence being heard. As I see it, the amendment would go some way to at least mitigating what is lost in the Government’s abolition of jury trials for certain offences: that is, the objectivity of jury trials, where a jury decide on the conviction—guilt or innocence, effectively—and the judge decides on the sentencing.
In jury trials, there is separation between a judge’s procedural decision making about how the trial runs, including throughout the trial, and the facts of the case—whether someone is guilty or not—being decided on by the jury. When a trial is heard by a judge, the judge makes both those decisions. The disadvantage there, of course, is that when either party to proceedings—the defence or the prosecution—wishes to make representations about the way a trial is being conducted or about the evidence in a jury trial, the jury get sent out of the room. They do not see that argument, and their minds are not clouded by what is discussed in the courtroom on a procedural matter that a judge may rule is inadmissible in the hearing. Frequently in trials, that would be a dispute over evidence, such as whether a certain bit of evidence should be brought before a jury. The jury will not hear that discussion; if a judge says no, the jury come back in and they never see it. In a judge-only trial, where the judge is also deciding innocence or guilt, they have to decide whether a piece of evidence is relevant and, if they decide it is not, they have to effectively pretend that they never saw it and to disregard it.
Our judges are capable of doing that because of their training, career, expertise and experience. I would suggest that judges in this country are among the best in the world; as I have said before, I believe our common law English legal system is the best, and I believe our judiciary is the best. But it is simply the case—it is human nature—that when someone has seen something they cannot unsee it. That is precisely one of the arguments for why we have jury trials in this country.
This is about the arguments a judge hears and assesses when it comes to allocation. They could be fairly contested and, of course, the decision made by a judge could be controversial—not necessarily wrong, but controversial—and against what the defendant is seeking. When a judge chooses a judge-only trial, the defendant’s wishes are not disregarded but considered and set to one side, and the judge then hears the facts of the case. The argument is that the judge may be clouded in their view of a defendant, given the robust, perhaps sometimes controversial, arguments the defendant is making about where they want the trial to be heard. That may then unfairly cloud the judge’s view of the defendant when hearing the case itself. In the vast majority of cases, judges have a professional separation as they move on from an important single decision about where to hear the case to hearing the case itself.
It is not just about whether a judge was clouded by the earlier decision-making process. In truth, in the vast majority of cases we can never know. We do not want to get into philosophy here, but some philosophers may argue that judges themselves do not realise when they are clouded. Probably more relevant in practice, though, is the confidence that the defendant has in the judge’s decision.
If there has been a highly contentious, contested argument about where the trial should be held, if the defendant did not get their way, which in my view they should have, because I do not agree with this legislation, and if the defendant does not believe that their case is being tried properly and sees bias in the judge, that will make the trial harder to run even if it is not a reasonable view to hold. It could lead to defendants, some of whom may be representing themselves and giving evidence, not being able to set aside their disagreement with the judge. There will therefore not be a fair, objective process with a judge and a fair-minded defendant who at least has confidence in the system.
Of course, not every defendant will have objective confidence in the system, but at least we can assist the process by not creating an opportunity for the defendant to disagree with a judge’s allocation decision and then have to face the same judge making a decision on their innocence or guilt in the trial itself. I use the analogy of juries, because that is what we are discussing, albeit not under this amendment.
An important example arises in the family courts, when two people are contesting finances during a divorce. That is an area I am more familiar with, as a former family practitioner, and the principle is similar. I apologise if the language I use to describe the proceedings is slightly out of date; it has been a few years since I practised. A financial dispute resolution hearing is effectively an interim hearing before people get to a final hearing; they are seeking to avoid the final hearing by having a financial dispute resolution hearing. A judge hears the arguments made at that hearing and tries to assist the parties to at least narrow the areas of dispute, or indeed resolve their dispute and come up with an agreement by consent. If consent is not reached at that hearing, the FDR judge will not hear the final hearing, because they have seen things that they cannot unsee and heard things that they cannot unhear. The perception is that the judge has been unable to assist in the settlement, they will be unable to hear an objective final hearing and make a decision.
The principle runs through not just criminal courts and jury trials, but family courts and the civil courts. It is a fundamental principle, in this country, that judge who makes a final decision should be as unclouded as possible by earlier arguments or decisions of a more procedural nature. For those reasons, I support the shadow Minister’s amendment. It would not drive a coach and horses through what the Government want to achieve in the Bill. I have already said that I disagree with a lot of the Government’s intentions, but the Government can still do what they want to do while taking the amendment on board. I hope that they will at least consider accepting some amendments. If not, what is the point of scrutiny of a Bill? What is the point of the process?
Sarah Sackman
Let me begin by making it absolutely clear that the deployment of judicial resource is properly a matter for the independent judiciary. Under proposed new sections 74A to 74D of the Senior Courts Act 1981, judge-alone trials will operate in the existing Crown courts and any judge of the Crown courts will be eligible to sit in the new division. Creating a statutory entitlement to require reassignment following a request of the kind outlined in the amendment would, in the Government’s view, encroach on that judicial responsibility.
Let me be clear that, like the hon. Member for Isle of Wight East, I am firmly of the view that our judiciary are among the best in the world. That is why the Government are prepared to put our faith in them to deliver this reform. They are best placed to determine how and where to deploy their resources.
The amendment implies that, to safeguard fairness and impartiality in our courts, different judges must preside over the allocation decision and the trial. Let me address that concern directly. There is no basis for suggesting that a judge who has made an allocation decision would be unable to approach a trial with full independence and objectivity. We have confidence in our judiciary, who are independent and highly trained, to do so. Judges receive training throughout their careers, including on structured decision making and the fair treatment of court users. They are accustomed to managing complex cases and to ensuring that trials are conducted fairly. That is their job.
What the Bill proposes is consistent with well-established practice. Across our systems in the civil courts, judges routinely make a range of procedural and case management decisions before trial without that depriving them of their impartiality at trial. The Government are committed to upholding the highest standards of justice, which is why we have ensured that the judiciary have the funding that they need to deliver the training and guidance required to support these reforms.
I reassure the Committee, the House at large and the public watching at home that every defendant in the Crown court will receive a fair trial, and that that is not affected by the mode of trial or by the particular judge presiding over the case. In the magistrates court, justices and district judges routinely make decisions about the admissibility of evidence, including bad character evidence, and other preliminary points of law and then go on to determine guilt without any loss of impartiality. In the Crown court, judges already deal with instances of contempt of court that they witness themselves, sometimes those directed at them personally, without being disqualified from continuing to try the case. That position was affirmed by the Court of Appeal only last year.
Requiring a different judge to preside over the trial would encroach on judicial independence and introduce unnecessary complexity and inefficiency to the system without any evidence that such a safeguard is needed. I urge the hon. Member to withdraw the amendment.
Sarah Sackman
I am sorry: I did have that question noted down. The hon. Member will get an answer.
Sarah Sackman
Let me intervene, because the omission was certainly not deliberate. I am trying to make progress, for the sake of the Committee, but the hon. Member has fairly put the question. To be as clear as I can, the court considers the mode of trial by reference to the sentencing guidelines. According to the sentencing guidelines, a third domestic burglary offence is triable only on indictment.
Sarah Sackman
In fairness to the hon. Gentleman, and so that we can make progress, if he gives me a list of those cases at the end of the day, I will come back and give him chapter and verse on each of them at our next sitting.
Dr Mullan
To return to the heart of the matter, I will pick up on the comments made by my hon. Friend the Member for Isle of Wight East on an issue that I had not talked about. I talked about how one forms a view of the sentence and how one gives a sentence, and about the ways in which the interaction is unhelpful, but my hon. Friend helpfully points out that other things will happen at the pre-sentence hearing, including the submission of evidence that is then ruled out of order, that might lead to a certain perception.
The Minister rightly referred to precedents relating to judges’ capability, but I do not think that she really engaged with the Opposition’s concern about perceptions that the system is unfair. The Minister highlighted examples in which that might be a risk already. There might already be times when people argue that the perception is wrong. We accept that. I had anticipated that point, which is why I made it clear that the fact that the existing system is not ideal or has undesirable features does not mean that when we get to design a new system from scratch and from the ground up, we should say, “Yes, this is undesirable in these areas, but it exists and we are not going to get rid of it.” When we are designing a new system, we should design out the less desirable elements. Our amendment puts forward the best possible approach. I suspect that it would make it less likely that either defendants who have been convicted and sentenced or victims will be concerned.
Jess Brown-Fuller
I beg to move amendment 19, in clause 3, page 6, line 25, at end insert—
“(4A) A trial conducted without a jury will be heard by one judge and two magistrates.”
This amendment implements the recommendation of the Independent Review of the Criminal Courts to have cases heard in the Crown Court Bench Division by a judge and two magistrates.
Sir Brian Leveson and the Minister, on the many occasions on which we have discussed this issue, have been very clear that the proposals set out in the independent review of the criminal courts were not to be treated as a pick and mix. Sir Brian was clear that it was meant to be a package of reforms, alongside stating that juries are not the cause of the backlog; I want to make sure that that is on the record.
But the Government have indeed chosen to pick and mix from Sir Brian’s recommendations, because he never proposed a judge sitting alone in the Crown court bench division. He proposed including a lay element, with two magistrates sitting with the judge; the magistrates would have equal decision-making authority on matters of fact, evidence and sentencing, while the judge would retain responsibility on rulings of law. The purpose of having two was to enable them to outvote the judge on matters of fact and, importantly, to maintain public participation and legitimacy in the absence of a jury.
Sir Brian referred to that in part 1 of his review. He said:
“In a similar vein, the inclusion of two magistrates in the composition of the bench would also ensure that the CCBD would satisfy the expectation of”
being judged by “one’s peers.” He continued:
“I...will not revisit those arguments here. I do, however want to acknowledge the diversity of the current magistracy, which I believe goes some way to satisfying this expectation and would help ensure a fair and balanced representation in the CCBD.”
The magistracy has done an excellent job of improving its diversity, although one could argue that there is still more work to do. A former Lord Chief Justice, Lord Burnett of Maldon, has said:
“It seems to me that if one is going to reduce the involvement of the general public, as members of a jury, in the relatively low-level cases that go to the Crown court, maintaining public involvement through the magistracy is a good course to follow. It also has the great advantage of simply replicating a constitution and jurisdiction that exists in the Crown court at the moment. When there is an appeal from the magistrates court against conviction or sentence, including an appeal against conviction in an either-way case, it is heard in the Crown court by a judge and two magistrates.”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 75, Q159.]
The Government cannot shirk their commitment to fair justice free from bias. If these changes are to be implemented, they should include the safeguard of two magistrates in the Crown court bench division. I would appreciate the Minister’s outlining why the Government have departed from Leveson on the point. Is it because there is a concern about finding enough magistrates to fill the roles? Is it because the magistracy will already be overwhelmed by the additional cases given to it as a result of the new sentencing powers outlined in this Bill? Or is it because the Government believe that having the lay element provides no additional safeguard in the interests of fair justice? Through the amendment, we seek to implement the recommendation of Brian Leveson’s review of the criminal courts.
Joe Robertson
The hon. Member for Chichester has set out the reasoning behind her amendment very well. If the amendment were agreed to, it would not go anywhere near restoring jury trials, but it would plainly be an improvement. The leading argument in its favour is that it is what Sir Brian Leveson recommended. The Government have repeatedly cited Brian Leveson’s review, and rightly so—that is what the Bill flows out of—but as the hon. Member for Chichester says, it cannot be a pick and mix. The Government cannot cite Leveson on the one hand and ignore him on the other.
Quite aside from the fact that the opinion expressed in the independent review has been ignored here, there are objectively good reasons why a trial heard by a judge and two magistrates is preferable to a trial heard by a judge alone. For a start, there would be three decision makers rather than one; with a jury there are 12, but clearly three is better than one. But it is not just a matter of numbers. Magistrates could be viewed, and certainly have been viewed, as a hybrid of jurors and judges. They are not judges, and they are not legally qualified people. They bring the quality that jurors bring—varied life experience—to the decision-making process. Of course, in a magistrates court, they are guided in the law by a legally qualified clerk.
It is fairly obvious that magistrates as a group are less diverse than the population of the United Kingdom, from which jurors are drawn, but at least they represent a greater diversity and variety of experience than judges. Judges all share one thing: they went to law school, they are legally qualified and they have had a career that is privileged—that is not a criticism, but I do not think it is an unfair word to describe a judge’s career. Magistrates have a greater variety of life experience. To bring magistrates into the decision making alongside a judge, as Sir Brian Leveson envisaged, would be to bring at least some element of a jury trial: the quality of being unjaded by a career in law and being unencumbered by the experience of being a well-paid legal professional.
I struggle to support the amendment, because it does not go anywhere near maintaining the system that we have today, but it would at least be a small improvement. It is an obvious point, but judges sit alongside magistrates today; it is a tried, tested and understood approach, not an obscure or novel one. Indeed, appeals are often heard in that way, as I understand it, because there is added rigour in having a magistrate sitting alongside a judge.
Of course, having a judge sitting alongside magistrates is an improvement on having magistrates alone, because judges bring professionalism from their legal training and experience of the law as part of the judiciary. There is a benefit there, although of course the benefit is already delivered by the Government’s own amendment, notwithstanding that it is worse than what we have today.
I commend, or at least understand, what the hon. Member for Chichester is trying to achieve. It comes from a good place, but unfortunately—this is not her fault, but the Government’s—it does not go anywhere near maintaining the status quo, which in my view is plainly greatly preferable both to her amendment and to the Government’s approach.
