Courts and Tribunals Bill (Ninth sitting)
Thursday 23rd April 2026
(1 day, 11 hours ago)
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The Committee divided: - Ayes: 9 / Noes: 5 - Question accordingly agreed to.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 5 - Question accordingly agreed to.
The Chair
We are now sitting in public and the proceedings are being broadcast. Before we begin, I remind Members to switch electronic devices to silent, please. Tea and coffee are not allowed during proceedings, but there is plenty of water—blue is flat and silver fizzy.
I remind Members that amendments are voted on at the point at which they are found in the Bill, so any Division on amendment 37 to clause 26 will come later.
Clause 7
Appeals from magistrates’ courts
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 63, in schedule 2, page 38, line 33, leave out from “only if” to the end of line 35 and insert
“the Crown Court considers that—
(a) the appeal has a realistic prospect of success, or
(b) there is another compelling reason for the appeal to be heard.”
This amendment would broaden the test for granting permission to appeal from magistrates’ courts, so that appeals may proceed where they have a realistic prospect of success or where there is another compelling reason for the appeal to be heard.
Amendment 64, in schedule 2, page 38, line 33, after “appeal” insert “against sentence”.
This amendment is consequential upon Amendment 66.
Amendment 65, in schedule 2, page 39, line 1, after “(3)” insert “and (5)”.
This amendment is consequential upon Amendment 66.
Amendment 66, in schedule 2, page 39, line 10, at end insert—
“(5) There is a right to renew an application for permission to appeal orally.
(6) Grounds for appeal may raise issues of procedure and fact arising in the trial as well as law.”
This amendment ensures a right to appeal orally, and provides that grounds for appeal include procedure and fact, as well as points of law.
Amendment 54, in schedule 2, page 39, line 16, leave out from “if” to end of line 18 and insert
“the defendant has made one.”
This amendment would require the Crown Court to allow an appeal if the defendant makes one.
Amendment 55, in schedule 2, page 42, line 15, leave out “magistrates’ court” and insert
“jury in the Crown Court”.
This amendment would allow the Crown Court to order a retrial by jury in the event that it allows an appeal against a conviction or sentence in the magistrates court.
Amendment 56, in schedule 2, page 47, line 13, leave out “magistrates’ court” and insert
“jury in the Crown Court”.
This amendment would allow the Crown Court to order a retrial by jury in the event that it allows an appeal against a conviction or sentence in the magistrates court.
Amendment 57, in schedule 2, page 49, line 36, leave out from “Court” to end of line 39 and insert
“must allow an appeal under section 108 if the defendant makes one.”
This amendment would remove the provision limiting appeals to specific grounds and instead ensure the Crown Court allows appeals if one is made.
Schedule 2.
Amendment 37, in clause 26, page 35, line 19, at end insert—
“(3A) The Lord Chancellor may not make a statutory instrument containing regulations under subsection (3) bringing section 7 into force until he has undertaken an assessment of the rate of upheld appeals on convictions and sentences handed down in the magistrates’ court in the previous two years.”
This amendment would prevent the restriction of right of appeal against magistrates court decisions unless the rate of successful appeals from the magistrates courts has been below 10% in the previous two years.
The Minister for Courts and Legal Services (Sarah Sackman)
It is a pleasure to see you in your place, Dr Huq. I thank the hon. Members for Blackburn (Mr Hussain) and for Bexhill and Battle, and my hon. Friend the Member for York Central (Rachael Maskell), for tabling the amendments in this group.
I will come to the amendments, but first I will take the opportunity to set out the rationale for the clause and schedule 2. The existing position for criminal appeals from the magistrates court is this: when an appellant wishes to appeal a conviction or sentence in the magistrates courts, they proceed to a full rehearing of their case in the Crown court. They do not have to state why they wish to challenge their conviction or sentence, nor produce any grounds for appeal. They simply lodge an appeal and obtain a full rehearing in the Crown court.
In many cases, there is no justifiable reason for that, yet the impact on victims and witnesses, who are often required to go through the ordeal of a second trial, in the Crown court, can be significant. Indeed, we heard from victims in the Committee’s evidence sessions that going through a trial was so traumatic that they would have probably dropped out if the case had been appealed to the Crown court.
Part of the evidence that persuaded Sir Brian Leveson to make recommendations 21 and 22 in his report, in respect of appeals, was that
“many minor sexual assaults that were dealt with in the magistrates courts or the youth courts, which could include rape, almost automatically went to appeal to the Crown court, on the basis that the victim would not turn up the second time and be prepared to go through the whole process again.”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 9, Q11.]
This situation is unique in our criminal justice system. Magistrates courts are the only criminal court in which there is an automatic right to appeal without filter. In every other criminal court, including the Crown court, the appellant must obtain permission to appeal, they must provide their grounds, and the court has the opportunity to review appeal applications to determine whether there are sufficient grounds to warrant reconsideration.
The purpose of the clause and the provisions in schedule 2 is to bring magistrates courts appeals in line with other criminal appeals processes, and thereby reduce the number of unnecessary hearings that progress to the Crown court. That has the dual benefit of reducing the burden of appeals on victims and witnesses, and ensuring a sensible use of court resources, reserving Crown court time for the most serious cases.
Let me be clear on the data. Of all the cases in the magistrates court, which we know can be hundreds of thousands, only 1% get appealed to the Crown court. This to me is indicative of a system that generally commands confidence. I understand the concerns about access to justice, but to be clear, the right to appeal in magistrates courts remains. Defendants will still be able to appeal a conviction or sentence in magistrates courts, but with a straightforward permission stage, as already exists elsewhere, so that appeals with arguable grounds continue to receive a full appeal hearing. Appellants will retain the ability to seek a judicial review of a refusal of permission in the High Court, and applications to the Criminal Cases Review Commission remain possible where there have been alleged miscarriages of justice.
The clause also mandates the recording of trial and sentencing proceedings to support the evidential record for appeals. This is a significant step in making our courts more transparent and open to scrutiny, and it provides an opportunity to go further than in the current criminal procedure rules. The clause is proportionate and targeted. It will filter out unmeritorious, weak applications, helping to increase efficiency across the criminal courts and reduce the burden of appeals, which we know is born by witnesses and victims, while maintaining fairness and access to justice.
Amendment 63 was tabled by the hon. Member for Blackburn; I seek your guidance, Dr Huq, on whether it has actually been moved.
Sarah Sackman
Thank you, Dr Huq. Amendment 63 seeks to broaden the test for allowing an appeal from magistrates courts under the new reforms. The amendment expands the existing test so that permission will be granted where there is some other compelling reason. That is a test used in civil proceedings in the Court of Appeal civil division. There is not equivalent test for appeals in the Court of Appeal criminal division, which is what our new process for appeals in the magistrates courts is based on.
One reason why a court might hear an appeal due to some other compelling reason is to seek an authoritative binding judgment on a particular issue. A Crown court cannot provide a binding decision as to the law on magistrates courts generally, whereas the High Court can. If the appellant wished to appeal for this reason—in other words, in order to seek a binding judgment on a point of law—they could achieve that by using the existing process of appeals by way of case stated to the High Court. In short, we do not think it would be appropriate for there to be appeals to the Crown court in this context.
Instead, we have replicated the existing grounds for appeal in the Court of Appeal criminal division: whether it is reasonably arguable that an appeal will be allowed. An appeal of conviction will be allowed if it is unsafe, which can be the consequence of the incorrect application of the law, procedural irregularities, or the introduction of fresh evidence. An appeal against sentence will be allowed in the same circumstances as in the Court of Appeal: where a sentence is manifestly excessive or otherwise wrong in law or principle. These are well-established tests.
We are committed to ensuring that we create a fair appeals system that provides adequate safeguards for summary justice. In the event that appellants feel an incorrect decision has been made in respect of their application for permission, they have the opportunity to seek a judicial review of that decision to the High Court. I remind the Committee that, as I said earlier, the introduction of recording equipment into magistrates courts to accompany the change in the appeals process will increase the ability to scrutinise the decisions of magistrates courts. I hope I have reassured the Committee of our commitment to a fair and accessible criminal appeals process, and I urge that amendment 63 not be pressed to a Division.
Amendments 64 to 66, tabled by my hon. Friend the Member for York Central, relate to the right to renew an appeal for permission to appear at an oral hearing if the appeal has been refused on the papers. I will deal with these matters sequentially.
The right to renew an application for permission at an oral hearing when it has been refused on the papers does exist in appeals from the Crown court to the Court of Appeal. We decided not to replicate the provision for appeals from the magistrates courts. There will be occasions when an oral hearing may be regarded as necessary in order for a Crown court judge to determine whether to grant permission to appeal. For that reason, we have included a provision in proposed new section 108A of the Magistrates’ Courts Act 1980, so that judges can hold an oral hearing if they feel it is necessary or for the purpose of making a determination more expeditiously.
However, the key is whether an oral hearing is necessary in the context. We are keen to avoid an influx of applications to renew permission to appeal at an oral hearing where that is unnecessary. That is particularly important when we consider the high volume of cases that our magistrates courts already consider, and the higher volume of cases that we anticipate they will be considering after the other reforms in the Bill come into play. The volume of appeals from magistrates courts to the Crown court will therefore be higher, proportionally, than the volume of appeals from the Crown court to the Court of Appeal. If we include provision for appellants to renew an application for permission that has already been refused, we risk creating a higher volume of unnecessary oral hearings than in the Court of Appeal, thereby placing a significant and unnecessary strain on Crown court time.
I understand that the amendment is driven by the desire to ensure that adequate safeguards are built into the process, and I hope my hon. Friend will be reassured that, as I have said, refusal of permission can still be challenged by applying to the High Court for judicial review.
The second part of the amendment provides that the grounds of appeal may be based on issues of procedure and fact arising in the trial, as well as on points of law. I want to reassure my hon. Friend that the grounds for appeal as currently drafted in the Bill capture the points raised in the amendment. An appeal of conviction will be allowed if it is unsafe, which can be the consequence of an incorrect application of law, procedural irregularities or fresh evidence.
Appeals of sentence could also be successful on the basis that the magistrates court has made a mistake as to the facts of the case or made a procedural error, as long as, by virtue of that mistake, the sentence was manifestly excessive or wrong in law or principle. The amendment would not change that position.
For the reasons I have set out, I urge Members not to support amendments 64 to 66. In essence, they are already covered by the Bill.