Dr Mullan
I welcome the opportunity to speak to amendment 19, tabled in the name of the hon. Member for Chichester. As my hon. Friend the Member for Isle of Wight East pointed out, this one of those challenging situations; we will not vote for the amendment, because it would indicate that we support or endorse a judge trial with two magistrates as opposed to a jury trial, which is not the case. But it is an extremely helpful probing amendment to point out the broader challenges and weaknesses with the Government’s proposal and the differences we would have seen had they followed the proposal by Sir Brian Leveson.
The amendment also draws close attention to a matter that I have spoken about frequently: the Government’s willingness both to say that great credibility should be placed on the reforms that they are proposing because they have come about as a result of the work of the independent review by Sir Brian Leveson, and at the same time to reject proposals by Sir Brian. When we discussed this matter before, the Minister argued that our concern was not valid because Sir Brian had said in his report that the Government could go further. In my view, it is quite the leap to say of our criticisms that specific proposals lack the authority that Ministers claim because they were not recommended by Sir Brian that the proposals would in fact, in some way, be recommended by him anyway.
While I think it is a weak point, it is probably stronger in relation to the decision by the Government to set the test for removing the jury from a Crown court trial at a sentence length of three years rather than Sir Brian’s recommendation of two years. I do not know whether he would support that—one might think he would have said so if he did—but there are what we might call matters on the continuum, where the prospect of Sir Brian’s suggestion of going further on a continuum of sentence length as the test is somewhat understandable. I do not think that argument is at all viable in relation to the measures relating to amendment 19.
There is a distinct, what we might call, category difference between the recommendation to have a judge sit alone and to have a judge sit with two magistrates. We have discussed a number of the drawbacks of a judge sitting alone compared with having a jury. I will take them in turn. First, there is the question of bias—of concerns raised in relation to different outcomes, for example for women or ethnic minorities. We have discussed this before, but I want to draw attention again to the comments of Geoffrey Robertson KC. He said:
“The determination, by 12 citizens of evidence tested by prosecution and defence, is a surer guide to the right result, reflecting common sense and common values, than the personal view of a judge”.
He also said:
“A diverse jury, usually with a few representatives of ethnic communities, serves as some guarantee of fairness and non-discrimination in dispensing justice.”
We have been leaning very heavily on the Bar, but the Criminal Law Solicitors Association says:
“Jurors, drawn from all elements of society, take jury service very seriously. Our Vice-Chair sat on a jury last year and saw his fellow jurors, without exception, treat the process with the gravity and respect that it deserves. Limiting jury trials reduces public engagement in the process and weakens democratic participation in criminal justice.”
Sir Brian was not the only person tasked to consider in detail proposals for a reform of the courts who has settled on similar views about the decision to reduce jury trials, which, as I have said, we do not support. They have also agreed that a judge with two magistrates is the way to do it. Lord Justice Auld’s 2001 independent review of the criminal courts in England and Wales recommended the creation of a new district division, with a unified criminal court structure designed to handle either-way cases that were too serious for the magistrates but did not require, in his view, a full jury trial. He proposed that the court would consist of a professional judge sitting with two experienced magistrates. He said in his report that there is a
“middle-range of cases that do not warrant the cumbersome and expensive fact-finding exercise of a trial by judge and jury, but which are sufficiently serious or difficult, or their outcome is of such consequence to the public or defendant, to merit a combination of professional and lay judges”.
That was a specific choice to say that there was merit in lay as well as professional judges taking part.
Sarah Sackman
I thank the hon. Member for Chichester for tabling amendment 19. I reiterate how grateful we are to Sir Brian Leveson and his team for their thorough review, which has directly shaped the measures in the Bill, including the one we are discussing. I also thank our magistrates, who are volunteers and do a fine job in hearing 90% of the trials in this country, providing a lay element. I say this on the day that the Government have launched the magistrates recruitment taskforce, which is part of our endeavour to boost the number of magistrates in the country.
Part of the relevant backdrop to the debate that we are having about the policy choice that the Government have made in this provision is the sufficiency, experience and availability of the cadre of magistrates. The fact is that the number of magistrates in this country halved under the previous Government. That is not an easy thing to turn around overnight. For us to implement and see the benefits of these reforms, the Government are undertaking a huge recruitment drive, but of course it takes time to train magistrates.
As discussed in relation to previous clauses, we are also, as part of this reform package, diverting appropriate cases to the magistrates court and enhancing magistrates’ sentencing powers. That is a big job of work. The hon. Member rightly challenges us and says, “Is that sustainable?” It will be sustainable if we recruit the requisite number of magistrates and train them sufficiently, but there is no doubt that a pressure needs to be met because of the legacy that we inherited, so of course that practical consideration has informed the policy choice. I accept, of course, that magistrates would add a community element and community participation in judge-only trials, in the constitution that the IRCC proposed. But it is also true to say that, on page 274 of the report, the practical realities and the point about sufficiency in the number of magistrates were expressly acknowledged by the independent review, so of course the numbers of magistrates and what they have to do are an important consideration.
I am again grateful to Members from across the House for recognising not just the contribution that magistrates make, but the diversity of the magistracy. For example, 31% of magistrates in London are drawn from black and minority ethnic communities. That is in keeping with the diversity of the city.
Paulette Hamilton
The Minister makes such a brilliant point. She is right: 31% of those who have become magistrates are from an ethnic minority group. But when we look outside London, we see that we are unable to recruit in the numbers that we need in big cities such as Birmingham. Would consideration ever be given to paying younger magistrates, because they are struggling to get employers to give them time off to do this important work?
Sarah Sackman
As ever, my hon. Friend raises a very good point. Overall in the country, 14% of our magistrates are drawn from black and minority ethnic communities. The picture is not bad in the midlands, which my hon. Friend takes a particular interest in. The reality is that we are not in a position to pay our magistrates, but it touches on another consideration in this context. As I have said, I fully accept that magistrates would add a community element to the Crown court bench division, but it is also true to say that in relation to longer and more complex matters, which necessarily are what we are talking about when we are talking about the Crown court bench division, the type of magistrate who can give up their time for the length of time needed to hear longer trials—for weeks at a time—is, I would suggest, inevitably skewing towards the less diverse end of the magistracy.
The other point to make, in addition to the practical one, which I have been transparent about throughout, is the normative one. If I can put it colloquially, the Government make this policy choice because we believe our judges can do it. We believe they can do it for the reasons that I have reiterated in earlier parts of the discussion: their integrity, impartiality and ability to manage the court efficiently. And we see parallels—international comparators. I will again draw on Canada, where this is done to good effect while maintaining the fairness and integrity of the trials.
Introducing a requirement for magistrates to sit alongside judges would risk delaying the implementation of these reforms and, with that, delaying the benefits to victims, defendants, complainants, witnesses and the wider justice system. The Government’s view is that in that time the backlog would continue to grow and remain unresolved, and we cannot have that. I therefore urge the hon. Member for Chichester to withdraw her amendment.
Jess Brown-Fuller
I recognise the comments made by the hon. Member for Isle of Wight East. I agree that the amendment would not go towards restoring jury trials, and I will continue to push for jury trials to remain at their current thresholds. However, in the absence of the Government budging on that issue, I will continue to table amendments as we go through this process, and I know that the hon. Member for Bexhill and Battle echoed those points.
The Minister rightly talked of the pressure in the system that must be met. We all feel that deeply across the House; no party represented on the Committee thinks the status quo is acceptable, or that a good version of justice is being served for anyone who is sitting in that backlog, or who is being told that their case will not be heard until 2029. However, the Minister also recognised that the lay element is really important, which surely strengthens the argument that she would not be doing this if she had capacity in the magistracy. If the magistracy was running at full volume, or at its numbers from 15 years ago, she would be including that lay element in the Crown court bench division.
There is a balance to be struck, and the balance should not see our fundamental justice system reduced or degraded in any way. It is something that we should be proud of in this country, and we should protect its core principles. I will push the amendment to a vote.
Question put, That the amendment be made.
Yasmin Qureshi
I beg to move amendment 26, in clause 3, page 8, line 36, at end insert—
“(h) fairness when considering the rights and circumstances of the defendant;
(i) the interests of justice.”
The Chair
With this it will be convenient to discuss amendment 44, in clause 3, page 8, line 36, at end insert—
“(h) whether it is in the interests of natural justice for the defendant for the trial to be conducted with a jury.”
This amendment would ensure that where the decision for a judge-only trial is being considered for reallocation following a change in circumstances, that the judge must consider whether it is in the interests of natural justice for the defendant to have trial with a jury.
Yasmin Qureshi
The amendment would add to proposed new section 74C of the Senior Courts Act, which concerns matters that must be taken into account when determining allocation in cases that are already set to have a jury trial. Amendment 26 would add two further conditions that must be considered when making such allocation decisions. First, it would add
“fairness when considering the rights and circumstances of the defendant”,
and secondly, whether the decision is in
“the interests of justice”.
Those two additional grounds would constitute an important safeguard for a defendant, especially given that these provisions are being applied retrospectively to cases that are already listed. We do not know what the criteria will be for reallocating existing cases in the system. For example, will it apply to those in custody, those very near to their trial time or those who are set down for trial within a short period of the Bill commencing, whenever that may be? No clear guidelines have yet been published on how the allocations will be dealt with.
We also do not know whether the decision to reallocate will be made by the resident judge of a particular Crown court, or whether a court’s listed cases be dealt with by the court administrators who are just doing the list, which is how many things are dealt with. We do not know what the procedure is going to be—we have no idea how the allocation process is going to work—so we are asking for these two particular provisions to be added to the Bill to ensure that there is a proper safeguard in the system.
Dr Mullan
I rise to speak in support of my amendment 44 and related amendments, which brings us to consider the issue of reallocation in more detail for the first time. It was touched on briefly this morning in the discussion about allocation, but there are distinct differences in the processes.
We must remind ourselves what the allocation process will be initially through proposed new sections 74A to D of the Senior Courts Act 1981. My understanding is that the reallocation provisions are intended to operate in the following way. First:
“The court must, at the prescribed time or times, determine”
in accordance with proposed new section 74A
“whether the trial is to be conducted with or without a jury.”
It is important to note that “prescribed time” is not defined in the Bill, but would be covered by the existing provisions in sections 84 to 87 of the Senior Courts Act, which refer to prescribed matters being specified in the criminal procedure rules. The explanatory note does not appear to provide any further detail on what the criminal procedure rules are likely to prescribe in terms of timing, so it would be helpful if the Minister could tell us what she expects that to be.
Whatever the prescribed time is defined to be, the court must say that the trial is to be conducted with a jury if either the offence, or any of the offences, is triable only on indictment or if the court considers that the defendant, if convicted of the offence for which they are to be tried, would be likely to receive a sentence of imprisonment or detention of more than three years. In any other case, the trial is to be conducted without a jury.
We have covered this initial decision at some length, but the proposed legislation also says that if a trial is to be conducted without a jury but there is a relevant change of circumstances, the court may—and in some cases must—reallocate the case to a jury trial. A relevant change of circumstances is defined in proposed new section 74B(8), and will occur if either the defendants to be tried, or the offences for which they are to be tried, have changed since the court’s last determination on allocation, or it appears to the court that there is new evidence that would or might affect whether the condition in proposed new section 74A is met, and that condition relates to a likely sentence of imprisonment of more than three years.
This is something to which we must give close consideration. The Bill does not define the term “new evidence”, and I am not aware of it being defined elsewhere in legislation. We can look to the explanatory notes to try to better understand what is meant here. In paragraph 206, the notes say:
“This is intended to capture significant new material indicating that the offending is more serious, or less serious, than originally understood. It is not intended to require the court to redo the full allocation exercise each time new evidence emerges, but simply to note where new material might alter the earlier likely-sentence assessment so as to justify reconsideration under section 74B.”
The explanatory notes are helpful, but we must remember that they are not legislation and that the courts are more likely to seek to interpret differently what may or may not be said in an explanatory note from something that is given clear direction in legislation.
The explanatory notes actually leave us with not just one but two new terms. Again, as far as I am aware, “significant new material” is not defined in legislation; there is certainly no case law for it in these specific circumstances, as these courts have never operated before. I do not think we can know in practice how it would be obvious that something amounted to new evidence for the purposes of proposed new section 74B(8); the Bill, as I have said, is silent on this point.
Do we have to assume that that will become a matter of judicial interpretation or discretion? I think we do. It might be evidence that was not already set out in the initial details of the prosecution case or in a defence statement. While the explanatory notes say they do not expect this process to be done on a rolling basis, I assume that the prosecution and defence would be able to invite the judge to consider whether evidence amounts to “new evidence” whenever it was brought to the attention of the court as part of the general conduct of the trial. Again, this is not specified in the Bill, but it is certainly not ruled out.
If there has been a relevant change of circumstances meaning that the case involves an indictable-only offence—for example, if new evidence emerges that results in a charge of theft being recharged as robbery, or a charge of sexual assault recharged as rape—the judge must reallocate it to a jury trial. To be clear, that is in relation to offence-based things. If there has been a relevant change of circumstances, but the aforementioned process does not apply—for example, if there is new evidence that means a custodial sentence of more than three years is likely—the judge may reallocate that to a jury trial. The use of “may” is important, because may is not must.