I thank the hon. Member for Bexhill and Battle for tabling amendments 54 and 57, which would provide that whenever an appeal against conviction or sentence is made from the magistrates court to the Crown court, the appeal must be allowed, irrespective of whether there is any merit in the appeal. I suspect that was not the intention behind the amendments. If I read them in the spirit that I imagine they were tabled, I think they were designed to remove the permission test, rather than indicating to the Court that it should allow all such appeals.
Dr Kieran Mullan (Bexhill and Battle) (Con)
I am grateful to the hon. Member for Wimbledon, who is not in his place, for the advice received in relation to amendment 54, which was drafted with the assistance of the Clerks. The Minister is right that our intention was to unpick the barriers at the permission stage that the Bill introduces. I think her point applies just to the first amendment; the other amendments fit because they are about what happens after a successful appeal and how it might be re-instigated. On that basis, I will not press amendment 54 to a vote. We will table a suitable amendment at a later stage.
Sarah Sackman
I am grateful to the hon. Gentleman for that clarification. I was pretty sure that that was what he must have meant and that it was not his intention to suggest that we should, essentially, allow and uphold all appeals as an automatic right. I understand, though, his intention to debate the merits of the permission test in the Bill.
I should make one point about the consequence anticipated in the amendments, in terms of appeals being directed automatically to a jury trial. To be clear, that is not how appeals currently operate, whereby a judge sitting with magistrates rehears the case on appeal in the Crown court. The effect of the amendments together could mean that we would see large numbers of appeals of conviction being allowed and sent to the Crown court for a retrial by jury, absent any permission test or filter. That could mean, for example, that low-level summary-only offences, such as being drunk and disorderly, are added to the Crown court caseload and, by extension, the backlog, which would only increase the waiting times for the more serious offences, which we want to get on with more expeditiously.
I am grateful for the hon. Gentleman’s correction, but we take issue with not just the effect of the amendment but the fact that it would mean that appeals would go to a jury trial, because that would extend the right to, or access to, a jury trial, which we do not want to encourage in this context. I anticipate that the intention was to expand the grounds for permission, so that instead of applying a test, any application for permission would be allowed. This would essentially remove the permission filter and return us to the status quo, where there is an automatic right to a rehearing on appeal, absent any filter for the merit of an appeal.
Dr Mullan
It is a pleasure to serve under your chairmanship, Dr Huq. Clause 7 and schedule 2 represent a fundamental and troubling departure from the way that our justice system corrects error. As the Minister said, we have tabled a number of amendments, which essentially form two groups. The first group seeks to reconstitute the existing right of appeal, and amendment 37 aims to stop the Government’s proposal until we have a more substantial and better understanding of how to drive the appeal success rate down, which is our primary aim.
As the Minister outlined, at present a defendant convicted in the magistrates court has an automatic right of appeal to the Crown court, where the case will be heard as a full rehearing before a judge and two lay magistrates. The Bill proposes to replace that long-standing framework with a permission-based model, whereby the defendant must first prove that their appeal is reasonably arguable before a single judge, often based only on written papers and transcripts. I rise to oppose that restriction on access to justice. I will argue that, where an appeal is successful, justice is best served by providing the option of a retrial before a jury.
I will reflect on the Minister’s remarks about how our amendments would operate. I always listen very carefully to what she says and, as I will explain, I think there is some merit in some of her points, so we can reflect on those. The Minister has pointed out the difference between the magistrates court and the Crown court, and processes elsewhere, but my contention is that that is not an accident or happenstance; that is by design, because the magistrates court is very different in many other ways from those other elements of the courts. That is why there is a difference there—for very good reason.
Because efficiency must be balanced with accuracy and fairness, the current automatic right of appeal is not simply a source of unnecessary delay; it is a vital check on a part of our system that others have described as being, to some extent, “rough justice”—a forum in which decisions are swift but carry a higher risk of mistake. The evidence—because let us look at the evidence; this is not just what people might say about it—is that the current system is performing a very necessary function. Around 40% to 42% of appeals against convictions from the magistrates court are successful, and roughly 44% to 47% of appeals against sentences are also successful. That is an extremely high rate of successful appeals. These are not marginal or trivial figures; they indicate, I am afraid, that the lower courts are making meaningful errors in nearly half of the cases in which they are challenged.
The Law Commission actually considered this issue in detail. It rejected the proposals that a permission stage should be introduced and highlighted a number of key points in relation to that. On the importance of correcting error, as I have mentioned, it emphasised the critical role that those appeals are playing. It also highlighted the low volume of appeals. The Minister talked about 4% of receipts in relation to one element; I think 1% of the total number of magistrates court cases are being appealed, so that demonstrates that this measure will make a transformative difference to the backlog.
We can talk about receipts, but the other thing to keep in mind is how long the actual appeals take. Although receipts are one way of looking at it—on a numbers basis—that is also distortive, of course, because appeals are much shorter hearings than the ordinary business of the Crown court.
The Law Commission pointed out that it found no meaningful evidence that this process was being abused, even without that permission stage in place. As we have talked about previously in the Bill, legal representatives cannot support an appeal that is completely without merit. As I have said, due to a combination of the low volume of appeals and the shorter hearing times, our contention is that there would be minimal efficiency gains to weigh against this erosion of an existing right.
Actually, the introduction of a permission stage is something that we welcome, but the work that will have to be done to support it, with the introduction of recordings and making available transcripts, will probably—or could—cost significantly more than will be saved. By introducing a permission stage, the Government are creating a multi-stage system that is complicated and potentially more inefficient than the current situation.
We know that many of those facing imprisonable offences in magistrates courts are currently unrepresented. The Bill simultaneously increases sentencing powers in clause 6 while narrowing the ability to challenge those decisions in this clause. The Bar Council has described this as a
“comprehensive rolling back of safeguards”.
An unrepresented defendant, potentially facing up to two years in prison, will now be expected to navigate the practicalities of reviewing transcripts and preparing permission grounds for appeal without professional help.
The legal aid gap means that many defendants who would have qualified for a solicitor and legal aid in the Crown court will be ineligible in the magistrates court due to the different low-income thresholds—£22,325 versus £37,500. Requiring those individuals to purchase costly transcripts just to ask for permission to appeal is a significant barrier that risks entrenching injustice. If the error rate in the magistrates court remains high, restricting access to the remedy is a recipe for uncorrected miscarriages of justice.
I will move on to our amendments about the case for retrial by jury. If we accept that the current appeal system exposes weaknesses in the original summary trial, we must also look at what happens after a successful appeal. As the Bill stands, if the Crown court quashes a conviction and determines that a retrial is necessary, the case must generally be returned to the magistrates court.
We believe that that is a rigid approach that ignores the complexity, which does not exist at present, of what might have been revealed by the appeal. Because we are introducing a new system of allocation and decisions around allocation, that is a new area of the law that could be contained within appeals. A successful appeal may demonstrate that the case was too complex, or the evidence too sensitive, for a summary disposal in the new division. Returning cases to the same level of court that originally fell into error will do little to restore public confidence.
Yasmin Qureshi (Bolton South and Walkden) (Lab)
It is a pleasure to serve under your chairship, Dr Huq. I will speak to amendments 64 to 66, tabled by my hon. Friend the Member for York Central.
We have had a discussion about this provision. The amendments seek to give a right to renew an application for permission to appeal orally, and to allow grounds for appeal to raise issues of procedure and fact arising in the trial, as well as issues of law. Clause 7 currently suggests that a person can only appeal in writing on matters of law, which means that a person is going to have to construct a proper legal argument. The problem with that is that the majority of people in the magistrates court are unrepresented.
It is wrong to say that this is comparable with Crown court cases going to the Court of Appeal, or the higher courts having to deal with the issue of leave to appeal—for example, as in judicial review. Magistrates courts tend to have some very “minor” offences leading to some quite serious repercussions. When I say “minor”, I am talking only in terms of sentencing, because we must remember that offences that we call minor can have a significant impact on a defendant’s life—for example, even drink driving, which does normally not carry a custodial sentence, certainly carries a disqualification.
That is also often a mandatory disqualification so that no discretion is given to the magistrates as to whether they should disqualify somebody. If someone is the sole breadwinner, or has care of a disabled person, and they feel that this conviction was wrong, they will not have the right to appeal—because very rarely will somebody charged with those matters will be getting legal aid.
However, in the Crown court, most people will have legal aid or be using legal advice at some point, because the trial will normally be conducted by solicitors or lawyers. Therefore, they are already being paid and if there is an appeal against either conviction or sentence, they already know what they are talking about and what they need to quote—the legal jurisprudence that they need to refer to, to prove their case—along with the issues with examining the witnesses or the evidence that has been given. They are then able to say, for example, that a particular witnesses’ evidence was not credible or that a witness said contradictory things or different things in their statement to the police compared with during the trial. They can do that because they have conducted the trial and they can forensically examine what happened—not only what legal direction the judge gave, but the factual evidence that came out during the trial. In the magistrates court, most people are not represented, so they cannot argue all those things.
To take away the automatic right to appeal is, therefore, a change to the fundamental basic rights of an individual. Let us remember that the state has all the might and all the resources, and that professionals will be prosecuting—whether they are lay prosecutors, Crown prosecutors or independent lawyers. On the one side, there will be the state represented by legal professionals; on the other, there will be the lone individual coming up by themselves to be subject to trial. If they are then not satisfied with the conviction or the sentence, they must then think how to legally write an appeal. That is putting a lot of pressure on them.
As Members of Parliament, many of us will have met many constituents who are quite reluctant to even write to us. I often say to constituents, “Please can you drop us an email?” and they say, “Well, I don’t know how to use a computer, and I don’t have the internet at home.” We then make a face-to-face appointment so that they can explain themselves. That is not unusual because a lot of people are not able to write very well and would not be in a position to construct a coherent legal argument as to why they should have their appeal in the Crown court.
Sometimes, when we are talking about possible efficiencies and saving money, we forget about individuals. People who come before the criminal justice system tend to be from poorer backgrounds and are often less well educated. Some of them may well be unemployed. A lot of them have other issues going on in their lives. Therefore, the fact that they can appeal to the Crown court automatically in the current system is an immense safeguard for them.
Jess Brown-Fuller (Chichester) (LD)
The hon. Member is making an important point that we have not really discussed on the Committee. It is estimated that half the prison population have a reading age of less than 11; that is to say, they are counted as functionally illiterate. We have seen a decline in prison education. How does she expect all these prison inmates to be able to negotiate or navigate an appeals process?
Yasmin Qureshi
That is exactly the point I am trying to make. I think we sometimes forget, sitting in our rarefied environment, that a lot of the people out there—our citizens—are not well educated or able to write a proper paragraph or construct an argument. Sometimes they can just about get two or three simple sentences together. As they often do not have legal representation, allowing them to automatically appeal against a sentence or conviction is a really important safeguard for them. The Crown court and Court of Appeal criminal division is not the right comparison, because in most Crown court cases people have full legal representation who will be able to advise on this.