I draw Members’ attention to the wording of the initial process of allocation. Perhaps to the frustration of some, I took the time to read it, because it is important. The initial wording on allocation with regard to sentence times is “must”—if the court thinks a sentence of more than three years is likely, it must allocate a jury trial—but as I pointed out, on reallocation the court simply “may” reallocate. I hope it is immediately obvious to Government Members that that is a less stringent test, which creates an inherent unfairness.
At the outset, if a judge thinks that a defendant or accused is likely to receive three years, that jury trial is guaranteed. Let us remind ourselves that the Government accept that that is a benefit or a right—although they do not accept it is an absolute right—if the outcome is potentially a sentence of more than three years, yet some people will not get that benefit, even though the Government accept that it is desirable, because the Bill states that the judge has discretion to continue conducting the trial without a jury despite the relevant change of circumstances.
The judge has that discretion if any of the following applies. First, they have that discretion if the condition in proposed new section 74A—a likely custodial sentence of more than three years—is not met in relation to the defendant. Secondly, and this is the important bit, in proposed new section 74B(3)(b), they have that discretion if
“the court considers that it would not be appropriate to reallocate the trial”,
taking into account the matters set out in proposed new section 74C(6) and (7). Those include representations by the prosecution and defence; the extent to which the new likely sentence differs from the three-year threshold sentence; the interests of the alleged victim; the desirability of avoiding the need for witnesses to give evidence again; any delay to proceedings; any actual or potential wasted costs; the effect of reallocation on other court business; and any other prescribed matter set out in the criminal procedure rules.
Thirdly, the judge has that discretion if, as proposed new section 74B(3)(c) states,
“the prosecution and the defendant or defendants each consent to the trial being conducted without a jury.”
Therefore, if the defendant is happy to carry on without a jury, even though they risk the higher sentence, the trial can continue—and similarly for the prosecution.
Some of those examples set out in proposed new section 74C(6) and (7) could legitimately deny a defendant a right that they would otherwise have had if the evidence had been available at the start of a trial. It could be something that has nothing to do with them—for example, a witness might not give the same evidence in their statement as they do at trial. Another example is the effect of reallocation on other court business—so simply because it would be challenging for the court to allocate or reallocate the case, a right that the Government deliberately set out to preserve for those people at initial allocation could not be exercised at that point. Again, in essence, those are all new legal tests.
We have a whole range of factors, many of them subjective matters that must be weighed, rather than objective ones. They may all be factors that we might reasonably agree should be given weight, such as—to go back to some of the factors—the interests of the alleged victim. If an alleged victim has had a traumatic experience of giving evidence, it is not unreasonable for people to consider that. That does not mean, however, that it will not lead to circumstances in which a defendant is substantially disadvantaged.
Let us take, for example, a case related to injury. In a case of assault occasioning actual bodily harm, the sentencing range for this offence, triable either way, can include a sentence of up to four years. That is a good example of where we might see a change in circumstances, based on the evolving medical consequences of an alleged assault.
A more concrete and simple example than a medical injury that might evolve from an assault, which is complex, is a person who is originally on trial for grievous bodily harm or attempted murder, but the victim dies during the trial or at a much later date, which can happen, and the person can be retried for a further offence. We know that the medical consequences can take time to materialise and can make a material difference to the charge. There are other borderline cases where the likely sentence at the point of the initial allocation decision was considered to be just under three years.
To give another example, the sentencing guidelines for the most serious harm or culpability form of theft suggest a starting point sentence of three years and six months, with a suggested range of two years and six months to six years. That is absolutely within the scope of not being allocated a jury trial, but if the medical consequences were to evolve, that would change and push it to a sentence of up to six years, which would require a jury trial.
As the hon. Member for Amber Valley, with her expertise and experience of the CPS, pointed out in relation to things that already happen in a magistrates court, we know that magistrates have to undertake this sort of intellectual exercise. They must be mindful that if the circumstances change, the trial must move to the Crown court. I understand that is quite unusual, however, and as we have talked about before, the stakes are likely—not always—to be lower when we are talking about a potentially much wider gap in possible sentence length.
Strangely, this may be an example of something that magistrates do but, as I understand it, Crown court judges do not normally do; Crown court judges do not have to have it constantly in their mind throughout a trial whether their view has changed on the likely sentencing outcome. As I have alluded to, the legislation therefore risks creating a whole raft of legal challenges over potentially many years until there is a settled common law understanding of how all the different measures interact, and until higher courts set out the methodical tests and boundaries that are absent from it.
The obvious test will arise when someone does actually end up receiving a longer sentence, and the obvious challenge will be that the judge should have realised and reallocated the case because of something considered materially new. That will be highly arguable. Let us say, for example, a complainant, when giving evidence, identifies a more profound psychological impact of a crime on them that was apparent from the initial statements disclosed—something that is to some extent subjective. The judge might listen to the evidence being given and not consider it to be materially different from the statements on which they based their initial summation, but I can absolutely imagine a defendant and their legal representatives feeling that a witness did say something that indicated something materially different. That is another more complex decision than the one made by the magistrates courts in a different way.
As we have heard again and again, although magistrates court trials can be long, they are often shorter. Weighing up the impact of restarting that trial, of discounting the work that had been done and of re-sending it to another court, is very different from making that decision after weeks and weeks of a Crown court trial.
There is also another risk in terms of public confidence in the process. As we have touched on before in relation to the initial allocation and sentencing, the judge will have already made a decision and given a view on initial allocation. There would be a risk that a defendant feels that their right to a jury trial, if the circumstances are such that they would have been concerned that the sentence would be greater than three years, might inhibit a judge from reallocating in the way that they would have ordinarily wanted to.
As we have covered, the judge will be able to pass that higher sentence, which is another important difference with the magistrates, who, as I have talked about before, are constrained in their ability to go beyond that initial judgment. There will be no constraints, so it would be perfectly possible for a judge who had an initial view to end up passing a sentence much higher than they had anticipated and much higher than the defendant was advised would be the likely outcome. Again, that would give serious impetus for a defendant and their legal representatives to make the point that the judge had erred in their reallocation.
It is not just a question of the fair thing to do. I explained earlier in relation to other allocations that I do not think it is the fair thing to do, but again it is a matter of efficiency and process. If we end up with repeated appeals over, as I have said, many different factors that will all individually need to be clarified in case law, that will again take up the time and energy of court staff, and particularly legal representatives, who work between all the different courts in a way that judges do not.
Amendment 44 would help to balance that by opening up the widest possible interpretation of whether a reallocation is the right thing to do. We think talking about it in the interests of justice will give the maximum possible room to defendants to be sure that the trial they receive without a jury, and the decision taken to deny them a jury, are as fair as they possibly could be.
Sarah Sackman
I thank my hon. Friend the Member for Bolton South and Walkden, who is no longer in her place, and the hon. Member for Bexhill and Battle for their amendments.
I will begin with amendment 26. The defendant’s interests are already embedded into decision making on mode of trial reallocation. Parties are given the opportunity to make representations on reallocation, meaning the defence can draw the court’s attention to how the factors in the Bill intersect with a defendant’s interests, including the impact of delays to proceedings. Parties are also able to override a judge’s decision to reallocate to a jury trial if they both consent to remain in front of the Crown court bench division judge-alone, allowing, for example, a consensus for swifter justice to prevail.
At the same time, clause 3 requires the court itself to have regard to the interest of complainants—victims—when deciding whether reallocation would be appropriate. Those interests would be properly weighed by the court alongside the other factors set out in the Bill.
Finally, an additional “interests of justice” factor would be superfluous, not least because many of the factors that already fall under an “interests of justice” test, such as delays to proceedings and the impact on witnesses, are already taken account of. Introducing such a broad and undefined factor would risk undermining the structured and calibrated framework that Parliament is being asked to approve. It would also reintroduce uncertainty into the decision making that the clause is designed to make clear and workable in practice—not just the clause, but any accompanying criminal procedure rules. I have faith in our judiciary to make informed and robust decisions on the mode of trial reallocation. As such, I urge my hon. Friend to withdraw her amendment.
Turning to amendment 44, where an indictable-only offence is added to a bench division case, it will always be reallocated to jury trial. Where a jury trial has started, it can never be reallocated to the bench division. The principles of natural justice encompass the right to a fair trial, the rule against bias and the duty to act fairly. All of those elements are preserved in these reforms. The amendment would not add any substantive protection beyond those safeguards already in place.
Jess Brown-Fuller
On a point of clarification, in the instance where a jury trial may begin but the case is adjourned for any reason, could it be reallocated to the Crown court bench division at a later date when it is rescheduled, or would it continue to have a jury trial?
Sarah Sackman
Under the provisions, where a jury trial has started, it cannot be reallocated to the CCBD.
Jess Brown-Fuller
I am just trying to get some clarification about when a jury trial “has started”. If a jury trial is listed on a day but the case is adjourned, it does not go ahead. Cases can be adjourned for many different reasons—the defence or the prosecution could not be ready. In that instance, where the case is adjourned to be relisted on a different day, would the defendant maintain their right to a jury trial or could it be reallocated to the bench division?
Sarah Sackman
What circumstances does the hon. Member envisage would trigger that reallocation? The allocation has been made—it has been allocated to a jury trial. She is right that it has not yet commenced, which is the point I was dealing with, but the circumstances we are dealing with here fall into two broad categories: first, where the nature of the offences in question changes; or secondly, where new evidence comes into play mid-trial, which is so material as to lead to an application to reallocate, or even to a judge of their own volition deciding that the seriousness necessitates reallocation. I cannot see, where it has been allocated already but has not yet commenced, why that would be triggered. But maybe I have missed something.
Dr Mullan
I talked about how the medical picture can evolve in a worsening situation. We can also get that situation in reverse. For example, in A&E, the A&E consultant’s interpretation of an X-ray, to determine whether someone has broken a bone, can be a key fact in deciding the classification. But when that goes to a radiologist, sometimes two or three weeks later, they have that more expert view. This happens quite regularly: they review the X-ray, CT scan or whatever it might be and say, “Actually, no, there isn’t a fracture here.” That would then drop down the injury to a different category. In that intervening period, which could be a matter of weeks, there would be a change to the nature of the charge.
Sarah Sackman
What I am seeking to be clear on is that when we are talking about the trial being commenced—a perfectly good question—I am saying that if the trial has started and there has been the first day, and then for whatever reason there is an adjournment, in those circumstances we would never see such a trial reallocated to the bench division.
I suppose there may be circumstances in which there is an adjournment and new evidence could come to light, or a new offence or a new charge could be added to the indictment or withdrawn, which I suppose might trigger a reallocation decision, but the trial itself would not have commenced. In those circumstances, I think I am right in saying that it is possible that it might get reallocated at that point. I will come back to the hon. Member for Chichester if anything I have said on that point is inaccurate.
Amendment 44 would not add substantive protections, because the defendant in every Crown court trial, irrespective of whether it is Crown court bench division or before a jury, would be considered to receive a fair trial. The mode of trial itself has no bearing on the fundamental fairness of the proceedings.
We have designed the test for mode-of-trial allocation in clause 3 to ensure that the relevant interests are properly balanced by the court. Parties are given the opportunity to make representations on allocation and the court must have regard to the interests of victims when deciding whether reallocation would be appropriate.
I make one final point. The hon. Member for Bexhill and Battle raised a concern about rolling applications throughout the course of a trial. I think the Government’s view is that that is unlikely to be the case, because while new evidence is a feature of trials commonly, it is not all that often that such new evidence alters the fundamental seriousness of the case to such an extent that it would engage the tests that are here. I am not sure that it is quite the concern that the hon. Member suggests, and I urge him to not press amendment 44 to a Division.
The Chair
As the hon. Member for Bolton South and Walkden is not here to press amendment 26, is everyone content for that amendment to be withdrawn?
Amendment, by leave, withdrawn.
Amendment proposed: 44, in clause 3, page 8, line 36, at end insert—
“(h) whether it is in the interests of natural justice for the defendant for the trial to be conducted with a jury.”—(Dr Mullan.)
This amendment would ensure that where the decision for a judge-only trial is being considered for reallocation following a change in circumstances, that the judge must consider whether it is in the interests of natural justice for the defendant to have trial with a jury.
Question put, That the amendment be made.
Dr Mullan
I beg to move amendment 42, in clause 3, page 9, line 23, leave out subsection (4) and insert—
“(4) Where a court has determined in accordance with section 74A that a trial is to be conducted without a jury, the court cannot pass a sentence of imprisonment or detention of more than three years on a person convicted of an offence.
(4A) Where a person is convicted of an offence and the court considers that the appropriate sentence is more than three years’ imprisonment or detention, the court must refer the case for retrial by jury.”
This amendment prevents a judge sitting alone from sentencing a defendant to more than three years in prison, and requires that if this is the likely sentence, the case must be remitted for trial by jury.
It is my pleasure to speak in support of amendment 42, tabled in my name, which really drives at the heart of the question of fairness in relation to this new system. It would prevent a judge, sitting alone, from sentencing a defendant to more than three years in prison, and requires that, if that is the likely sentence, the case must be remitted for trial. Again, related to the important points I made earlier, it also introduces the element of “must”.
Again, we have to revisit the process of allocation; triable either-way offences will be allocated on the basis of sentence length. That is the important part for us to consider here. The Government have agreed that the suitable manner in which to allocate offences to trial with or without a jury is based on sentence length. We can only conclude, therefore, that the Minister accepts that the possible consequence—the possible time in prison—is intrinsically linked to the fairness, reasonableness, desirability or however the Minister might want to describe it of remaining with a jury trial.
In this case, if criminals—because they will have been convicted at this point, we can say criminals rather than defendants—ended up with a sentence of more than three years, they would have a reasonable basis on which to say that their treatment was not in keeping with the Government’s own decisions about what would be preferable in relation to fairness. Let us be clear: I spend a lot of time working with victims and campaigning for longer sentences for offenders, and I think that, across the board and for many decades, our sentencing regime for convicted criminals has been insufficiently punitive and has given insufficiently long sentences. But that does not mean that I do not think that there is a fair and proper way of going about that.
I agree with the Government that sentence length is inherently related to fairness in regard to whether someone gets a Crown court trial with or without a jury—although, in my view, it should always be a jury trial—but a convicted criminal now will look at this and say that he has a sentence greater than he otherwise should have expected to get, and that, if the judge had anticipated correctly that sentence at the outset, he would have had a jury trial. That would be his reasonable conclusion.
Linsey Farnsworth
On that point, what are the hon. Member’s thoughts in relation to a magistrates court where a magistrate has made a decision that a case is suitable for summary trial but then they have the opportunity—or the right if you like—to commit somebody for sentencing at the Crown court if the offence turns out to be more serious than had originally been envisaged? Actually, the safeguard for the expectation of the defendant is dealt with at an early stage—at the allocation stage—when the defendant is told of the decision that the case will stay in the magistrates court, but they could be committed in due course to sentencing in the Crown court.
Dr Mullan
That goes straight to the point we discussed earlier about why it is important to separate the two, because in this scenario it is the same person all the way through. Ultimately, the sentencing process ends up being separate to the people who decide whether or not someone is guilty, and they will have decided the mode of trial, as well.
Linsey Farnsworth
Can I also just mention Newton hearings? A defendant has pleaded guilty but does not accept all the allegations that the prosecution’s case sets out—perhaps the most serious aggravating feature. Then, there is a Newton hearing, at which a judge sits and decides what the factual situation is and goes on to sentence as well. There is already precedent in the Crown court for a judge to hear evidence, make a decision based on the evidence, and pass sentence. I wonder what the hon. Gentleman’s view on that is.
Dr Mullan
This is a great opportunity for me to learn and understand an element of the system that I did not understand—I know about it, rather than understand it.
I will go back to the point that we have made repeatedly. We are designing a system from scratch here. We have the opportunity to do things exactly as we want to. We do not have to be forced into replicating other elements of the wider system; we can design this system as we best think it should operate. I think that the best thing in this scenario, in which we are starting from scratch, would be to say to somebody that they should be able to derive the benefit of having a jury trial if the case is of a nature that the Government themselves agree would typically enjoy the benefits of a jury trial. This is just inherently a fairness question.
That is why we have replicated the process—in a positive way—in a magistrates court. The decision is the decision that has been made; the court cannot go above it. That is because we say that in a magistrates court, if someone seeks to go above that court, that is not the right place to do that; it would not be fair and reasonable. We are making a similar point here in relation to mode of trial, for jury trial.
We think that the amendment is sensible, reasonable, balanced and does not prevent the Government from undertaking their reforms; it is not what could possibly be described as a wrecking amendment. I hope that the Government will reflect on that and accept the amendment.
Joe Robertson
I echo the points made by the shadow Minister. The issue here is where sentences may go above three years. A sentence of three years or more is fairly significant. The crime, of course, will match the sentence; no one is suggesting that the sentence is inappropriate in these cases—someone has been convicted. However, the issue is that the trial—the fact of innocence or guilt—will have been decided by a judge. Without raking over too much old ground, the point in a jury trial is that on more serious offences, jury decides innocence or guilt.
What we have here, without the amendment, is a back-door way for a judge to decide what turns out to be a more serious case than perhaps had originally been thought, because the sentence passed is more than three years. As I understand it, it is not the intention of the Government to capture more cases of that serious nature than they had originally intended would be decided by a judge. They themselves are not arguing that jury trials do not have a place in this country for a great number of cases—unfortunately, not enough after this legislation.
The hon. Member for Rugby made the point in an earlier sitting that other Governments have adjusted the threshold, notwithstanding our disagreement over what is being proposed in this legislation. Clearly, the issue with this provision, if it remains unamended, is that more serious crimes, with a sentence of more than three years, will inadvertently get caught.
I cannot quite understand why the Minister will not accept the amendment, but I am sure she will address that. Once again, it would not, in any material way, move away from what she is trying to achieve with the legislation, which is tackling the backlog of Crown court cases. Again, that intention that is perfectly well meant. The amendment would not, in any way, get rid of her primary intent to get rid of either-way offences so that they are not heard by a jury. Notwithstanding the fact that I do not agree with her on that, the amendment would not defeat what she is trying to do there. Effectively, what it would do is close a loophole.
I invite the Minister to address that point about instances where a judge decides, on their own without a jury, that a case is of significant seriousness—and that may mean complexity that was not apparent at the outset but became apparent during the trial—that he or she wishes to pass a sentence of more than three years. Three years is a serious length of time for someone to be locked up and deprived of their liberty. Wherever we think that the threshold should sit, I think that we all agree that jury trials have a role in this country for more serious crimes.
If the threshold can rise above three years through that avenue, how high a threshold is the Minister willing to tolerate? In how many cases is she willing to tolerate that apparent loophole? Maybe she does not see it as a loophole. Maybe there is purpose behind it. If there is, perhaps she can explain why it is important enough to risk even her principle by having more serious crimes—those with a sentence over three years—potentially being heard without a jury. Again, I reiterate that I disagree with the primary disapplication of jury trials for what are now either-way offences. That is not what this is about; this is about the Bill doing something more than the Government may wish to do. I invite the Minister to address that in some detail.
Sarah Sackman
I will seek, as best I can, to clarify why judges sitting alone should have full Crown court sentencing powers consistent with the recommendations of the independent review of criminal courts. That review made clear that both judge-only trials—where those are prescribed—and a Crown court bench division must operate with the same judicial powers as jury trials if they are to function effectively in practice. As I have said, allocation is an early indicative assessment. It cannot and must not predetermine the sentence, which must be based on the facts proven at trial. The amendment would reverse that principle, effectively allowing an initial assessment allocation to cap the sentence ultimately imposed, or else force a retrial before a jury. That would compound a delay which, as anyone who has listened to victims’ testimonies to the Committee knows, we can ill afford.
Under proposed new section 74A, the allocation decision—whether the case should be tried by a judge alone or by judge and jury—will rely on a structured application of the existing sentencing guidelines. As I have said, we are not introducing an unfamiliar exercise, and we have full confidence that judges will apply the guidelines consistently to determine the appropriate mode of trial based on their assessment of the seriousness of the case.
In practice, the allocation decision in the Crown court will be tied firmly to the facts of the case, in much the same way as in the magistrates court. That means that in the vast majority of cases it is unlikely that a case will result in a sentence far beyond what was anticipated at the point of allocation. However, I recognise that in a small proportion of cases where evidence evolves and a case becomes more serious, appropriate safeguards must be, and will be under the Bill, put in place. That is precisely why the Bill includes provision for a reallocation where circumstances change. Where an indictable-only offence is added to the case, it must always be reallocated as a jury trial.
Where seriousness increases just enough to push the likely sentence in a case above three years, the judges must consider reallocation to jury trail. We have looked at the factors set out in the Bill, including potential delays following reallocation, any disruption to victims or wasted costs, and the effects on other trials. It is therefore essential that judges sitting alone retain the full sentencing powers of the Crown court. Unlimited sentencing powers do not expand the jurisdiction of judge-alone trials, but they ensure that once a case has been properly tried, the sentence imposed reflects the facts as found.
Against that backdrop, amendment 42 would require cases to be retried because the sentence ultimately exceeded the earlier indicative assessment. As I have said, that would introduce significant delay into the system, requiring cases to be heard twice and directly undermining the purpose of these reforms, which is to reduce the dreadful delays. The principle that the sentence must reflect the facts is important, and for that reason it is necessary that judges retain the full sentencing powers. To do otherwise would risk distorting outcomes and create unnecessary duplication and delay in proceedings, thereby undermining confidence in the system. For that reason, the Government cannot support the amendment.
Dr Mullan
I want to pick out a couple of points. The Minister has criticised the risk of retrials, and we have made several points about how other elements in the Bill will increase that risk through successful appeals and so on. I accept the Minister’s point that it is unlikely that these things will happen, but this is not so much about whether someone was expecting three years and ends up with three years and two months, for example, as the fact that there is no control of it at all.
The Minister is right that there is a reallocation process. We have debated the flaws in that, which are pertinent, but clearly the Government do not think that the reallocation process is perfect, otherwise they would not mind a cap. If they thought that the reallocation approach would manage all these scenarios, they would not oppose a cap. They want to oppose it because they accept that the reallocation process will not be perfect. Someone might be expecting a three-year sentence—I gave an example earlier, I think of theft—but could end up with a six-year sentence, double what they expected to receive. That is many years above what the Government have recognised as a suitable and acceptable threshold on which to make these decisions. It would be inherently unjust, and those sorts of situations would warrant retrial.
Sarah Sackman
Just on that point—as unlikely and rare a scenario as I anticipate it would be—would the hon. Member accept that that sentencing decision could be subject to appeal?
Dr Mullan
Yes, but the question is not whether the six-year sentence is reasonable, it is whether the mode of trial in reaching that sentence was fair. The Government agree that the preferable mode of trial in all other scenarios that could lead to a sentence of six years is a trial with a jury. Yet we could have people expecting a three-year sentence and ending up with a six-year one, which is far from the Government’s test of reasonableness for the mode of trial.
I understand the point about weighing probabilities with the smaller gap, but we are faced with the question of allowing either no gaps or very big gaps. If we are forced to choose, I will continue to say that we support amendment 42, because it is important that people do not end up in that situation. I do not know the limit; I have given an example of three to six years, but there could be even wider gaps among the offences that we are considering. That would not be reasonable, and, therefore this safeguard is important.
Question put, That the amendment be made.
Mr Kohler
On a point of order, Ms Jardine. I want to place on the record an apology to the shadow Minister. I have read some cases and, much to my surprise, I think the allocation process does come with the trial on indictment; it is not ancillary to it. Therefore, my view is that judicial review does probably come within the statutory bar, so I apologise.
Ordered, That further consideration be now adjourned. —(Stephen Morgan.)
Armed Forces Bill (Sixth sitting)
Thursday 16th April 2026
(1 day, 13 hours ago)
Public Bill CommitteesRead Full debate Armed Forces Bill 2024-26 View all Armed Forces Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Select Committee Amendments as at 16 April 2026 - (16 Apr 2026)
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Chair
We are now sitting in public and the proceedings are being broadcast. We are continuing line-by-line scrutiny of the Bill. We will begin with a few preliminary reminders. Hon. Members know the rules about food and drink. Could you email your notes to hansardnotes@parliament.uk or hand a copy to the Hansard colleague in the room? Please bob if you want to catch my eye. You can remove your jackets if you are warm; I intend to remove mine.
Clause 31
Transfers between regular and reserve forces
Mike Martin (Tunbridge Wells) (LD)
I beg to move amendment 7, in clause 31, page 51, line 2, at end insert—
“(5) The Secretary of State must, in respect of each financial year, publish a report assessing the impact of the provisions under subsections (3) and (4) on the retention of personnel within His Majesty’s forces.
(6) The report under subsection (5) must include data on the number of personnel who have transferred between the regular and reserve forces, broken down by service and rank.
(7) The first such report must be laid before each House of Parliament within a period of 12 months after the day on which this Act is passed.
(8) Each subsequent report must be laid before each House of Parliament no later than 12 months after the publication of the last report under this section.”
This amendment would require the Government to publish an annual report on the impact of provisions related to transfers between regular and reserve forces on retention in the armed forces.
Mike Martin
It is a pleasure to serve under your chairship, Mr Efford, and I thank you for the invitation to remove our jackets. Amendment 7 was tabled in my name and that of my hon. Friend the Member for North Devon. I will just briefly introduce it to the Committee.
The idea of a zig-zag career is incredibly important. Unlike previously, when the qualification needed to join the armed forces was the ability to run around a muddy field with a heavy backpack, we now live in an age in which we recognise that we need a much greater range of skills in the armed forces, and the ability to move from reserve to regular and back to reserve is incredibly important, so we welcome that the Government are introducing that. When I served, a number of people regularly moved between the regulars and the reserves—in fact, I did it myself.
However, there is a question mark as to what effect such movement has on retention. In an ideal world, we would expect it to improve, as more flexibility should mean that people are more likely to stay in the regular forces or the reserve forces. But we do not know that; this is an untried experiment, so the amendment would mandate the Ministry of Defence to provide a report to Parliament on the effect of the implementation of this clause—of this zig-zag career pathway—on retention.
Specifically, clause 31 as it stands amends the Reserve Forces Act 1996 to make it easier for personnel to move in both directions. It also amends the Armed Forces Act 2006 to enable that to happen. Amendment 7 would simply add an annual reporting and accountability mechanism on top of those transfer provisions. It would not change the function of the clause, but just require the Government to enable Parliament to monitor the situation accurately. As we know, recruitment and retention is a big problem for the armed forces.
Without such a reporting requirement, the provisions could be enacted—again, we are in favour of that—but never meaningfully evaluated. As we heard in evidence, there are so many different categories of reserve forces and many different types of engagement. They have grown piecemeal over time, and one reason for that is that there is no effective oversight mechanism, looking at things in the round. Under this amendment, the reporting requirement would establish one element of an oversight mechanism.