The other thing we found is that apparently 40% of appeals are successful. Think about that: four out of 10 appeals are successful. If people do not have a right to appeal, they have to find a way to make a legal argument on matters of law, which they know very little about. Asking them to do that is basically letting four out of 10 people be convicted or receive a sentence that could have an impact on their lives.
On sentences, when a conviction happens, even if it is in the magistrates court, it fundamentally affects people’s lives. It could mean that they are not able to get a job again or are dismissed from the job they have. If someone’s job involves driving and they are disqualified because of drink driving, that will be an extra burden on them, but it is not just that. Even if someone gets a suspended sentence or community service order for what we call smaller offences, a lot of people are not able to do that. Taking away their right to appeal is, with respect, very harsh.
Legal aid has already been reduced considerably over the years. I have to put the blame for that on the Conservatives, because they massively cut legal aid while in government. They also massively restricted the rights of judicial review. In that respect, I have to hold the Conservatives a bit responsible for what they did in 14 years in power. I am very grateful that the Labour Government have put money into legal aid—that is great—but I ask them to please give that to the magistrates court as well.
I have travelled in different parts of the world where the justice system is perhaps a bit haphazard or where there is not much trust in the state’s justice system, for whatever reason. It does not necessarily have to do with the wealth of a country; there are very wealthy countries where the state is much more authoritarian and the institutions are almost stacked against the individual. The one thing that people really love about the UK, apart from our beautiful country and everything else, is our judicial system. I am not just saying that; it is the most respected system in the world, especially our criminal justice system, because people feel that they have protection at the point that their liberties are being taken away.
Think about a conviction for shoplifting: people say, “Oh, shoplifting,” but even if someone takes a bottle of milk out of a shop, they may get a conviction and there will be hundreds of jobs that they can never apply for. For a lot of people who rely on shop work or other manual jobs where they may come across money, it means that they are never going to get a job. If they get a conviction in the magistrates court for theft, that is devastating for them. The Theft Act refers to the “intention of permanently depriving”. That is quite important, because people make mistakes, but intention has to be proved, because the Theft Act requires it. It is not just taking the thing; it is the intention to permanently deprive. How do we define “permanently deprive”? A layperson would not know how to construct that argument, but a lawyer would.
Jess Brown-Fuller
It is a pleasure to serve under your chairship, Dr Huq.
Clause 7 and schedule 2 will restrict the right to appeal the decision of a magistrates court to the Crown court, and will change the process that those appeals go through. Currently, a defendant has an automatic right of appeal from the magistrates court to the Crown court against either conviction or sentence; in either case, the appeal is a hearing before a judge and two magistrates. The Bill will instead introduce a requirement for an application for permission to appeal based on written grounds. A Crown court judge will decide whether to grant permission, and the appeal hearing would be heard by a single judge. Instead of a rehearing, the appeal would be only on the issues on which permission is granted. If the appeal is against conviction, the judge must allow the appeal if the conviction is unsafe. If so, the judge may order a retrial in the magistrates court.
It is not unreasonable to have a conversation about the appeals process, especially as there is a small amount of evidence of the system being abused by a very small minority of defendants who believe that the appeal will be successful on the grounds that the victim or witnesses will refuse to go through the experience again. I absolutely recognise that, and we need to put essential safeguards into the criminal justice system to provide greater protection for those victims. We will be getting to the crux of that issue over the next days in Committee.
However, clause 7 and schedule 2 are blunt instruments that will harm access to justice. We cannot ignore the fact that although a very small number of cases from the magistrates—less than 1%—go to appeal, more than 40% of those are successful at appeal. Given that the magistrates court will be hearing more complex cases that carry higher sentences, the measures will increase the risk of miscarriages of justice. Touching the appeals process at this point is unnecessary when it is currently sparingly used. The Criminal Bar Association has argued:
“Access to justice will be harmed. Who is going to find the lawyers who have time to review transcripts of evidence and prepare grounds of appeal? Who is going to pay them for that work? What about the defendants who were ineligible for Legal Aid, because of the lower cut off for eligibility?”
We discussed the eligibility cut-off in the previous clause.
JUSTICE has raised similar concerns, stating that replacing the automatic right of appeal with a multi-stage permission system
“is complicated and highly likely to be inefficient”,
and will fail defendants who cannot navigate these processes, as laid out articulately and clearly by the hon. Member for Bolton South and Walkden.
The current process means that appeals are heard by a judge and two magistrates. The opportunity for magistrates to sit with a Crown court judge to hear appeals is an important one, as it helps with the training of magistrates and drives up standards. Under the Bill, there are no circumstances in which lay justices would sit with professional judges. We are debating a number of amendments, some of which seek to restore the conditions we have right now—retaining the automatic right to appeal—and some that go further, although I think the shadow Minister suggested that he would not press them all to a vote.
I would appreciate the Minister’s explaining whether she thinks the processes being put in place by clause 7 and schedule 2 are compatible with the principles of access to justice that she has laid out previously in Committee. I remain gravely concerned that the measures will have a huge impact on the most vulnerable in society.
Siân Berry (Brighton Pavilion) (Green)
I am happy to have you back in the Chair today, Dr Huq. I wish to oppose the clause and the schedule. I am grateful to the hon. Member for Bolton South and Walkden for pointing out so clearly that the restrictions on appeals will push down hardest on the least advantaged people and will compound injustices in wider society, as well as the injustices put in place by other clauses.
I will not reiterate in detail the evidence we heard, or the speeches I made previously, about the risks of more errors due to the speedier but rougher and readier justice of the magistrates courts being applied to more cases, or the risks arising from higher sentences. However, clause 7 adds yet more risk to the potential harm from reducing the right to select a jury trial in clause 1 and the restrictions put in place by other clauses. This is counterproductive for the overall courts workload, too.
As others have pointed out, the clause will introduce a multi-step process. We heard in oral evidence from Emma Torr of Appeal that the
“multi-step process…will only increase the workload of both the magistrates and Crown courts. To give a very brief outline of how it works at the moment, the defendant or the solicitor can fill out a very simple form, which results in a quick rehearing at the Crown court. It takes a couple of hours at most and even less for sentence appeals.”
She also pointed out that the Law Commission had carefully considered the matter last year in a consultation paper that ran to 700 pages. She said:
“Its independent analysis was that the removal of the automatic right to appeal will increase the workload of the magistrates court and the Crown court.”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 83, Q174.]
In our oral evidence sessions, we heard clear views about the lack of legal aid in magistrates courts for people without representation to meet fairly the test set for appeals. Fiona Rutherford of JUSTICE told us:
“Without a lawyer being present, and of course without there even being the right to appeal directly, you are leaving a whole load of defendants, who may well be wrongly convicted or may get the wrong sentence for the crime they have committed, floundering…I simply don’t know who will inform these people about how they will put grounds of appeal together, what grounds of appeal even are, how you formulate those, what key points you need to make in them to persuade a Crown court judge sitting alone in a room with just some evidence papers and how to put your best case forward.” ––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 86, Q184.]
These are serious matters of injustice. I do not know how the least advantaged defendants will be able to do anything to use the application to the High Court for judicial review, which seems to be the only remedy that the Minister has put forward to us today. I do not know how many miscarriages of justice are acceptable to the Minister, but I believe that these measures must not form part of the Bill, because of the impact that they will have on the right to justice for too many people.
Rebecca Paul (Reigate) (Con)
It is an honour to serve under your chairmanship, Dr Huq. I do not support clause 7 or schedule 2. I welcome the debate on various amendments and the comments from the Minister.
Clause 7 and schedule 2 would replace the current automatic right of appeal from the magistrates court to the Crown court with a much narrower permission-based system. At present, a defendant convicted in the magistrates court can appeal to the Crown court against conviction or sentence, and that appeal is heard by way of a full rehearing, usually before a Crown court judge sitting with between two and four magistrates. About 40% of conviction appeals and 47% of sentence appeals succeed.
We are now being asked to introduce a system that would instead require permission for such appeals, would usually proceed on written grounds, would be heard by a single judge and would limit the grounds on which permission is granted. The Government say that that would save about 500 Crown court sitting days. I feel that I may be running out of ways to phrase this sentence, but yet again we are seeing a significant roll-back of an important safeguard, justified on the basis of a small hypothetical gain.
We should ask ourselves whether an important protection is being weakened for anything like a proportionate return. On clause 7, I do not believe that it is. I strongly emphasise that appeals are not historical oddities or a procedural quirk; they are one of the principal safeguards against the risks inherent in summary justice. The Bar Council is very clear:
“The proposed change would remove a vital safeguard against wrongful summary conviction and excessive (or unlawful) sentences imposed by magistrates. The consequence risks adding to the burden on the criminal courts rather than reducing it.”
It goes further and says that the current right
“does not appear to be exercised frivolously or vexatiously.”
The Law Society made similar points in its written evidence: it said that the automatic appeal route is a “vital safeguard” and that in 2024 it was used in 2,487 cases, overturning magistrates’ decisions in 41% of convictions and 44% of sentences. It describes about 1,000 miscarriages of justice as being corrected through that route. That is the central fact that the Government cannot really get around. If four in 10 conviction appeals and nearly half of sentence appeals succeed, that cannot be read as evidence that the appeals process is being abused. In fact, it is the opposite: the process is demonstrably being exercised appropriately.
I am deeply concerned that if we roll back the right to appeal, we will be locking the door on an unknown number of cases in which a conviction might have been found to be erroneous, but will now not be identified as such. That is an unknown number of miscarriages of justice not put right, and an unknown number of lives ruined. I am not willing to pay that price for the gain of 500 sitting days, and I cannot bring myself to believe that Government Members are differently inclined.
We do not particularly need to speculate about what the safeguards protect against, because we can point to recent examples. In the notorious Hamit Coskun case, a defendant convicted in the magistrates court of a section 5 public order offence had his conviction quashed on appeal to the Crown court. The appeal court found that the prosecution had failed to prove essential elements of the offence and stated plainly:
“For these reasons we allow this appeal and quash…conviction”.
That is the automatic appeal route doing exactly what it is supposed to do and correcting a conviction that should never have been imposed.