I conclude by saying that our amendment does not seek to amend the function of the clause, which we are in favour of, but it seeks to mandate the MOD to provide a report to Parliament, so that Parliament can exercise proper oversight and scrutiny.
Mr Mark Francois (Rayleigh and Wickford) (Con)
Good morning to you, Mr Efford, and to all members of the Committee. It is a pleasure to serve under your chairmanship again today. I will lead for my party in this section on reserve forces. I will begin by offering some comments on Liberal Democrat amendment 7, which relates to retention and transfers between regular and reserve forces, and will follow with a few remarks on clause 31.
In one of our evidence sessions, I raised the potential complexity when people wish to leave the regular armed forces and transfer into the reserves. That point is often a good time to catch them, as many people who have enjoyed their regular service but wish to earn their living in a different way are still often tempted to transfer to the reserves to keep their hand in and to continue to serve the nation and maintain the bonds of comradeship and friendship they have developed as regulars.
However, in recent years, that transfer has often proved to be administratively difficult. I have heard anecdotal horror stories of former regular personnel who have attempted to re-enlist in the reserves when their regular service has come to an end but have had to overcome an assault course of bureaucracy to do so. In fact, I spoke relatively recently to a reserve officer who had had to fight his way through what he described as “the Capita circus”.
The Minister sought to reassure the Committee in evidence by saying that this will be dealt with as a relatively straightforward administrative matter. That flies in the face of much of the anecdotal evidence to the contrary. If someone tries to initiate the transfer while they are still serving, it seems that the process works better, but if they leave it until after they have left the regulars, or if they perhaps have a change of heart after having left the regulars and decide that they want to re-enlist as a reservist after a few years, it is really difficult. In fact, I have been told that in some cases it is worse than if they just tried to join the reserves straight off, ab initio, as a civilian.
I pressed the Minister specifically on whether the new tri-service armed forces recruitment programme—the AFRP—contract was written in such a way as to allow the contractor to facilitate the process in an effective and efficient manner. Again, the Minister sought to offer the explanation that it could all be done via administrative procedures. I want to press the Minister on how exactly these administrative procedures are intended to apply in practice. Under the new contract, what, in practical terms, will be different from the rather cumbersome arrangements that we still have in place? In short, how will the creases in this system, which everyone agrees exist, be ironed out to make the transition sufficiently smooth that those leaving the regulars are not put off by mind-numbing bureaucracy if they wish to convert to reserve service?
Those are my comments on the amendment tabled by the hon. Member for Tunbridge Wells, which he introduced very well. I now turn to clause 31.
Reserves are a fundamental part of our armed forces, as both the Minister and I can attest, having served in the reserve forces at different times in our careers—although I handed back my kit shortly after the Berlin wall came down in 1989, whereas the Minister is still undertaking reserve service. Indeed, we understand he has been on manoeuvres only recently.
However, it is a fact that compared with many other nations, we still have very small numbers of reserves, with some 26,000 in the active Army Reserve and many fewer in the Royal Naval Reserve and the Royal Auxiliary Air Force and related reserves. If we put those numbers in context and compare them with the United States, which has both an army reserve and large numbers of national guard—they are organised on a state-by-state basis and report to governors in peacetime, but they can be federalised in wartime—or the reserve elements of the Chinese and Russian armies, they pale by comparison, even though, as the Minister often likes to remind us, we had very large citizen armies in both the first and second world wars.
The Army Reserve can be augmented by what is now generally referred to as the Strategic Reserve. For the avoidance of confusion, that is former regular soldiers and officers who would be liable for recall to service with the colours in a national emergency up to and including full-scale war. Indeed, the Bill extends the provision for recalling the Strategic Reserve to up to 18 years, I believe, from leaving the colours of the regular armed forces. For the record, we very much support that measure.
When asked in evidence for his estimate of the size of the Strategic Reserve, the Minister gave a definitive figure of approximately 95,000. However, to put it in context, the 2021 census—after much campaigning over quite a few years by the Royal British Legion and some MPs who backed the proposal—specifically asked respondents whether they had ever served in His Majesty’s armed forces, and just over 2 million people positively answered the question. Since then, sadly, a number of those veterans will have passed away, but given that the question was not included in the census forms dispatched to Northern Ireland, which has historically proved a very healthy recruiting ground for our armed forces, it seems not unreasonable to assume that the current number is still probably somewhere around 2 million living veterans, or relatively close to it. Moreover, the Minister also revealed to the Committee, assisted by witnesses from the Ministry of Defence, that about 1 million of those people are still of what he called employment age. I take it that he means males aged up to about 67.
I cite those figures to try to estimate the maximum theoretical strength of the Strategic Reserve—or, in military parlance, the absolute right of arc—if all those living veterans were included. Of course, in practice they would not be if they were in their 80s or 90s. For the avoidance of doubt, I do not think we are proposing to put Chelsea pensioners in the Strategic Reserve.
We can discern from that calculation that the absolute maximum is theoretically about 2 million—assuming for a moment that we also include veterans who have also served in the Royal Navy and the Royal Air Force, because they will have ticked the same box. If we cut it differently and include only those of employable age, the Strategic Reserve would come out at about 1 million. If we believe that 95,000 is too small a Strategic Reserve to act as a credible deterrent, particularly given the darkening international situation that we face at present, could we, as it were, draw a line or establish a set of criteria that would achieve a Strategic Reserve of somewhere between 95,000 and, for the sake of debate, a quarter of a million? That would be a much more credible figure in deterrent terms.
I ask the question deliberately to provoke debate about how we could, if we chose, expand the Strategic Reserve from the Minister’s 95,000 figure. If he cannot answer that question off the top of his head, perhaps he could write to me, to you, Mr Efford, and to other members of the Committee prior to Report about where, at least theoretically, a line could be drawn—perhaps defined by age or some other criterion—to create a Strategic Reserve of about a quarter of a million troops, rather than just under 100,000.
Moreover, if we were to consider something as ambitious as that in order to provide a greater deterrent effect, how would we track and communicate with those people, above and beyond access to the His Majesty’s Revenue and Customs database that Ministers have prayed in aid before? For instance, if we assume that quite a number of those veterans are in receipt of a military pension of one type or another, presumably they would be known to Veterans UK and at least their basic details would be recorded on the MOD’s joint personnel administration system. Could we not use that as a means of tracking down those people?
The Minister for the Armed Forces (Al Carns)
I thank the hon. Members for North Devon and for Tunbridge Wells for the amendment. It is a pleasure to serve under your chairmanship, Mr Efford, and I thank the Clerks and staff, who are doing a fantastic job. I acknowledge Members’ concerns about the importance of retaining skills in the armed forces, which we all agree is critical to ensuring that we have a fighting force.
Let me address amendment 7. Despite the well-documented historical shortfalls in recruitment and retention, the figures are now far more positive. Under this Government, inflow is up around 13%, which we welcome, and outflow is down 9%. We have cut a lot of red tape—I will come back to that in a minute—addressed system blockages and established a ministerial board to oversee both inflow and retention, among many other improvements.
However, we are not complacent, and we are looking to drive our retention rates up further. Transparency and parliamentary scrutiny are crucial throughout this process, so that the public can clearly see how the changes we are implementing are enhancing their experience and delivering good value for the taxpayer. I appreciate the call from the hon. Member for Tunbridge Wells for an annual report, but I am concerned that that would create an additional layer of bureaucracy and red tape and largely duplicate information that is already available. As he mentioned, there is a need to step back and look at the issue holistically.
To give Members a small example, we publish around 80 statistical reports every year—some quarterly, some yearly and some twice a year. That is a huge amount of data that is collated and presented both to Parliament and as open source. We already publish, and will continue to publish, information on the size and make-up of the armed forces through our quarterly personnel statistics, which will make plain the effects of retention measures for both regulars and reserves. We also continue to publish the outcomes of the various continuous attitude surveys that the MOD runs annually, where we can see the change in attitude to some of the key drivers that affect people’s desire to stay.
One of the key measures to assist with this is clause 31, which will ensure that regulars do not have to leave their service to join the Volunteer Reserve, thus making career transitions and flexible careers far easier. The right hon. Member for Rayleigh and Wickford mentioned some of the bureaucracy and difficulties in leaving regular service and joining the reserves, and a plethora of evidence highlights that difficulty. The clause will remove the requirement to leave one service and rejoin the next. Around 1,500 ex-regulars join the Volunteer Reserve every year—about a third of the total intake.
Another issue with people going from the regulars to the reserves is that a lot of senior-ish ranks leave—OF-3s, OF-4s, majors or lieutenant colonels—and there is just not the space or requirement for them in the reserves, so sometimes they have to de-rank or join at a different level, creating another bureaucratic hurdle. Although the clause will make it easier for service personnel to transfer from the regulars to the Volunteer Reserve, and we encourage them to do so, it is on a mutually agreed basis; there must be a suitable role for them to go to—for example, rank, skills and so on—and the serviceperson will have to agree to the terms and conditions.
Mr Paul Foster (South Ribble) (Lab)
I can provide a real-world example of how ludicrous the current system is. A friend of mine joined the Paras, completed P company, served with the Paras, smelt the coffee, and joined the REME and transferred to the Royal Engineers. He served for about 12 years in colour service and left. Within a year of leaving, he wanted to join his local reserve infantry unit, which said that it would accept him only if he did full reserve basic training. I take it that this legislation will prevent that nonsense in the future, because it seems ludicrous.
Al Carns
My hon. Friend highlights a good point. That issue is replicated across the entire service—not in all cases, but in many. People are having to go back through medical within six months of leaving, having to go back through basic training, or having to redo the commando course—you name it. There is a litany of issues. The Minister for Veterans and People is looking at that to see how we speed up the process. Sometimes there is no room for those individuals in the reserve liability, given the rank and position they want to come in at, which can create a difficult discussion about whether they have to de-rank—joining at a lower rank than they left. I absolutely agree that we have to smooth out those issues, and the Minister for Veterans and People is on it.
Mr Francois
The hon. Member for South Ribble has raised a good point. When people leave the regulars now—I am probably rusty on this—is there a standard operating procedure where they are invited to consider joining the reserves and given a pathway for doing that before they leave? All the anecdotal evidence says that if they try to transfer at that point, it is still bureaucratic, but it is a lot less bureaucratic than doing it after they have left. Do we ask that question as a matter of course and offer people a pathway if they say yes when they are still in the regulars?
Al Carns
Because of the decentralised nature of the military, some units, depending on reserve liability, will absolutely try to recruit those individuals into the reserve immediately. There is not carte blanche across the entire military, because in some areas we do not necessarily need those individuals in the reserves—if that makes sense.
Going back to the point made by my hon. Friend the Member for South Ribble, there is a lot more work to do to make the transition much smoother. Clause 31 will reduce the huge bureaucratic hurdle of individuals having to leave the regular military to join the reserves. Over time, it should become seamless, so someone can also go from the reserves back to the regulars. We want to replicate a civilian job where, for example, if someone has welfare issues, they can leave and do a couple of years in the reserves, and then come back into the regulars far more seamlessly. That will also allow someone to pursue a career in the defence industry, for example, if they are a technical expert.
David Reed (Exmouth and Exeter East) (Con)
It is a pleasure to serve under your chairship, Mr Efford. I raised a point about clearances when we first started discussing the Bill, and that is one of the sticking points we need to get right. If people have secured security clearances—enhanced developed vetting—in the military, but then go into an organisation that does not hold that clearance and it elapses after three, six or however many months, they are lost. If they then want to go into the defence industry where they might need developed vetting—and we want those people to be going into the defence industry—they have to start the process all over again. They might waste 12 or 18 months, or two years, getting cleared again. Can something be done to hold clearances in a sort of bucket—I know other organisations do that—to make that zig-zag process a lot easier?
Al Carns
I would like to return to the hon. Gentleman with the detail around that vetting process, but I will give an example of some of the complexities. If an individual leaves and goes to work overseas for another company, that may invalidate their DV status, so we need to take it case by case. However, he is absolutely right that we need to make it easier, if we are going to adopt a zig-zag career process, for vetting to follow suit, almost by exception, but individual cases need to be taken into consideration.
Clause 31 amends part I of the Reserve Forces Act 1996 and section 331 of the Armed Forces Act 2006, which concern the transfer between regular and reserve forces—something I just discussed. The changes to armed forces legislation will enable those of warrant officer rank equivalent and below to more easily transfer to the Volunteer Reserve. Further, they will permit a more seamless transfer into regular service for reserves. We will also amend the secondary legislation that covers officers, who are employed differently and therefore not covered by this legislation, so that the same effect is achieved for them.
To address the comments made by the right hon. Member for Rayleigh and Wickford, the Strategic Reserve is slightly different. I will be relatively honest: the reserve architecture that we have inherited, which has gone on for multiple Governments, is a continual layering of bureaucracy, to such an extent that I describe it as a spaghetti soup of terms and conditions of service, pension payments, liability, skills, qualifications and patronage. It needs simplifying. Alongside other clauses, clause 31 is one of the first steps in moving towards a more simplified process that will allow us to capture data more effectively and use the Strategic Reserve as and when required.