Sarah Sackman
I am grateful to all the Members who have spoken for the points they have raised. Without repeating myself, they have focused on a number of areas. The first is the concern around access to justice under the new process. We had a good debate on the question of the availability of legal aid in an earlier sitting. As I have said, the Government are committed to fair and accessible routes to legal aid. There are mechanisms such as passporting for those on universal credit. An example given was that the vast majority of prisoners do not have an income. The real picture is that the vast majority of them, unless they have personal wealth, do access legal aid and therefore would be represented and supported by those who are able to give legal advice in what are, of course, high-stakes situations.
As I mentioned in the earlier debate, a hardship mechanism is available where the matter necessitates greater complexity and expenses. I recognise that, where there are litigants in person, there is more to do, and part of the implementation and delivery of these reforms will involve looking at what support can be given to those who find themselves in that position. At the moment, litigants in person in the Crown court on appeal to the Court of Appeal are given targeted information and forms that allow them to formulate grounds of appeal and that make it user-friendly and intelligible to a lay person. That sort of thing will have to be put in place if a permission stage is extended to the magistrates court.
The points that have been made are valid, but I also want to present a realistic picture of the fact that the majority will continue to access legal aid. As I said earlier, the Department has committed to review the position once we know what the final shape of the Bill looks like to ensure that we are not creating a problem in respect of access to justice. However, in the event that there are litigants in person, we also know that we need to strengthen support for them more broadly across the system, not just in the context of these reforms. That will be a vital feature of the implementation.
The second issue raised was about the trade-offs between the efficiency savings versus the introduction of a permission filter to match the sort of permission filter that already exists in the Crown court. While I recognise that the current volume of appeals, in the context of the volume of work that the magistrates undertake, is small, that will grow as the volume of work that the magistrates undertake grows.
The sorts of appeals where success is achieved are precisely the ones that will not be prevented by this appeal test, because it is a low bar; all that has to be shown is reasonable arguability, and a court can identify that straightforwardly. It is not as if, all of a sudden, a huge risk to access to justice is created. However, what is permitted is the filtering out of wholly unmeritorious appeals, the volume of which may grow as the overall volume of cases within the magistrates court expands.
Dr Mullan
I direct the Minister to the report from the Law Commission, which said that there was no significant evidence of people abusing the system or lots of unmeritorious appeals. The point is that someone has looked at this in detail, on an independent, non-party political basis, and they do not support the suggestion that there are lots of appeals going through that should not be in there.
Sarah Sackman
I will say two things to that. Obviously, that report—as is typical from the Law Commission—is non-partisan, but it predates the reforms we are proposing in the Bill, which will inevitably increase the volume of cases we are talking about. It goes back to the point that, where we have finite resources, if the permission stage filters out only a relatively small number of cases—in fact, that is how I anticipate it will work—then that is all to the good, because even those take up a disproportionate amount of Crown court resources that we can ill afford to have directed to wholly unmeritorious appeals. That is what we are getting rid of.
The other thing is that this test is focused on specific grounds, much in the same way as exists in Crown court appeals. The treatment of that appeal can be directed towards the issue that has been the cause of the appeal, rather than having the whole thing looked at again, which is currently the case.
Dr Mullan
It is about the combination of those concerns, along with the fact that there are unrepresented people. The Minister is right to say that people who have representation, if their appeals are valid, will be able to carry on, because they will continue to meet the test. The reason the Opposition support the broader approach is because there are people who do not know the detail of the law or how to make a successful application. That is why there should be a freer approach. The concern is about those two things combining.
As my hon. Friend the Member for Reigate pointed out, not only are things being made more consequential—longer sentences and a lower likelihood of a jury trial—but at the same time it is becoming more difficult in the other direction. That feels counterintuitive and not in line with what the Government are saying about making the system fairer. On that point, the Government are moving in directly opposing directions.
Sarah Sackman
I have heard that argument, but I do not accept it. I do not think the provision makes it less fair. But I accept that there is work to be done, which does not necessarily need to be reflected in the Bill, to support litigants in person, and to examine the approach and the structure to legal aid, to narrow the gap for those who do not have access to it. That way we can reduce the number of people who have to navigate the system without legal representation.
I will not repeat the arguments that I made earlier. For those reasons, I commend the clause and schedule 2 to the Committee.
Question put, That the clause stand part of the Bill.
Jess Brown-Fuller
I beg to move amendment 17, in schedule 2, page 52, line 5, leave out “on payment of a fee” and insert—
“to victims of criminal offence without a fee within 14 days of a request”.
This amendment would make magistrates’ court transcripts free for victims and requires that such transcripts are provided within 14 days of a request.
I first acknowledge that the Government have made steps to improve access to court transcripts after robust negotiations in both Houses and on various Bills, most recently the Sentencing Act 2026, the Victims and Court Bill and now this Bill.
I also put on record the exemplary effort made by my hon. Friend the Member for Richmond Park (Sarah Olney), who has been campaigning to ensure that court transcripts are made available for free for victims of crime, after her constituent was quoted thousands of pounds to access the transcript of her own court case. Nobody should be priced out of seeing their own story.
Why are transcripts important? For many victims, they choose not to attend the entirety of a hearing or trial. Even if they do, there is so much to take in. Being able to process the events of the court case provides a valuable opportunity to better understand why decisions were made and hopefully enables them to move on with their lives.
The Committee had the privilege of listening to the testimony of Charlotte Meijer, alongside other victims, Jade Blue McCrossen-Nethercott and Morwenna Loughman. I would like to remind Members of a few of the things that Charlotte said. She said:
“For me, having transparency really changes things. We talk about justice and the system being closed, so if we have more recording and transcripts, it will really help people. There is something that is not in the Bill that I would love to see; I have fought for the last three years for sentencing remarks to be made free, which we did earlier this year, but I believe that is not going to extend to magistrates courts. If they are now being recorded, my belief is that they should also be free in that way.”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 25, Q49.]
Charlotte spoke about her experience. She did not feel that she could listen to the trial after she had given her evidence, because it was a very small bench and the defendant’s family and friends were sat there. She did not feel like she could go and sit and listen, so she left, but she had indicated that she would like to be there for the sentencing or the hearing. However, she just got a call from her independent sexual violence adviser telling her that he had been found not guilty. She was not given the opportunity to hear that. Charlotte continued:
“For my healing, and for me to be able to move on, I just needed to understand what was said in court, so I went to ask for the transcripts, of which of course in the magistrates courts there are none.”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 26, Q51.]
It is important for victims of crime and victims who see their perpetrators found not guilty to have the opportunity to process that by seeing what happened, whether they were in the room or outside it. The transcript can also be a tool for those who choose to apply to the unduly lenient sentences scheme, which I am pleased that the Government have agreed to improve significantly, after working alongside Baroness Brinton in the other place.
I recognise the concerns raised by the Government, particularly about the cost of producing transcripts and the processing time for redaction, which is all currently contracted out. I am pleased that they have agreed to a proactive trial of AI in courtrooms to improve transcripts, and to a move to record all magistrate hearings. I know that that approach has cross-party support; I have been in the Chamber with many Labour MPs and MPs of other parties who have made exactly the same arguments that I am making now, that providing free court transcripts is a key step towards transparency.
The Minister knows that we have worked collaboratively on reducing the scope in other Bills and have called on the Government to provide judicial summings-up and the route to verdict, including for those whose defendants are acquitted, because there is still a process that they need to go through. I am keen to work with the Government on this. I hope that as the Bill progresses through the House, we can continue the good work that has started on court transcripts.
Dr Mullan
I rise to speak in support of amendment 17, which stands in the name of the hon. Member for Chichester. I acknowledge the progress that we have made on the issue; it has not been as fast or as good as personally I would like, but it has absolutely been progress. The hon. Member has laid out some of the important points.
The idea that we will record these proceedings and that the transcripts will exist, but that the victim cannot have them, is obviously not sustainable. If they do not exist at all and nobody has them, that is one thing, but when they are available and some people might be accessing them—defendants, for example—it is really not reasonable that victims cannot, for all the reasons that we have discussed in relation to the Crown court. The existence of recordings will make that less of an excuse. Again, the interaction of different elements of the Bill, with longer sentences, restricted appeals and more serious cases being heard, builds an even stronger case for victims to have access to the transcripts.
The hon. Member for Chichester mentioned the unduly lenient sentence scheme. As we talked about in the context of Crown court appeals and the current use of the scheme, it is pretty hard to appeal an unduly lenient sentence if we do not even have access to the route to sentencing that the judge laid out to explain why they gave the sentence that they did. In my understanding, we have a later amendment that asks for an expansion in the use of the scheme in order for it to be meaningful. We talk about the unduly lenient sentence scheme, but people cannot access it in the magistrates court, even though we are about to put more serious cases into that court. At the minute, people are able to access the scheme when a case is heard in the Crown court. For those reasons, we enthusiastically support the hon. Member’s amendment.
Siân Berry
I will speak briefly in support of the amendment, to which I have put my name. Later, I hope to speak about the real difference between viewing evidence—seeing it given in real life, or going into the room where evidence is given—and being able to review it more dispassionately later in writing. Given that we are now producing transcripts, the amendment would be an important measure to provide them free to victims who may want to see what has been said in court, without having to attend court and see it in a more triggering, more visceral way, and without facing a financial penalty. It is important that the amendment is agreed to, along with everything else, to allow for a more compassionate way to treat victims.
Sarah Sackman
I thank the hon. Member for Chichester for tabling the amendment. As she acknowledged, there has been fruitful cross-party working on the issue. I am really pleased to see the progress that we have made, both as a matter of open justice, because timely justice must be fair and transparent, and, candidly, because technology is our friend here and is enabling progress. It must be robust and tested, because the ability of AI to enable redactions where needed has to be properly studied, which is why we have initiated an AI study. But I am pleased with the progress that we have been able to make and that, as a Parliament, we will continue to make.
Dr Mullan
I have always struggled somewhat with the question of redaction. If reporting restrictions are in place, what can be shared and so on will be controlled, but anybody can sit in a court and listen to the whole thing, unredacted. I am not quite sure that I understand the absolute focus on transcripts being redacted. If someone could have sat in that court and written down what was said, word for word, why are we worried about its being redacted? The judge is the person who can say, “You can’t report that, beyond what you’ve heard,” but, separately, why are we so much more concerned about transcripts than we would be about open court, where everyone can hear the whole thing?
Sarah Sackman
It is context specific, which is exactly why we have a study: to test the level of accuracy. Accuracy is really important; we do not want a lot of judicial time to be taken up reviewing the accuracy of transcripts before they can be put out. That would not be a good use of judge time, which should be spent running trials and getting them concluded. In some contexts, most obviously in family law, redaction is really important.
Jess Brown-Fuller
On the shadow Minister’s point, does the Minister agree that, especially for victims of serious crime, there can often be things in court transcripts that might, without giving addresses, clearly describe the location where something happened? Although the shadow Minister is right to say that anybody can attend a trial, that could be used subsequently to retraumatise somebody, because they would be aware of exactly where something happened. It could also identify someone’s address, for example if it refers to the corner shop at the end of their road: even if the address may be redacted, the detail is not always. Does the Minister agree that redaction plays a really important part in protecting vulnerable witnesses and victims?
Sarah Sackman
Yes, I do. This is why we have to get this right. As I say, we are firmly committed to improving transparency across the system and making a success of it, but those changes have to be balanced against the operational realities and the financial realities in which our court system operates.
Proposed new section 108S of the Magistrates’ Courts Act 1980, to be inserted by schedule 2 to the Bill, will already provide the power for the rules of court to provide free transcripts to any person the Secretary of State directs. The amendment is therefore not required, as the intended effect will already be achieved under the current drafting.
We have taken significant steps to strengthen transparency, including expanding transcript provision, so that all victims who want them will be able to request free transcripts of Crown court sentencing remarks directly relevant to their case from as early as spring 2027. That is a meaningful step forward for victims. In cases of public interest, Crown court sentencing remarks are already published online, and broadcasters are able to film sentencing remarks in the Crown court with the agreement of the judge.
We are focused on driving improvement for the longer term, exploring how technology, including AI, can reduce the cost of transcript production in future and make it more widely available. That is why we are undertaking a study into the use of AI transcription in court hearings. All this work will provide this Parliament and future Parliaments with an evidence base for future decisions about how transcript provision could be expanded in a way that is operationally sustainable and delivers real-world benefits for victims, including in the magistrates court, over time, as recording capability expands.
Rebecca Paul
One thing I have increasingly noticed, particularly in high-profile cases, is that people live-tweet, setting out exactly what is going on. That is another thing to bear in mind. I very much welcome the progress that the Minister has set out, but in the world of social media it is important that people, and particularly victims, can get an accurate transcript as easily as possible, especially if something inaccurate has been tweeted out.
Sarah Sackman
The hon. Lady raises a valid point. All sorts of work needs to be undertaken about the use of social media in courtrooms, whether by juries or other participants, and where that is and is not appropriate, particularly in the context of reporting restrictions that are put in place for a good reason. But on this point, we think that the amendment is not needed. We can continue to make progress informed by an evidence base. For those reasons, although we are in real consensus on the principle of this, I urge the hon. Member for Chichester to withdraw her amendment.
Jess Brown-Fuller
I appreciate the Minister’s constructive collaboration on this issue, but as it is my job to hold the Government’s feet to the fire, I will press amendment 17 to a vote.
Question put, That the amendment be made.
Yasmin Qureshi
I beg to move amendment 67, in clause 8, page 19, line 13, after “charge” insert—
“including any behaviour or communication preceding the charge that is connected to the event itself”.
Yasmin Qureshi
I will not press the amendment, which is self-explanatory, to a vote, but I ask the Committee and the Minister to think about it.
Dr Mullan
We now come to a series of considerably less contentious clauses, including clause 8, relating to the admissibility of evidence in our criminal courts. This area of the Bill deals with the sensitive and often contentious issue of sexual history evidence. Of course, we want victims of rape, sexual violence and domestic abuse to experience a justice system that treats them with dignity and protects them from irrelevant, prejudicial attacks. Complainants can be subject to questioning that is invasive and distressing, that may not be relevant or may hold little or no genuine relevance to the legal issues at hand.
Clause 8 seeks to tighten and clarify the rules governing when a complainant’s previous sexual behaviour can be introduced as evidence. The underlying principle is that a complainant should not have their credibility undermined through assumptions, stereotypes or what are often described as rape myths regarding their past.
To achieve this, the clause will replace the current model with a more rigorous admissibility framework. Under the new rules, such evidence may be admitted only if it meets one of two criteria: it must have substantial probative value in relation to a matter of substantial importance to the case as a whole, or it must constitute important explanatory evidence. This shift is intended to ensure that only genuinely relevant material is put before the court.
Furthermore, the clause explicitly requires the court to consider whether the suggested value of the evidence relies on inferences that cannot be properly drawn, to avoid the situation in which evidence is admitted with the defence knowing what inferences be drawn even if it would not be proper to do so. That is another important safeguard designed to prevent the trial process from being distorted by prejudice.
Although the Opposition support the aim of ensuring better protection for complainants, our role in Committee is to ensure that the law is not only well intentioned, but clear, workable and consistent with the right to a fair trial. I am sure the Minister agrees that there cannot be a blanket ban on the admission of this sort of evidence where it meets those tests.
I have a number of questions in relation to the need to ensure that the measure does not create any unintended procedural hurdles. To forewarn the Minister, this will be a consistent question across these clauses, but what assessment has been made to ensure that the substantial probative value threshold is sufficiently precise—not sufficiently high or low, but sufficiently precise—to meet both sides of the coin, and that it is workable in practice? How do the Government intend to monitor the application of the new framework to ensure that it delivers the intended protection for complainants? Is the Minister confident that the drafting strikes the correct balance between protecting victims from inappropriate and invasive questioning and upholding the fundamental right of a defendant to a fair trial?
The need for reform in this area has been well argued, and protecting victims from irrelevant and prejudicial questioning is a goal we all share. However, as I have said, the Committee’s task is to ensure that this clause is the right approach. That is something we should continue to explore throughout the later stages of the Bill.
Rebecca Paul
It is truly a pleasure to get to a part of the Bill on which I suspect we will agree more than we will not. I think we will all find that rather refreshing after the last few sittings.
Clause 8 seeks to introduce a new framework governing the admissibility of evidence about the previous sexual behaviour of the complainant. I very much welcome the fact that we are now having this debate and looking to address some of the issues we currently see in the justice system with respect to sexual assault crimes. Rape and sexual violence are horrendous crimes that have a lifelong impact on victims. In oral evidence, we heard this directly from some of the brave witnesses who testified, and I thank them for giving their time so generously and for speaking so honestly and courageously. What was made very clear is that they are keen to see change in how the justice system deals with these types of offences. They want to see justice done swiftly and considerately.
It takes a huge amount of bravery for an individual to report these types of crimes and to pursue their attacker through the courts, so we must do all we can to ensure that the process is quick, supportive, effective and efficient for them, while preserving the principles of natural justice. Although I may disagree with some victims on the limitation of jury trials being a way to achieve this, I share the same ambition: to speed up the process so that justice is no longer delayed and denied.
It is important to remember that most of these crimes are committed by someone the victims knows, making the process even more of an intrusive ordeal. It is deeply personal. That is why it is important to treat victims with respect and care, not to diminish their experiences or feelings, and not to make them feel like they are the ones on trial. It is incredibly important not only for justice, but for deterrence purposes, that the state sends a clear message that those guilty of such crimes will face the consequences. This is much needed at a time when violence against women and girls is rife in our communities. If the state can get this right, we should see more victims coming forward and being more willing to undergo the stress of a trial in the confidence that justice will prevail.
In June 2021, the Conservative Government published the findings of an end-to-end review of the criminal justice system response to rape, which they referred to as the rape review. What it found made for difficult reading. In the prior five years, there had been a significant decline in the number of charges and prosecutions for rape cases and, consequently, fewer convictions. One in two victims were withdrawing from rape investigations, demonstrating a big problem. The Home Secretary at the time, my right hon. Friend the Member for Witham (Priti Patel), said:
“We are not prepared to accept that rape is just ‘too difficult’ a crime to prosecute. We can, and must, do better.”
The review set out that there are an estimated 128,000 victims of rape a year, that less than 20% of victims of rape report to the police, and that only 1.6% of rapes that are reported result in someone being charged. That means that considerably fewer than one in every 100 rapes actually leads to justice for the victim. That shows the scale of the issue. One of the actions set out was that
“only evidence about the victim that is pertinent to the case should be used at court and a victim’s credibility should not be undermined by pre-conceptions or rape myths.”
In the final recommendations issued by the Law Commission in 2025, it was made clear that the use of evidence relating to the previous sexual behaviour of the complainant—for example, previous consensual sex between the defendant and complainant, or between a defendant and a third party—is highly distressing, humiliating and even traumatising, and is often irrelevant and can prejudice a case.
The admission of sexual behaviour evidence has, rightly, long been restricted through so-called “rape shield” legislation, which applies specifically to a trial where a person is charged with a sexual offence. No question can be asked about the sexual behaviour of the complainant without the leave of the court, and various gateways are considered in determining that. However, the Law Commission has criticised those gateways for being too restrictive, too broad and too complicated.
Clause 8 seeks to address some of the issues raised by the Law Commission, and has incorporated the stage 1 recommendation accordingly. It amends the conditions that must be met before a defendant can adduce sexual behaviour evidence or ask questions intended to elicit evidence of sexual behaviour in criminal proceedings. It ensures that such evidence may be admitted only if it
“has substantial probative value in relation to a matter which—
(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in...the case as a whole”.
However, clause 8 does not include stage 2 of the two-stage framework suggested by the Law Commission, which prohibits the use of sexual behaviour evidence unless its admission would not significantly prejudice the proper administration of justice. The Law Commission has raised that specific deviation in its written evidence. I ask the Minister to give her reasoning for not adopting the second stage, so that we are all clear.
It is reassuring to see the Bar Council welcoming the changes brought by clause 8, which it says
“provide appropriate safeguards for victims and for fairness of trials.”
The Law Society also supports the proposals, along with many other rape crisis and women’s organisations. Having said that, I note that a joint letter from Rape Crisis England & Wales, the Centre for Women’s Justice, Rights of Women, the End Violence Against Women Coalition and Imkaan, while welcoming much of clause 8, raises some specific concerns. It would be helpful to hear from the Minister on those points and whether she intends to make any changes.
Dr Mullan
I mentioned this point in my speech, but I will repeat that these clauses interact with the other elements of the Bill that will remove juries. Under the older jury trial system, the judge decides on things that the jury will never hear, so if something is made inadmissible, there is no question at all of it colouring the judgment. Of course, if we remove the jury in potentially more serious cases, we can have all this legislation and all these things that become technically inadmissible, but as we have talked about, we are then relying on the intellectual operation of the judge’s mind. Whether or not people think it is right for them to draw a direct conclusion, it is a matter of fact that judges are a group of people who are more distant and removed from the people we are concerned about. For example, if we are talking about women and girls, judges are more likely to be men. Those are the issues that will become more contentious as a result of the other changes in the Bill.