I give a couple of examples. The right hon. Member was right to mention that there are 2.1 million veterans out there. Most of them came from conscription or national service, and the reality is that we never kept records on any of those individuals. There are records on some pensions, but not all of them were entitled to pensions because the pension system was different. As a result, it is exceptionally difficult to map and track their skills and capabilities, and even how long they served. Those are some of the reasons why it takes so long to go through the claims process. There are warehouses full of documents and medical records that are still analogue, not digital. They require humans to go through big yellow pages of files to find data to cross-check with doctors and so on. The records and recording system have never been digitised, and it is exceptionally difficult to do so.
On the Strategic Reserve and the numbers, circa 15,000 people leave the military every year. At the moment, for those in the Army, Navy or Air Force, whether they are an officer, warrant officer or another rank, depending on how long they have served, there is a different liability for return to service. That means that when they leave the gates, they still have a return of service and they can be called on by the nation to serve again. That can be for four years, six years or 18 years in some cases—it depends. It might be more for an officer or less for another rank. It is, again, a complete mess. The Bill simplifies it. Everybody will do 18 years. Whether someone is an officer, another rank, Army, Navy or Air Force, they will do 18 years when they leave the military.
I am a marine, so Members should be careful of my maths, but 15,000 times 10 will give us 150,000 in the Strategic Reserve within 10 years. That is on top of what we already have—on top of those in the reserve and regular forces. That is probably two echelons of the Army. It is a fantastic clause that gives us more redundancy and resilience as a nation over the longer term, and ensures that we have a proper package.
The critical part, highlighted by the right hon. Member, is how we collect the data. How do we ensure that we can track and pull back the right skills at the right time to deliver the effect we need, whether that be a Typhoon pilot, a nuclear engineer, a chef or an infantryman? We are working through the details. There is something clever to be done with the veteran ID card, with pensions—although there is a GDPR issue there—and with the individual’s requirement to stay in touch with the military. It is a combination of all three, while accepting that some people who leave the military want nothing to do with the military ever again.
Mr Francois
I take the Minister’s point that via this method we could have a Strategic Reserve of 150,000 within a decade, but what if we do not have a decade? I suspect we will return to the point this afternoon, but for now, to use the Minister’s analogy of trying to cut through the spaghetti soup—I think we are all with him on that—how do we increase the size of the soup bowl? How do we have a bigger pool of manpower and womanpower that we can draw on, if necessary, in a full-scale war? These people will have had at least some military training and will be able to train others who have had none. That is why we are suggesting that we at least look at the practicalities of 250,000. Could the Minister say something about that?
Al Carns
I mentioned some statistics about what we have now. It is circa 90,000 to 95,000 when we add in the four-year, six-year and 18-year mix that we have across our terms of service. If we then add on, say, five years times 15,000, we again get into the space of about 150,000 to just shy of 200,000.
When we look at the maths for the Army, we see that it needs about an echelon to two echelons in depth, and then it needs a training cadre to deliver that capability. That training cadre will primarily be the reserve forces we have already. Consequently, I think we have done enough to move the dial to give us a big enough number and to standardise the process. As always with these things—I am not a data expert—the trick is collecting the data and then being able to analyse it at the right time to get the right force that we need, because we may not need all of those individuals back. We may need very specific skills or individuals.
I will return to some of the tri-service changes. The tri-service transition framework will be launched this month. It aims to standardise the process for leaving, to tackle inconsistencies for vulnerable cohorts and in skills capture, resettlement, employment support and regular-reserve transfer. That is heading in the right direction.
A lot of the changes that I have just talked about will bring immense benefit to both those in the regular service and the reserve service, by removing the administrative issues that service personnel face, and have faced in the past, when leaving and rejoining, or as they seek to move between regulars and reserves and vice versa. This is vital to the wider work that we are doing to create a new framework that will allow for a more flexible service, ensuring that we have access to the right skills and increasing retention by offering alternative forms of service. That reflects many of the recommendations in the Haythornthwaite review, which was conducted under the last Government.
I hope that what I have said provides the necessary reassurance to the hon. Member for Tunbridge Wells. I ask him to withdraw amendment 7 and I commend clause 31 to the Committee.
Mike Martin
In the light of the Minister’s comments, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 31 ordered to stand part of the Bill.
Clause 32
Call out for permanent service
Question proposed, That the clause stand part of the Bill.
The Chair
With this, it will be convenient to discuss the following:
Amendment 1, in clause 33, page 51, line 31, at end insert—
“(2B) This section does not apply to any person who was discharged from the regular services or the reserve forces for a medical reason relating to physical or mental health.”
This amendment makes former service personnel who have been discharged from the armed forces for a medical reason relating to physical or mental health exempt from being recalled to permanent service.
Amendment 20, in clause 33, page 52, line 1, leave out “65” and insert “67”.
This amendment increases the maximum age for service in the Reserve Forces from 65 to 67.
Amendment 21, in clause 33, page 52, line 10, leave out “65” and insert “67”.
This amendment is consequential on Amendment 20.
Amendment 22, in clause 33, page 54, line 6, leave out “12” and insert “18”.
This amendment would extend the duration of a recall order from 12 months to 18 months.
Amendment 23, in clause 33, page 54, line 43, at end insert—
“69C Prevention of recall for persons in reserved occupations
(1) The Secretary of State may make regulations to define certain categories of civilian work as reserved occupations.
(2) A ‘reserved occupation’ under subsection (1) is any category of civilian work which the Secretary of State deems as vital for defence purposes.
(3) Persons undertaking a reserved occupation may be exempted from a recall order under section 69A for which they would have otherwise been liable.”
This amendment would allow persons undertaking civilian work which the Secretary of State deems vital for defence purposes to be exempt from a recall order under section 69A.
Amendment 24, in clause 33, page 54, line 43, at end insert—
“69C Notice periods for recall
(1) Those reservists in Army Reserve Group A, or its equivalents, shall, following the coming into force of the Armed Forces Act 2026, have their standard notice reduced from readiness category R9 (180 days) to R8 (90 days)
(2) For the purposes of this section, ‘Army Reserve Group A’ has the meaning defined in the Reserve Land Forces Regulations 2026.”
This amendment would increase the readiness requirement for reservists in Army Reserve Group A from 180 days to 90 days.
Clauses 33 to 35 stand part.
Schedule 5.
Clause 36 stand part.
Al Carns
Clause 32 amends the Reserve Forces Act 1996 to enable the Secretary of State to disapply aggregate service for members of the reserve forces when making a call-out order under sections 52 or 54 of the 1996 Act. Currently, the maximum duration of service under a call-out order under section 52—for national danger, great emergency or an attack on the United Kingdom— cannot usually exceed three years, and is usually 12 months for “warlike operations”. This maximum duration is calculated by combining the current service of a call-out order under sections 52 or 54 with any relevant service in aggregate. “Relevant service” means any permanent service within the six years or three years immediately preceding a reservist’s current service under a call-out order.
These clauses allow the Secretary of State to disapply those limits in extremis, allowing us to call out our reservists—this will apply mainly to the Volunteer Reserve—more often. They will thereby ensure that we have access to a full range of key skills, from cyber to logistics, in the event of a transition to conflict and war.
Clause 33 makes five important changes in relation to recall to service, and it goes further to try to simplify the process I talked about previously. First, this provision introduces recall liability for former volunteer reservists of other ranks. Currently, only former volunteer reservist officers and former regulars of any rank have recall liability.
Secondly, this provision will increase the age limit for recall for other ranks from 55 to 65. This will allow us to continue to access key trade groups, such as cyber and medical, where former members of the regulars are still using these skills in their civilian lives well beyond the age of 55.
Thirdly, the recall liability for Royal Navy and Royal Marines personnel of other ranks will move from six years following discharge to 18 years; again, I am talking about the difference between terms. This will ensure consistency with the Army and the RAF, and put everyone on an equal footing.
The fourth change, via proposed new section 69A of the Reserve Forces Act 1996, will provide an ability to recall certain individuals when warlike preparations are in progress. It will create a new power to make a recall order for this purpose. “Warlike preparations” means that we will be able to recall someone sooner than is the case presently, because the current threshold for being able to recall people—when there is a great danger, a national emergency or an attack on the United Kingdom—may be too late in a modern transition-to-war scenario. The relevant roles could include roles such as logistics preparations, planning and specialist capabilities. This measure brings those subject to recall in line with the call-out provisions of the Volunteer Reserve and ex-regular reserve.
The fifth change in clause 33 enables the disapplication of aggregate service under a recall order made under the existing section 68 and proposed new section 69A of the Reserve Forces Act, mirroring the approach taken by clause 32. Clause 34 makes consequential amendments following the changes made by clauses 32 and 33.
Clause 35 and schedule 5 introduce two new transitional classes to manage how the new liabilities apply to existing and former personnel. It is important to note that to ensure defence is able to access the right skills in its reserve, while also maintaining its commitments to those who have left, the MOD will introduce these measures via the following method. Unless individuals opt out, they will affect every member of the Regular Reserve and Volunteer Reserve who is in service when these provisions of the Bill come into force.
Around 17,000 people leave the regular and reserve forces every year—I said, 15,000 earlier, but this number includes the reserves—of which the vast majority will now have some form of liability. Current ex-regular members of the reserve forces and those still subject to recall under part VII of the Reserve Forces Act—or those who will otherwise have recall liability solely as a result of these changes—will be able to opt in to the new system should they wish to do so. We are currently analysing how many people this might affect. That is an opt-in process if someone has left.
It should be noted that the fitness or medical criteria applied to these individuals will be assessed on a case-by-case basis. A large proportion of individuals in the Strategic Reserve are in their 30s or early 40s and therefore may well still be medically fit for a large number of roles. In addition, the changing nature of modern defence also means that there are valuable roles, such as cyber and operating uncrewed aerial systems, that do not require the same medical and fitness standards as roles such as infantry or aircrew. In reality, the provisions will enable defence to access more of the right people with the skills and experience it needs at times of need.
Mr Francois
Does the Department have at least a working estimate of how many people it thinks will opt in to that liability, bearing in mind that they cannot be recalled otherwise? What is the planning assumption within the MOD?
Al Carns
We do not have an estimate of how many people will opt in, and I think that would be very difficult to gauge. First, a lot of those individuals already have a liability, because they may be on 18 years already—some will be on six or four years, and some will be officers. To gauge how many people are already in and how many people are going to opt in is very difficult. I would like to think that a lot will opt in, but if they do not, we already have the existing Strategic Reserve, which is at circa 95,000, and the number starts flowing as soon as the Bill comes into force, when everyone who leaves will have 18 years. The number of people who are serving who opt out will also be an interesting reflection, and something to analyse after the event.
Clause 36 corrects an anomaly in the existing legislation. Under section 96 of the Reserve Forces Act, failure to attend for service on call-out or recall is an offence of desertion or absence without leave. That is applicable to members of a reserve force as well as persons liable to recall. However, under section 98, there is no punishment for this offence for those with recall liability as there is for members of a reserve force. That produces an unintended anomaly: an offence is created without a penalty. The clause therefore removes that anomaly and ensures that legislation clearly sets out the possible consequences for an offence of failure to respond to a recall order.
To sum up, the measures will help to maximise the number of personnel available to defence and will modernise the Reserve Forces Act. The measures align with the direction provided by the strategic defence review by allowing for a whole of defence approach, re-energising the relationship with the Strategic Reserve, and increasing our readiness for war. I will speak to the amendments in this group in my closing remarks.
Mr Francois
I will speak to amendments 20 to 24. As they have been grouped together in the largest individual group to be debated today, I will take them in turn, with a few brief remarks on each amendment.
I begin by addressing amendment 20 and consequential amendment 21. The essence of the amendments is to further increase the maximum age of service in the reserve forces from 55 to 65, as currently proposed in the Bill, to a higher level of 67. That would mean having a maximum age limit in line with the normal male retirement age in civilian life. The Opposition appreciate the sense of increasing the maximum age for service in the armed forces from 55 to 65—for the record, that would include me, and I will opt in now.
In his evidence, the Minister provided some practical examples of highly skilled personnel, such as highly experienced medics or air traffic controllers, who do not necessarily need to be as physically fit as, say, a 21-year-old infantryman to make an important contribution to defence. The point of the amendments is to ask a simple question: if that argument holds good at 65, does it not still hold good at 67, the age at which most people can draw a state pension in civilian life if they are male? If someone is a skilled surgeon in the Royal Army Medical Corps at age 65, would they not be equally skilled just two years later? Would those two additional years in their mid-60s represent significant skill fade in their ability to give medical aid?
I hope the Minister can see why the Opposition have tabled these straightforward amendments to provoke a debate on the proposed age limit and the rationale for it. I look forward to hearing what he has to say on them.
The essence of Opposition amendment 22 is to expand from 12 to 18 months the maximum allowable period for a recall order under the Bill. The rationale is that history shows that in a national emergency, including a peer-on-peer conflict, the war is not always over by Christmas. It is therefore not inconceivable that people who are mobilised for reserve service for up to a year might find themselves required to fight on the frontline for longer.
In making this argument, I pray in aid the practical experience from Ukraine, where service personnel have been fighting on the frontline for years, some with relatively limited leave over the whole period. I visited Ukraine with UK Friends of Ukraine only a few weeks ago, and the Minister told the Committee on Tuesday that he had only recently returned from a trip to that country—again, time spent on reconnaissance is seldom wasted. It hardly needs saying, but I am sure that all Members and parties represented on the Committee will want to join me in expressing our determination to support the Ukrainians, for as long as it takes, in facing down Russia’s illegal and barbaric invasion of their country.