Rebecca Paul
My hon. Friend makes a really important point. There is a lot that is positive about the clause, but, as he rightly says, we have to think about it in the context of all the other changes. Unfortunately, we could find that the other changes unwind the good that is done by this clause. That said, it is still a positive clause, and I am pleased to see it in the Bill and to debate it today.
Lastly, I want to flag that in its evidence, Victim Not Suspect notes a need to address verification and/or the reliability of digital evidence, which it believes is relevant to the admissibility test and has not been addressed in the Bill. It would be useful to hear the Minister’s view on that matter too. Victim Not Suspect says:
“Without forensic verification, including IP address data, account ownership confirmation from platforms such as Meta, and metadata examination, there is no reliable basis for assessing authorship.”
That is a point of detail, but it could become important in certain cases, so it is worth bearing in mind. There may be scope to improve and tighten that up in the Bill during its further progress, which is why I have flagged it to the Minister.
Sarah Sackman
I am grateful to my hon. Friend the Member for Easington (Grahame Morris) for tabling amendment 67.
The speech that the hon. Member for Reigate just made was not only helpful and constructive, as is so often the case, but really compelling. At a societal level, we have been on a journey with regard to how we approach rape and serious sexual violence. There is a recognition that for far too long not only has the court been in danger of becoming a site for re-traumatisation, but frankly the response of our entire criminal justice system has been inadequate to meet what is now widely recognised to be an epidemic of violence against women and girls in our society. Unless we send a message at the very pinnacle of the criminal justice system that that is unacceptable and we cannot tolerate it, and get serious about conviction rates, the amount of charging decisions and the number of cases that come to court, we will not deter people from this kind of behaviour. Her speech setting that out, and some of the work that was done before this Parliament to get here, was very valuable.
Let me begin by setting out the rationale for clause 8, and then turn to amendment 67. Far too many victims of rape are dropping out of the justice system because they feel that they are the ones on trial. That needs to stop. Following the Law Commission’s careful consultation, the Bill will stop rape myths and misconceptions entering our court rooms. Clauses 8 to 11 will raise the threshold so that a victim’s past sexual history or previous allegations can be used only when necessary and relevant. The reforms will also prevent the defence from insinuating that victims are lying or motivated only by money just because they claimed compensation or reported a previous offence. We will also allow patterns of domestic abuse, of any type and against any victim, to be shown to the court in cases where they indicate a propensity for further offending.
All those measures sit alongside the Government’s wider efforts to improve the victim experience of the justice system. This Government have already implemented special protections for victims’ counselling records. We have commissioned a new project led by Professor Katrin Hohl to bring Operation Soteria into the courtroom. We are rolling out trauma-informed training for not just judges but all court staff, and we have dedicated £6 million, to be invested over the next two years, to deliver independent legal advice for rape victims. Taken together, these measures are transformative.
Clause 8 reforms the framework that governs when sexual behaviour evidence about a complainant may be introduced in criminal proceedings. Section 41 of the Youth Justice and Criminal Evidence Act 1999 sets out important protections intended to prevent irrelevant or prejudicial material about a complainant’s previous sexual behaviour from being placed before the court. The Law Commission’s consultation found that the current provisions are complex and difficult to navigate, and that they are not being applied consistently across cases. That speaks to the point made by the hon. Member for Bexhill and Battle about monitoring the new framework, but some of this has been driven by the monitoring of the existing framework, and ensuring, by codifying the test, greater consistency of practice.
As a result of that complexity and inconsistency, there are some instances where sexual behaviour evidence about a victim’s previous sexual behaviour is admitted to a court and heard by a jury, despite it having no real bearing on the case. Simplifying the law will help judges to apply a clearer and more coherent test. Clause 8 replaces the existing statutory gateways with a clearer admissibility test. It will continue to be the case that sexual behaviour evidence should not be admitted into the court unless approval is granted by the judge. Judges must consider whether the evidence has substantial probative value. The clause also requires judges to consider a series of statutory factors, including whether the evidence relies on improper inferences, rape myths or misconceptions.
These reforms clarify the law, rather than altering the threshold per se. They reflect principles that are already applied by courts but set them out in a more structured way, which will improve consistency and transparency. We will also extend the new threshold to all offence types, not only sexual offences. This is because issues relating to a victim’s past sexual behaviour may occasionally arise in other trials, and complainants in those cases should benefit from the same safeguards and be treated equally.
The purpose of the clause is not to prevent a defendant from having a fair trial or to exclude evidence that is genuinely relevant; it is to ensure that decisions about admissibility are based on proper evidential reasoning and not on prejudicial assumptions. For that reason, I commend the clause to the Committee.
Amendment 67, which was tabled by my hon. Friend the Member for Easington, seeks to exclude from the proposed admissibility threshold any sexual behaviour evidence that took place prior to the charge, but that is connected to the offence. That goes against the purpose of the clause, which as I have said is to ensure that sexual behaviour from a victim’s past is admitted only when it has clear relevance to a significant issue in the case or is important explanatory evidence. That is to prevent evidence that relies solely on perpetuating rape myths and misconceptions from being used against a victim.
The amendment, which as we have heard has support from across the combating violence against women and girls sector, would significantly broaden the amount of sexual behaviour evidence that the defence could bring to court without any consideration from the judge, including evidence that neither has substantial probative value nor is important explanatory evidence.
Sexual behaviour evidence connected to the event itself could, for example, include any previous sexual behaviour between the same two parties, even though we know that the majority of sexual violence occurs within a relationship. That would allow a huge amount of sexual behaviour evidence to be brought into court entirely unscrutinised and unfiltered by the judge. Insinuating that because a victim has previously engaged in sexual behaviour of the same kind or with the same defendant they are somehow more likely to have consented to the events on trial is a well-known misconception.
Whether or not that was the intention of my hon. Friend the Member for Easington in tabling the amendment, the effect would be to perpetuate this narrative, and we cannot accept it. I therefore urge my hon. Friend the Member for Bolton South and Walkden to withdraw the amendment.
Yasmin Qureshi
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Ordered, That further consideration be now adjourned.—(Stephen Morgan.)
Courts and Tribunals Bill (Tenth sitting)
Thursday 23rd April 2026
(1 day, 11 hours ago)
Public Bill CommitteesRead Full debate Courts and Tribunals Bill 2024-26 View all Courts and Tribunals Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Notices of Amendments as at 23 April 2026 - (23 Apr 2026)
The Committee divided: - Ayes: 3 / Noes: 9 - Question accordingly negatived.
Yasmin Qureshi (Bolton South and Walkden) (Lab)
I beg to move amendment 68, in clause 9, page 20, line 12, leave out “substantial probative value” and insert “relevance”.
The Chair
With this it will be convenient to discuss the following:
Amendment 69, in clause 9, page 20, line 32, at end insert—
“(8) Where a compensation claim has been made, or an attempt to make a claim has been made, disclosure of the details of that claim is relevant notwithstanding that an application for leave has not been made.”
Clause stand part.
Yasmin Qureshi
It is a pleasure to serve under your chairship, Ms Jardine. The amendments are fairly self-explanatory: they just ask to insert a few words. I will leave it at that.
Dr Kieran Mullan (Bexhill and Battle) (Con)
It is a pleasure to have you guiding us through the second part of the proceedings today, Ms Jardine.
Clause 9 is part of a rolling set of clauses about the admissibility of evidence. Our task is to ensure that, while we protect complainants from being retraumatised by intrusive lines of questioning, we also maintain a legal framework that is clear, workable and consistent with the fundamental right to a fair trial.
Clause 9 specifically addresses the use of evidence regarding compensation claims made by complainants in sexual offence cases. Under current practices, complainants are sometimes discredited or have their credibility attacked simply because they have sought compensation for the harm they say they have suffered. It is entirely fair and reasonable, and a valid part of our law, for someone to pursue a criminal case and also seek financial compensation. But sometimes there is an underlying misconception that the act of seeking compensation, on its own and without any more evidence, means that the original criminal complaint may have been fabricated.
To address that, clause 9 introduces the following measures: a leave requirement, which means that evidence about a compensation claim cannot be introduced without the court’s explicit permission, and an admissibility threshold, under which a court may admit such evidence only if it has “substantial probative value” in relation to a matter of “substantial importance” to the case as a whole. The goal is to ensure that irrelevant or purely prejudicial material is excluded, while still allowing genuinely probative evidence to be heard when the interests of justice require it. The law must guard against unfair insinuations, but the admissibility test must be applied with precision and discipline. While the objective of protecting complainants from unfair discredit is welcome, there are practical and legal implications that require clarification.
As I have said to the Minister, some of my questions will be consistent throughout the clauses. Can she elaborate on how she expects the courts to interpret the terms “substantial probative value” and “substantial importance”, and outline how the Government will seek to ensure that the restriction does not prevent a defendant from exploring the full circumstances of the case?
Is the Minister confident that the current drafting provides judges and practitioners with a clear enough structure to apply the principles consistently across different courts without creating a postcode lottery? In terms of monitoring and evaluation, what work will the Government do to ensure that these new measures have the desired impact?
Clause 9 is straightforward: its premise is that a victim should not be put on trial for seeking the compensation they are entitled to under the law. Excluding irrelevant and prejudicial material can help ensure that the trial remains focused on the actual evidence of the offence. However, we must be diligent in our scrutiny to ensure that the drafting delivers those protections without compromising the procedural rigour that a fair justice system demands.
The Minister for Courts and Legal Services (Sarah Sackman)
As with the previous debate, I will set out the rationale for clause 9 and then turn to the amendments tabled by my hon. Friend the Member for Easington (Grahame Morris).
Clause 9 will create a high admissibility threshold for evidence about a complainant’s compensation claims in sexual offence prosecutions. That could include evidence that a victim has made a compensation claim in relation to the offence being tried, the amount of money awarded as compensation, details of the claim or the fact that compensation was refused. The Law Commission report made clear that compensation claim evidence is disproportionately requested in sexual offence cases, and that, in some instances, it is used by the defence to insinuate that a victim has fabricated an allegation for financial gain. That kind of reasoning lacks a legitimate basis and risks unfairly undermining victims.
This measure will ensure that such evidence cannot be admitted when its sole purpose is to introduce or perpetuate misconceptions about why survivors come forward. Instead, a judge will be able to admit compensation claim evidence only when it has substantial probative value to a genuinely important issue in the case. These reforms therefore strengthen protections for claimants while maintaining the defendant’s right to a fair trial.