A point made very powerfully to our delegation during our visit to Odesa, Chornobyl and Kyiv was that many in the west believe or perceive that Ukraine’s war with Russia has been going on for four years, from the date of the so-called full-scale invasion in February 2022, but in fact the Ukrainians are keen to point out that the war really began in 2014, or arguably even earlier, with the Russian occupation of Crimea in the south of the country and the occupation of significant portions of the Donbas in the east. In other words, Ukraine has been at war with Russia not for four years, but for 12. To put that into context, it is longer than the first and second world wars combined.
It is immensely to the Ukrainians’ credit that they have continued to actively resist their larger and stronger neighbour to the east. The Ukrainians are fighting for western values of freedom and democracy, and they deserve our enduring support. Moreover, the Speaker of the Rada, who is a larger-than-life man in a whole range of respects, gave us a stark warning while we were there: “If we fall, you and your friends will be next.”
Given all that, and bearing in mind the duration of the first and second world wars and of other conflicts such as those in Korea, Iraq and Afghanistan, it might make sense to allow a recall order to last longer than a year should circumstances demand it at the time. We have tabled amendment 22 accordingly.
The essence of Opposition amendment 23 is to allow persons undertaking civilian work that the Secretary of State deems vital for defence purposes to be exempt from a recall order under proposed new section 69A of the Reserve Forces Act.
This is by no means a new idea. There is an old saying in politics that there is nothing new under the sun, and this is not new either. For instance, during the second world war, many people who were eligible for military service by virtue of their age were nevertheless exempted from call-up because they were working in so-called reserved occupations—in other words, a field of civilian endeavour that was considered vital to the war effort.
Ian Roome (North Devon) (LD)
It is a pleasure to serve under your chairmanship, Mr Efford.
Amendment 1 would introduce an exemption from recall to former service personnel who have been discharged due to physical or mental health reasons, to ensure that, even as the Bill seeks to make it easier to recall reservists in times of urgent need, those with long-term injuries or other serious medical conditions can be automatically screened out. Currently, clause 33 updates section 65 of the Reserve Forces Act to alter the terms under which a former serviceperson can be recalled to include reserves, specifying time periods in relation to re-enlistment and tidying up certain terminology.
We feel that section 65(2) should specify that, in addition to the recall provision not applying to anybody over 65 or beyond 18 years after discharge, the exclusion should recognise a medical exemption as standard procedure. That would apply to a medical discharge from either the regular or the reserve forces, closing off the possibility that an individual who might otherwise be medically exempted would be targeted for recall because of their previous service.
The mental health element is particularly significant, given the well-documented prevalence of conditions such as PTSD among veterans, at nearly double the rate of the adult population. This amendment would avoid doing harm to vulnerable individuals, as well as removing the need for the armed forces to go through the process of ruling someone not fit for service a second time.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
It is a pleasure to serve under your chairmanship, Mr Efford. Before I start, I should probably put it on record that I am on the RARO—Regular Army Reserve of Officers—list as a former Regular Army officer.
I joined my right hon. Friend the Member for Rayleigh and Wickford on the delegation to Ukraine, which was put together by UK Friends of Ukraine and during which we had some very interesting conversations, as he said, about the ability to mobilise reserve forces at a time of pressing threats.
I want to speak very briefly—I am sure other Members will be pleased that my contribution will be brief—on amendments 20 to 24. I will start with amendments 20 and 21, with amendment 21 being consequential on amendment 20. These appear to be sensible technical amendments that would bring the Bill in line with the civilian world. In the light of the facts that the retirement age is likely to be pushed forward as people are living longer, that we need to have a more flexible and resilient reserve force, and that the nature of warfare has changed, with many more technical roles, it seems sensible to increase the age of liability to 67.
On amendment 22, my right hon. Friend set out very clearly the growing threats. It is a daily occurrence for us in this place to be talking about the increasing and ongoing threats facing us across the world. In those circumstances, it seems wise to extend the duration of a recall order from 12 months to 18 months. That does not mean it would have to go up to the 18-month point, but it would provide more flex and resilience in the system.
Amendment 23, again, reflects the realities of life. Many individuals who have served in uniform go into roles that are vital for our defence, albeit are no longer required still to wear the uniform of His Majesty. In those circumstances, to lose their skillset by automatically requiring them to be recalled from those reserved occupations seems counterproductive to the aims we should be seeking to achieve.
Finally, amendment 24 recognises the reality of the situation we live in. We need more flexibility to respond with agility and speed to changing circumstances. Therefore, halving the notice period for recall from 180 days to 90 would seem a sensible and prudent approach.
I promised Members that my contribution would be short this time, and I have delivered on that promise.
David Reed
Given that my colleagues have very ably gone through amendments 21 to 24, I will just comment on amendment 20 before handing over to the Minister.
Amendment 20 would increase the maximum age for service in the reserve forces from 65 to 67, which is important in bringing the reserves in line with the age of retirement, which now sits at 67. Parliament has decided that is the threshold at which the working life of a British citizen typically ends, and it makes no obvious sense to retire reservists two years before the age at which we expect the rest of the working population to stop. As the Minister and other colleagues have said, the knowledge of a cyber specialist, a military medic or a logistics officer does not expire on their 65th birthday.
We are legislating at a moment when the security environment is more dangerous than at any point since the cold war, if not world war two. War has broken out across the European continent, and there are wars in the middle east and across Africa. Technological change is speeding everything up, and climate change is increasing volatility. The threats that we face, whether hybrid, cyber or conventional, are growing in scale and sophistication. The Armed Forces Minister himself, in introducing the Bill’s Strategic Reserve measures, said:
“we live in a…fragile environment”,
and the United Kingdom needs
“to be able to recall experienced people faster and more effectively”
should the country need to prepare for war. That is an honest assessment of where we are. If we accept that framing, as I think we should, the case for retaining every capable, willing and medically fit reservist for as long as possible follows directly from it. We should not be narrowing our pool of trained people by two years for no compelling reason.
The strategic defence review is explicit that we need to grow the reserves by 20%, but that ambition runs directly against the policy of letting experienced people go earlier than we need to. At a Royal United Services Institute event in December 2024, General Gary Munch described the current approach as “decommissioning” personnel—the same word that we use for retiring ships. He was making a pointed observation: we would not withdraw a capable platform from service simply because it has accumulated years, and we should apply the same logic to people. The amendment would not impose an obligation on anyone; it would remove an arbitrary ceiling. That is a proportionate ask.
Al Carns
I thank the hon. Members for North Devon and for Tunbridge Wells for tabling amendment 1. We owe a debt of gratitude to those who serve, and of course we have an ongoing duty of care to those who have given service to their country but can no longer serve due to medical issues, especially if those issues were a result of their service. Statistics show that there were about 1,900 people medically discharged in financial year 2024-25—700 of those were for musculoskeletal issues, and 800 were for mental or behavioural issues.
Some of those individuals who have left—it could be for an Achilles injury, a break or a back problem—still wanted to serve, but they could not serve in their current role because of the medical requirements. That is not to say that they could not serve in another role at a later date when they had healed or recovered. Our current policies exclude those who have been discharged for a range of conditions from further service, but it would be wrong to exclude all personnel from further service permanently through a change in the law. Keeping these rules set out in policy and secondary legislation gives us a degree of flexibility. Should circumstances change and we require more of our ex-regulars—for example, in a war-like situation—we could give people who want to serve the opportunity to do so.
I understand the concerns of the hon. Member for North Devon about the effect that further service might have on those service personnel. I assure the Committee that any recall into service will be done on a case-by-case basis. We will consider the serviceperson’s service record, including their medical status. Indeed, there will also be regulars who left the service fully medically fit but who, in the intervening years, have unfortunately become unwell and therefore may not be able to undertake further employment with the armed services. Those cases would also have to be considered.
I thank the right hon. Member for Rayleigh and Wickford for his views on the Bill, and I acknowledge his concerns about the flexibility and readiness of our reserves. On amendments 20 and 21, we are increasing the age limit for recall liability to 65 for other ranks across all three services. That will enable defence to draw on the valuable skills and experience provided by former service personnel aged 55 and above. Recently retired non-officer personnel in the 55-plus age range who have knowledge, skills and experience from a full career provide a useful latent capability to draw upon when needed.
Although I acknowledge the right hon. Gentleman’s proposal to raise the age to 67, which will shortly become the state pension age, my view is that it would not be the most prudent way forward. Recall liability in the reserves is a significant responsibility, because it demands that individuals balance their civilian lives with readiness to serve their country at potentially short notice, reflecting a profound personal and civic duty.
Further increases to the liability from 65 to 67 would be an imposition, given that the measure already addresses the gap in capability. We estimate that the proposed increase in liability will affect only 1.1% of personnel between the ages of 55 and 65 who left the regular forces during the financial year 2024-25. There were no UK regular forces or other ranks personnel who left during that financial year between the ages of 65 and 67.
It is worth noting that some individuals, depending on their service, can still serve up to 67. Therefore, the amendment would not achieve its intended effect, as it concerns a relatively small group of individuals already accounted for within the measure. Indeed, it undermines the balance between the responsibilities defence places on our serving personnel and the operational demands we face.
Mr Francois
The Minister just said that some categories of personnel could in certain circumstances continue to serve beyond 65 to 67, which is in line with the spirit of what the Opposition are proposing. Can he explain to the Committee who those people are?
Al Carns
Through continuation policies, and in some cases using over-age extension mechanisms, people can continue to serve, but changing 55 to 65 is about the liability, not necessarily the service, and capturing the most people in the liability process.
Turning to amendment 22, while I recognise the right hon. Member’s proposal to extend the duration of a recall order from 12 to 18 months, I believe that this would not achieve the effect he desires. The changes in the Bill as drafted will allow us to extend the duration of a call-out order—we already have that power. The Bill’s provisions ensure that defence has the necessary powers to extend both call-out and recall periods up to two years when required, rendering any additional amendment to extend the period to 18 months in respect of recall unnecessary.
On amendment 23, section 73 of the Reserve Forces Act already provides powers of exemption to recall. The existing provision allows the Defence Council, by regulations, to exempt individuals from, or relax, recall liability. Working across Government, defence requires the flexibility to determine critical roles in a warlike scenario. As a result, additional codification in primary legislation would restrict defence’s ability to maintain the necessary flexibility to safeguard critical roles.
The Government are doing that in other ways. Last month, we launched the pan-defence skills framework, a whole-force initiative designed to strengthen defence capability through a unified, transparent focus on skills, which will allow us to identify and manage skills throughout the whole of defence. We recognise that our strength is not just in our equipment, but in the expertise of our people. We also maintain dialogue with our colleagues in other Government Departments, as well as the wider industry, to ensure that we understand the effect of any large-scale mobilisation on critical industries such as the NHS or the defence sector.
Amendment 24 aims to increase the readiness requirement for reservists in Army Reserve group A from 180 days to 90 days. I take the point about getting the ground truth; I will take that away and see where we are from an internal perspective by speaking to the Department. I reassure the Committee that all Army readiness levels are subject to annual review and are set through the Army operating order, which aligns with defence-directed commitments within the framework of the armed forces plan. To fulfil its obligations effectively, the Army must review and adjust readiness levels across all elements of its force, responding to the evolving demands of the nation.
It is essential that defence maintains the necessary flexibility to respond swiftly and appropriately to changing threat levels. Embedding such provisions in primary legislation would impose too rigid constraints, creating an obstacle rather than a suitable mechanism for setting and reviewing readiness levels. I am committed to taking the point away and having a look. I hope I have provided the necessary reassurance, and on those grounds, I hope that the amendments will not be pressed to a vote.
Question put and agreed to.
Clause 32 accordingly ordered to stand part of the Bill.
Mr Francois
On a point of order, Mr Efford. We will not press amendments 20 to 23. I am grateful that the Minister agreed to take amendment 24 away—we note that—but because the suggestion came from within the ranks, as it were, we will press it to a vote.
Clause 33
Recall for service
Amendment proposed: 24, in clause 33, page 54, line 43, at end insert—
“69C Notice periods for recall
(1) Those reservists in Army Reserve Group A, or its equivalents, shall, following the coming into force of the Armed Forces Act 2026, have their standard notice reduced from readiness category R9 (180 days) to R8 (90 days)
(2) For the purposes of this section, ‘Army Reserve Group A’ has the meaning defined in the Reserve Land Forces Regulations 2026.”—(Mr Francois.)
This amendment would increase the readiness requirement for reservists in Army Reserve Group A from 180 days to 90 days.
Question put, That the amendment be made.
Mr Francois
I beg to move amendment 25, in clause 37, page 56, line 35, at end insert—
“(4) The Secretary of State must create a plan for ensuring and monitoring the efficiency of the RFCA in carrying out its duties and its relationship with local Reserve and Cadet units.
(5) The plan in subsection (4) must be laid before each House of Parliament within six months of the passage of this Act.”
This amendment requires the Secretary of State to create a plan ensuring and monitoring the efficiency of the RFCA in carrying out its duties and its relationship with local Reserve and Cadet units.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Schedule 6.
Mr Francois
The essence of the amendment, tabled in my name and that of my hon. Friends, is to place a requirement on the Secretary of State to create a plan to ensure and monitor the efficiency of the reserve forces and cadets associations in carrying out their duties and the relationship with local reserve and cadet units in their charge. I place formally on the record my thanks to the RFCAs as part of our overall national defence effort, and the appreciation of my party for the highly important role they carry out. Many people who serve on the RFCAs at national and regional level have tremendous experience of military life, often across each of the three services in the case of a regional RFCA. The fact that they wish to continue to make a contribution to defence, in many cases after their regular career is over, is to be welcomed and commended.