I will respond to the questions from the hon. Member for Bexhill and Battle. He fairly raises the issue of how we can assess that these tests are being applied fairly and consistently. That will obviously take time as they bed in, but, in many ways, the precise rationale behind these changes is to codify, clarify and simplify tests that already exist for the treatment of evidence in these cases and to assist our judges to use them fairly. There is no doubt that future Ministers and others with responsibility for this issue will want to know that it is working as intended. No doubt studies can be undertaken in the future. I commend clause 9 to the Committee.
I turn to amendment 68. The Law Commission’s review made clear that compensation claim evidence is disproportionately requested in sexual offences cases, as I have said. That is precisely why we have introduced the high admissibility threshold in the Bill. The amendment asks for a threshold of merely “relevance”, which is lower than the statutory threshold we propose. If we were to accept it, it would not give complainants any additional protections above the current status quo, despite the Law Commission identifying a clear issue with how this evidence is currently being requested and used. For those reasons, I urge my hon. Friend the Member for Bolton South and Walkden to withdraw the amendment.
Amendment 69 focuses on the disclosure of evidence to the defence before an application is made to admit that evidence to the courtroom. However, the clause does not change the test that the prosecution must currently apply when considering whether to disclose details of a complainant’s compensation claim to the defence. Instead, it focuses on the stage after the prosecution and defence have reviewed the evidence, and asks the judge to consider whether the evidence indeed has substantial probative value and can therefore be relied on in court.
As the clause stands, the case will remain that the prosecutor must disclose to the defence any material that might be considered capable of undermining or assisting the case of the accused—that is only fair—and that includes the compensation claim evidence. The defence, in cases involving sexual offences, can then consider how they wish to bring that forward. For those reasons, I urge my hon. Friend the Member for Bolton South and Walkden not to press the amendment to a vote.
Yasmin Qureshi
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 ordered to stand part of the Bill.
Clause 10
Evidence about previous false complaints relating to sexual offences
Question proposed, That the clause stand part of the Bill.
Sarah Sackman
Clause 10 sets out that evidence or questioning about a victim’s previous allegation of a sexual offence may be admitted only when there is a proper evidential basis for doing so. It also clarifies that certain facts do not, by themselves, mean that a previous allegation was untrue. Those include: if the victim did not report the offence to the police; where an allegation did not result in a charge or conviction; and where a victim withdraws from proceedings.
The Law Commission’s report, alongside the sector campaign “Bad Experiences, not Bad Character”, identified inconsistencies in how courts currently approach previous allegations in sexual offence trials. There have been instances where previous unproven allegations have been raised to suggest, without evidence, that a victim is unreliable by insinuating that such allegations were false. That risks reinforcing myths and misconceptions, making the trial process a traumatic one for the complainant.
This measure will maintain a defendant’s right to a fair trial. Judges will still be able to admit evidence about a complainant’s previous allegations when there is a proper evidential basis for doing so. The clause simply creates a clearer and more consistent statutory test to ensure that such decisions are based on sound evidence rather than speculation. Victims should feel confident that a previous allegation will not be unfairly used against them in the courtroom. Clause 10 strengthens the integrity of the trial process while supporting complainants and survivors to come forward and engage in the justice system.
Dr Mullan
As the Minister said, we are considering the next iteration of the question of admissibility, which addresses the evidentiary rules regarding previous false complaints in sexual offence cases. This is a sensitive area of criminal law where the pursuit of truth must be carefully balanced against the need to protect complainants from unfounded attacks on their character. The primary objective is to ensure that trials remain focused on the actual facts of the case at hand rather than being diverted by speculative allegations that a claimant has made false allegations in the past. The Law Society and Bar Council have indicated their support for this measure; they recognise that it brings clarity to the statutory framework governing bad character and credibility.
The central feature of clause 10 is the introduction of a requirement for a “proper evidential basis” before any suggestion can be made that a complainant has previously fabricated an allegation of sexual offending. Currently, there is an ever-present danger that the defendant may attempt to undermine a complainant’s honesty by pointing to past allegations that simply did not result in a conviction. That is related to the challenges that we discussed in the debate on clause 8 regarding the difficulty of complainants when it comes to seeing a case through to the end—either because of the delays in the courts, which we are all concerned about; challenges with the police; or fears or concerns they might have about how their case was treated in the courts. There could be a whole series of reasons why a complainant does not pursue an allegation through to its fullest conclusion, none of which have anything to do with the allegation being false.
Under the clause, the following factors are explicitly excluded from being used as sole proof of a false complaint: the fact that a previous allegation was denied; the fact that a previous case did not lead to a charge or result in an acquittal; any delay by the complainant in reporting the previous matter; and a complainant’s decision not to pursue or support prosecution in the past. By codifying those exclusions, the Bill aims to eliminate the use of unsupported assertions and ensure that the court does not rely on assumptions or stereotypes that are frequently used to imply that a complainant is untruthful. This is a helpful step in reforming the trial processes by ensuring that a defendant’s conduct and not the complainant’s history remains the focus of the jury.
While the principle of clause 10 is sound, its success depends on how the courts interpret and apply the proper evidential basis test. We must ensure that this framework is robust enough to shield victims from speculative and prejudicial questioning while still being fair to the defendant.
I have some questions for the Minister. Can she provide the Government’s thinking on what a proper evidential basis will look like? Do the Government envisage it requiring independent, objective proof of falsity, such as a previous conviction for perverting the course of justice, or will a lower standard suffice? Is the Minister confident that the current wording provides a road map clear enough to prevent judges from applying different standards? I want to address the gap in the data and understand how the measure will be implemented.
In relation to previous complaints, very sadly there are victims of violence against women and girls who have been affected hundreds of times. Will the Minister explain what would happen if some of these “for exclusion” criteria had occurred at an extraordinary rate? If a complainant’s decision not to pursue or support a prosecution relating to a crime that happened hundreds of times, that could in itself be relevant. It would not necessarily be so—they may have chosen hundreds of times not to support a prosecution. However, unlike other elements of the Bill, the clause is highly specific in what it is excluding, so I want to check whether there is any flexibility for the judge so that, in extremis, they can still admit the evidence, or whether there is a hard no, regardless of circumstances.
Jess Brown-Fuller (Chichester) (LD)
Rape Crisis has pointed out that current practice ignores the fact that women are often subjected to multiple instances of sexual violence in their lives. Survivors have told Rape Crisis that they feel disbelieved, blamed and retraumatised when they simply try to seek justice. SafeLives and End Violence Against Women are both in favour of the reforms in clause 10. It is worth pointing out that black and minoritised women are disproportionately harmed in the criminal justice system by misuse of bad character evidence.
Office for National Statistics data shows that one in two adult survivors of rape have been raped more than once. The National Police Chiefs’ Council strategic risk assessment 2023 identified that 25% of victim survivors were repeat victims of violence against women and girls. The drafting of clause 10 reflects calls from a coalition of women’s rights groups for section 100 to be amended in this way. It was drafted and supported by the Centre for Women’s Justice, and the Liberal Democrats are pleased to support it.
Sarah Sackman
I welcome the support from Members across the Committee for clause 10. A proper evidential basis is defined in the Bill as ensuring that there is material before the court that shows both that the complainant made the previous allegation and that the previous allegation was false. I do not want to elaborate on the test, and thereby in any way tie the hands of the judge hearing the evidence in the case. The tests and the clear structure set out in the Bill will enable and empower the judge to test whether there is an evidential basis for the claim and whether it has probative value and relevance to the issues at hand. The judge will then be able to take a view on whether it can be included and put to a witness.
There will always be cases where the evidence is relevant to the proceedings, both for the prosecution and for the defence. There is certainly no hard rule excluding it altogether.
Dr Mullan
Contrary to our other interactions, I think it reasonable for the Minister just to write to me. I read the Bill to mean that these types of things cannot be included at all, so could she at some point to clarify whether that is the case or whether there is some flexibility at the edges?
Sarah Sackman
I am very happy to do that. I will make that correspondence available to all members of the Committee and the wider public because it is important that, when judges and others are looking to apply the test, they understand the Government’s rationale and understanding of the provisions.
For reasons that others have articulated, this is an important clause, which recognises something that women’s groups and others have been campaigning on for an awfully long time. It can help to change the culture in our criminal justice system for victims of sexual violence.
Rebecca Paul (Reigate) (Con)
I would appreciate some clarity from the Minister on the deviation from the recommendations of the Law Commission—again, just so that we are clear. To refresh her memory, the Law Commission, in its written evidence, states that
“Clause 10 does not implement our recommendations in two key respects.
(1) It does not implement our recommendations regarding distinguishing the different categories of evidence and the thresholds that should apply where there is a previous allegation of sexual offending. Nor does it address the confusion about whether FAE should be subjected to the BCE or SBE frameworks”—
that probably means more to the Minister than to me. It goes on:
“As set out above, in our view, if the evidence of an allegation does fall within the definition of ‘sexual behaviour’, the SBE framework should apply. If not, then the bad character framework will apply, or the relevance threshold will apply if the evidence of an allegation is not said to be false or is not alleged to be misconduct.
(2) It does not address the concern that within the BCE framework there is currently no express provision for consideration of the particular risks associated with the sexual nature of previous allegations, as we recommended.”
Sarah Sackman
I will set this out in writing so that, again, the hon. Member and the public have it, but I can say, in essence, that although we agreed with the spirit of the entirety of the Law Commission’s recommendation, our view was that stage 1 of the test, which is effectively reflected in the Bill, already sets a high bar. We thought that that was sufficient in the context and that stage 2— I was asked about this previously—would not add materially to the way in which the test operates. However, I will take the opportunity to give a response to the question that the hon. Member has just asked so that she can interrogate that over time.
Question put and agreed to.
Clause 10 accordingly ordered to stand part of the Bill.
Clause 11
Evidence of propensity to commit offences involving domestic abuse
Question proposed, That the clause stand part of the Bill.
Sarah Sackman
Clause 11 will ensure that if a defendant has a previous conviction for domestic abuse—of any type and against any victim—it can be taken into account as evidence of bad character in a further domestic abuse case. That will help courts to recognise relevant patterns of behaviour that might otherwise fall outside narrow offence category boundaries. We know that domestic abuse can take many forms and that patterns of domestic abuse do not always map neatly on to a single type of offending. Recognising those patterns can help juries to understand the context of the offence.
The clause therefore allows previous domestic abuse-related convictions to be admitted as propensity evidence when the statutory test is met. That will include cases in which the previous conviction involved coercive or controlling behaviour, and the current allegation involves a different form of domestic abuse, such as sexual assault against an intimate partner. Our aim is to ensure that courts can consider relevant patterns of abusive behaviour when they provide important context on the issues in the case while maintaining the full range of safeguards that protect a defendant’s right to a fair trial.