Nevertheless, just occasionally, I come across examples of a perhaps overly bureaucratic approach by some RFCA staff, who are no doubt well meaning, but whose actions tend—perhaps inadvertently—to stifle innovation and creative thinking. I will illustrate that point to the Minister with two specific personal examples, one from some years ago and the other more contemporary. The first example relates to attempts to create new cadet units in my constituency.
While I served as a Minister in the MOD more than a decade ago, I think it is fair to say that we had a successful programme to expand the number of cadet units in state secondary schools. We set a target of creating some 500 new cadet units at secondary level, specifically including some educational settings and some geographical areas that had perhaps not benefited from cadet units hitherto. We deliberately tried to set up some of those school cadet units in what might be termed quite tough inner-city areas.
That went pretty well; we hit the target. That meant that thousands of young people at school had the opportunity to benefit from everything the cadet movement offers in terms of teaching teamwork, discipline, determination in adversity and all the other military virtues that they were therefore exposed to at a relatively young age. As the Minister knows, we do not have a cadet movement specifically to recruit people into the adult armed forces. Nevertheless, if many of those people, having experienced a taste of the military ethos, wish to continue their military involvement afterwards, that is all well and good, both for them and for their country.
Therefore, on a personal level, I have always been a great believer in the cadet movement, and I am proud to say that I have four cadet units in my constituency: 1476 (Rayleigh) Squadron Air Training Corps and its sister squadron, 1474 (Wickford), and detachments of the Essex Army Cadet Force in both Rayleigh and Wickford. I have also, over the past year at least, made a point of attending both the Army cadets’ and the Air cadets’ annual awards ceremonies in Essex.
After I left the MOD, and after we had hit the target of 500 new cadet units in schools, I was involved in conversations with the headteachers of two secondary schools in my constituency, who were also very interested in the programme but had not been part of the original cohort of 500. In essence, they were both keen to set up cadet units of their own. There was an original barrier to entry of a down payment of something like £17,000 by any school that wished to participate. Given the pressure on school budgets, even a decade or so ago, that was a prohibitive barrier to entry for many schools. Nevertheless, I am pleased to say that that requirement was eventually dropped, and, at that point, I had two headteachers who were very keen to go ahead.
I attempted on numerous occasions to communicate that to the East Anglia RFCA, but I regret to inform the Committee that I got absolutely nowhere. Multiple attempts to raise this were met with a very lukewarm response; I was constantly referred to different people within the organisation, and then ultimately to one non-commissioned officer who appeared to have been given responsibility for new cadet units but, for various reasons, seemed very hard to reach.
In the end, I am sad to report that the two headteachers in question lost interest. As one of them put it to me at the time, “Well, if they’re not interested in my school, I don’t see why I should still be interested in one of their cadet units.” That was a shame. I believe it was a missed opportunity—in fact, two. I raise that in the hope that if, in future, any hon. Member wants to help foster the creation of a cadet unit at a school in their constituency, they might have a more positive experience than I did.
Perhaps, in responding to this amendment, the Minister could tell us where we are in terms of school cadet units. I think it would be handy if he could place it on the record that the Government would still like to see new cadet units in schools, and, very briefly, how hon. Members can go about encouraging that. Maybe I was just unlucky, but it would be a shame if we could not facilitate setting up new units in schools.
Secondly—this is a more contemporary example—I have the honour and privilege of serving as the honorary president of 1476 (Rayleigh) Squadron. The Minister might recall that I alluded to an issue about the potential expansion of the squadron during one of the earlier evidence sessions. I was then invited to write to the head of the RFCA about that. I am grateful for that hint, and I still intend to do so following this debate.
For the record, 1476 (Rayleigh) Squadron has won the Lees trophy as the champion squadron in the Essex wing two years running. A military type might well say, “Well, they must be doing something right then.” Suffice it to say, having declared my interest as the squadron president, I am slightly dismayed that attempts to refurbish and expand the facilities of 1476’s admittedly ageing base in Rayleigh have often fallen foul of what one might call bureaucracy at the RFCA level, even though a national house builder was offering to build a brand-new extension to the squadron base at Connaught Road as a gesture of good will and at absolutely no cost to the taxpayer.
I am sure that we have all seen these things in our constituencies: a company offers to get together a group of volunteers at a weekend and do something up. The company was going to do that, and it also offered to build what was basically, in pub English, a large shed at the back of the unit, as the squadron has a particularly strong interest in engineering studies and needed a shed in which to store its equipment and conduct lessons. That was all to the good.
David Reed
To back up the shadow Minister’s point, I was an air cadet for a number of years—[Interruption.] I know he is laughing at that, but in my experience, it was not about recruitment or a pathway into the armed forces. It was really powerful to have, as a youngster, the opportunity to do adventure training, shooting and flying, and to have a link with the military. As we ask citizens across the UK for more taxes to increase armed forces spend, our young people having that link to the military will be important, so I completely agree with my right hon. Friend.
Mr Francois
I appreciate my hon. Friend’s comments. He proves that the issue is not all about recruitment, as he was in the Air Training Corps but joined the Royal Marines. I thank him for his tri-service.
Luke Akehurst (North Durham) (Lab)
I hope that the right hon. Gentleman will accept that there is bipartisan support for extending cadet forces into the state sector, which was his first point. He mentioned cadet forces in state schools in his constituency, and the combined cadet force at Park View comprehensive school in Chester-le-Street also does excellent work. I hope he accepts that there is a community of interest in achieving that aim. I am not aware of the obstacles he spoke about around the RFCA, but I am interested by his points.
Mr Francois
I am grateful to the hon. Gentleman. On the point about CCFs, part of the Department’s thinking at the time was that a lot of young people, particularly in the independent sector, benefited from the cadet experience by joining combined cadet force units in independent schools, which, as the hon. Gentleman rightly pointed out, exist in some state schools too. We were trying to give more people in the state sector the opportunity to benefit from a similar experience, so we set the ambitious target of 500 units in state schools, which I am pleased to say we hit.
Returning briefly to 1476, in the end, I think it has all been a misunderstanding, and it could be easily resolved with a measure of good will on both sides. I hope the Minister understands the spirit in which I, as the president of the squadron, have raised the issue. If he can personally do anything to help, it would be greatly appreciated. With that, I rest my case.
Al Carns
I thank the right hon. Member for his views on the Bill, and I acknowledge his concerns about reserve forces and cadets associations. The Government fully recognise the vital contribution that they currently play in supporting reservist cadets and in defence engagement across the entire United Kingdom, particularly through their close relationships with local communities and employers. I had never heard of the RFCA before I left the military, but after visiting it I can see that it is a fantastic, dedicated and focused group of people who engage across society and have an amazing network that is useful not just in peacetime, but on the road to crisis and indeed during conflict as well.
However, I believe this amendment is not necessary. The Reserve Forces and Cadets Association will operate within a robust governance and assurance framework. Its performance, effectiveness and value for money will be subject to regulatory oversight through existing accountability arrangements, including formal assurance processes, reporting against key performance indicators, and ongoing engagement with the Ministry of Defence.
Mandating a statutory plan to be laid before Parliament would risk duplicating existing mechanisms. That would add bureaucracy without delivering meaningful additional oversight or improvement. The Department remains committed to continuous improvement in how the Reserve Forces and Cadets Association will operate and work with reserve and cadet units, and we will continue to strengthen those arrangements through existing flexible governance structures rather than through new statutory requirements.
Mr Francois
That being the case, could the Minister place on the record—I hope he will say yes—that it remains the policy of this Government to create new cadet units within educational settings where that is appropriate, and where the headteacher is onside?
Al Carns
I place on record our SDR commitment to grow the cadet forces by 30%, which should equate to around 40,000 cadets and 8,000 adult volunteers, although those numbers will ebb and flow. The benefits of the cadet forces are not lost on me; the University of Northampton report is a prime example, and I recommend it to anyone who has a cadet force in their constituency. It demonstrates the benefits of being in the cadet forces, ranging from education and skills to mental and physical resilience. Indeed, people’s life chances go through the roof when they join the cadet forces.
The right hon. Gentleman mentioned the specific issue of infrastructure, and I would be happy to take that offline and raise it with the Minister for Veterans and People. If people are willing to help, and if there is a way to get better facilities for cadet forces, we will double down to deliver them.
Clause 37 creates a new public body to deliver vital support to the reserve forces and cadet communities. For more than a century, the regional reserve forces and cadets associations have supported defence through the management of the volunteer estate, the administration of reserve activity, and engagement with employers and communities. I reiterate my absolute support for the reserve forces and cadets associations, and for all the volunteers who come forward to help those organisations—they do a sterling job. Their contribution is significant and valued across the defence sector, industry and broader society.
The structure of the reserve forces and cadets associations, however, still reflects that of the county associations set up in 1908, which does not meet today’s public sector expectations for governance, assurance or financial management. Multiple independent reviews, including the 2019 Sullivan review and 2025 reports by the National Audit Office and the Public Accounts Committee, have highlighted structural weaknesses in the current regional associations and recommended reform.
The clause implements those recommendations by creating a single national RFCA as a non-departmental public body, which ensures compliance with central Government governance standards. The clause provides for Defence Council appointments of an independent chair and non-executive board members; a clear reporting and audit framework consistent with the principles of “Managing Public Money”; and the transfer of assets, property and personnel via statutory schemes to ensure continuity of delivery.
That reform ensures that the NDPB will maintain the local expertise and volunteer contribution that the existing RFCAs provide by moving them to the new regional councils, which will be committees of the new NDPB. For those reasons, I hope this provides the necessary reassurance and ask the right hon. Member to withdraw his amendment. I commend clause 37 to the Committee.
Mr Francois
That is a very reasonable reply from the Minister. I thank him for his offer to look into this. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 37 ordered to stand part of the Bill.
Clause 38
Parliamentary control of air forces numbers
Question proposed, That the clause stand part of the Bill.
Al Carns
Clauses 38 and 39 remove the statutory requirements to seek approval for the maximum numbers in each of the regular services and each of the reserve services, and also the maximum number of reservists who may be used for certain commitments.
In an age in which we will increasingly need to call on our reservists at pace and adapt our force make-up to meet a changing threat, having statutory maximum limits—especially at such a granular level for reservists—can place operational constraints on the armed forces. However, we recognise the importance of parliamentary oversight of the armed forces, and that is why we continue to request a maximum for the overall number of the active force, mainly the regular and volunteer reserves for each of the three services, in Parliament through the votes A process.
The quarterly personnel statistics that contain detailed information on the strength of all our armed forces—including all the types reported on in votes A—will continue to be published, allowing Members to hold Ministers to account for the size of the armed forces. The simplification will allow defence to maintain its ability to flex its force to meet operational needs, while allowing Parliament to retain its historical control over the armed forces. I commend clauses 38 and 39 to the Committee.
Question put and agreed to.
Clause 38 accordingly ordered to stand part of the Bill.
Clause 39 ordered to stand part of the Bill.
Clause 40
Prohibition on sentences of death
Question proposed, That the clause stand part of the Bill.
Al Carns
The clause amends section 2(4) of the Visiting Forces Act 1952 to make it explicit that a visiting force’s service court cannot impose a sentence of capital punishment while conducting proceedings in the United Kingdom. Under existing legislation, a scenario could potentially arise where a NATO sending state requests the transfer of one of its personnel into its custody in the UK and then conducts service court proceedings that may result in the death penalty. That could risk conflicting with the UK’s obligations under the European convention on human rights. The clause removes that possibility where capital punishment could be a potential outcome. By doing so, it ensures that UK practice remains fully aligned with long standing domestic and international commitments against the death penalty.
Clause 41 updates the provisions of the Visiting Forces Act on how the UK determines whether a visiting force member was on or off duty when an alleged offence occurred. At present, the Act does not provide for direct state-to-state negotiation, as envisaged under the NATO status of forces agreement 1951, if there is disagreement about whether a service member was on duty. The clause empowers the Secretary of State to make a conclusive factual determination on the narrow issue of whether the individual was acting in the course of their duty at the time of the alleged offence. In reaching that determination, the Secretary of State must consider representations from the visiting force and the relevant UK prosecuting authority. The clause fulfils the NATO status of forces agreement obligation to engage directly with a sending state in cases of dispute, ensuring consistent and NATO-aligned handling of duty status questions. I therefore commend clauses 40 and 41 to the Committee.
Mr Francois
Briefly, I want to make just one point about visiting forces. As the Minister knows, in recent years certain high-profile cases have included people from visiting forces based in the United Kingdom. In one case in particular, a young boy was tragically killed in a road accident by someone who was alleged to have been driving irresponsibly—a citizen of the United States. For legal reasons, I will say no more on that particular case, but I can see members of the Committee nodding in recognition of what I am talking about.
All I ask is that the Minister places on the record that we welcome the presence of those who come here as our allies to help protect us, but none the less make it plain to them that while they are in the United Kingdom, they should abide by our laws in all respects, in the same way that we ask our own citizens to. For reasons that I hope the Minister appreciates, I would like it if he could make that reassurance plain this afternoon.
Al Carns
I place on the record again everything that I have just said, which of course was about the NATO status of forces agreement and the changes that we want to make to ensure that UK law is reinforced here in this country, while also establishing a clear and precise relationship with individuals who come here under the status of forces agreement.
Question put and agreed to.
Clause 40 accordingly ordered to stand part of the Bill.
Clause 41 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Christian Wakeford.)