Clause 11 completes the package of evidential reforms set out in clauses 8 to 11. Taken together, the measures provide greater clarity, consistency and coherence to the rules governing sensitive evidence. They help to improve the experience of victims—particularly victims of sexual offences—in the criminal justice system while ensuring that trials remain fair and balanced. I urge that clause 11 stand part of the Bill.
Dr Mullan
We now go to the other end of the spectrum and look at this from a different direction by addressing how courts handle evidence of a defendant’s propensity to commit domestic abuse. The provision acknowledges that domestic violence is rarely a series of isolated, vacuum-sealed events; rather, it is often characterised by established patterns of coercion, control and escalation over time, repeated across relationships, although potentially in different ways. When thinking about the precedent in our system, it brings to mind Clare’s law, which we brought in for the very purpose of allowing members of the public to know someone’s domestic abuse history, because we recognised just how common it was for abusers to move from victim to victim.
The primary function of clause 11 is to clarify the rules regarding admissibility in respect of past domestic abuse offending. It establishes that a defendant’s previous conduct can be used to demonstrate an inclination to commit similar crimes, even in instances when the earlier and later offending take different forms. That ensures that the law recognises the underlying reality of abusive relationships, where the specific method of harm may change while the dynamic of power and intimidation remains constant. As we have discussed previously, the prevalence of such behaviour is so great that we have to do whatever we can to support victims.
The Bar Council has noted that while much of such material might already be admissible under existing bad character provisions, clause 11 provides statutory clarity for judges. Of course, the court’s duty is to ensure that a jury does not convict a defendant for a specific charge simply because they have behaved poorly in the past. The evidence has to remain relevant and fair, and to be assessed within the unique context of the case. Nothing about introducing that information stops that from happening, as the jury or judge can weigh it up as they see fit in that regard.
How do the Government intend to ensure that propensity is defined narrowly enough to prevent juries from using a defendant’s past as a shortcut to a verdict? Given the Bar Council’s view that that might already be covered, what did the Minister see as the key gaps between how the law operates at present? What are the direct benefits of clause 11 beyond how things currently operate?
I am personally more hard-line when it comes to bad character admissions and previous convictions. I think the whole system should be much more flexible. We have a tough, rigorous way of finding out if someone is guilty, and we know that previous offending is a massive indicator, across many offence fields, of a propensity to offend again. It is part of natural justice. We all understand that if someone has been found to have done the wrong thing on other occasions, it is quite natural and reasonable for people to give that considerable weight when determining that person’s credibility and reliability, and if they can be trusted.
A lot of court cases come down to the likelihood of something happening—how probable it was that someone did something. The fact that someone has done something similar before is clearly going to weigh heavily on any reasonable opinion former’s mind when deciding whether that person has done the same thing again. We support the clause, which has great merit.
Sarah Sackman
I will be brief. What we have tried to do with the definition of propensity—we think this is the benefit—is to provide clarity and a structured process for judges. Of course, it is important to remember that a trial is not a likelihood test. As we all know, it is a test of the criminal standard of proof beyond all reasonable doubt, whether it is a judge-made decision or a jury directed by a judge. It is really important, even in the context where bad character evidence is admitted—the issue of propensity is there—that juries are reminded that they have to be absolutely sure that the offence did happen.
A decision cannot be based on the fact that a person did something before and therefore probably did it again. The jury has to be absolutely sure. None of that changes. That standard of criminal proof does not change as a result of clause 11. We hope that, in line with the Law Commission’s recommendations, the measure provides a clear, structured and, above all, consistent series of tests so that, irrespective of where a trial happens in the country, the same approach is taken and there is a shared understanding among judges, juries and practitioners as to what the test is.
Question put and agreed to.
Clause 11 accordingly ordered to stand part of the Bill.
Clause 12
Use of screens etc
Question proposed, That the clause stand part of the Bill.
Sarah Sackman
We now come to a series of clauses that deal with what happens during the course of trials and the use of special measures—the architecture, so to speak, of what takes place to ensure fairness for all participants. Clause 12 makes an important clarification to the operation of screens in our criminal courts. At present, section 23 of the Youth Justice and Criminal Evidence Act 1999 allows for screens to prevent a witness from seeing the defendant. However, it does not make it explicit that the defendant should be unable to see the witness. In practice, that is almost always how screens are used. When I visited Harrow court, which I am pleased to say recently reopened after three years, I saw that in operation. However, the Law Commission has highlighted that the absence of clear statutory wording has, at times, led to confusion among complainants and practitioners as to who is entitled to what.
Dr Mullan
Clause 12 addresses an important aspect of protection: the use of screens in the courtroom. We must start from the position that special measures are not a luxury or optional administrative add-on; they are often essential to ensuring that the justice system remains capable of hearing evidence properly. We want to enable people to give evidence in the proper way, and victims and vulnerable witnesses must be able to give their best evidence—we always want people to be able to give their best evidence in court—without avoidable distress, intimidation or re-traumatisation.
For many, the prospect of being in the same physical space as the person who harmed them is a primary barrier to their participating in the justice system at all. Clause 12 will strengthen and clarify current provisions by creating a clearer statutory footing for the use of screens. Specifically, when a witness is providing testimony via live link or through a pre-recorded cross-examination, the clause will require the court to consider whether a screen should be provided. Crucially, the clause clarifies that that protection should operate in both directions: not just preventing the witness from seeing the accused, but shielding the witness from the accused’s gaze as well. That increased clarity is intended to support consistency in practice across the country.
For many victims, particularly those of sexual violence or domestic abuse, the physical presence of the accused is a source of profound distress that can affect their memory and the clarity of their evidence. The current application of these measures can be inconsistent, leading to what practitioners describe as a postcode lottery. By establishing a presumption in favour of screens unless it would be contrary to the interests of justice, the law recognises the practical reality. However, we must ensure that that presumption is not merely a tick-box exercise, but achieved effectively through things such as either-way screens.
We must recognise, as we have at several points in Committee, the challenge presented by the fabric of some of our courtroom buildings and their facilities. Evidence provided to the Committee—this is also highlighted by Sir Brian Leveson—suggests that malfunctioning equipment and poor infrastructure continue to create problems, specifically in relation to using special measures. A stronger use of screens can be mandated but, if the physical layout of the court and its facilities are insufficient, that will hamper the clause’s benefit.
What survey or review have the Government undertaken, or do they plan to undertake, to ensure that there are no physical barriers to the use of screens in this way? I suspect that, on a physical basis, it is easier to have screens just in one direction rather than two, and it probably involves different equipment and facilities. It would be good to get the Minister’s view on any barriers that might practically limit the intention of this measure.
Jess Brown-Fuller
Clause 12 stipulates that when a direction allows evidence by live link or pre-recorded cross examination, screens must also be provided unless that would be contrary to the interests of justice, such as due to preventing the adequate testing of evidence. It also clarifies under a special measure direction that a screen may be used to prevent either the witness from seeing the accused or the accused from seeing the witness. The Liberal Democrats welcome the clause.
Vulnerable and intimidated witnesses are entitled to a number of additional measures to protect them from defendants. When the Law Commission conducted a review of these measures in relation to sexual offences cases, it came up with a number of recommendations, although the Government have chosen not to take forward some of them, such as introducing automatic entitlement for sexual offence complainants or providing complainants with independent legal advice on their entitlement to special measures.
It would be helpful to understand from the Minister why the Government chose not to introduce those recommendations, which would have turned special measures into almost standard measures. The blanket introduction of these measures would save administrative time and cost. I recognise that this is anecdotal, but the judges I have spoken to have said that if they get a request for special measures, they never refuse it.
Surely by reversing the onus and introducing the special measures as standard, we would still provide an opportunity for victims to opt out of those measures if they have a particular desire to see, or to look into the eyes of, their defendant, but if they did not wish to do so, they would be, at the very minimum, provided with protections. If this was the standard approach, it would also give more women—this affects mostly women—the confidence to come forward knowing that their court experience is going to protect them.
On a recent visit to Chichester Crown court—I thank the Minister for committing to reopening that court fully—His Majesty’s Courts and Tribunals Service talked about creating videos for those who are coming to give evidence, with the opportunity to have a virtual walk-through of the court. If vulnerable witnesses and victims were able to watch a walk-through to see exactly what measures could be put in place as standard to protect them, I imagine that would provide much more reassurance than saying, “This is what you are seeing, but there are also additional special measures that you can apply for.”
Introducing these measures as standard would also take away the stigma of being associated as a vulnerable witness. We talk a lot about victims. Some victims do not want to be described as victims; they want to be described as survivors. We talk about vulnerability. If we had these measures as standard, we would be acknowledging that vulnerability is expected, but that there is no stigma around it and that the courts have mitigated it, without being asked to do so.
The measures are backed by various victims groups, such as Women Against Rape, and by the Victims’ Commissioner. It would be helpful if the Minister could highlight whether the Government plan to go further and make these special measures standard.
Sarah Sackman
I thank the hon. Member for Chichester for the points she raised. In many respects, they are well made, and they consider people’s choice architecture—for want of a better phrase—their understanding of what they might be entitled to request, and whether we should default to providing all the special measures or maintaining, as we say we should, a tailored case-by-case assessment of the needs of the witness or the complainant. It is a tricky one.
We want to make sure that, where there is a proper basis for it, special measures can be provided to those who need them and where the judge agrees that they are needed. The hon. Member is right that in the vast majority of cases, the request for special measures or to give evidence by video link is approved— it is almost always approved—but there might be cases when, for reasons of trial fairness, that is not the case. The tailored approach is one that we regard as proportionate.
This also relates to the points made by the hon. Member for Bexhill and Battle about court layout and some of the physical constraints that exist within some of our Crown courts. We do not want a postcode lottery. We want consistency, which is what so much of the Bill is designed to achieve. However, we also have to acknowledge that in some of our Crown court centres, the physical constraints are real. That does not necessarily relate to screens, but it might relate to the entrance and exit. For example, there are limitations on the ideal situation of a complainant being able to avoid having to pass a defendant, which might be undesirable for all sorts of reasons. There are some courtrooms in which that simply is not possible without huge capital investment to change the physical structure.
Hon. Members have raised legitimate points and I understand the thinking behind them. We think that in the circumstances, and given that victims have a wide range of needs, a tailored approach, based on a detailed needs assessment, is the most effective approach, but we will continue to consider the situation.
Question put and agreed to.
Clause 12 accordingly ordered to stand part of the Bill.
Clause 13
Witness to be accompanied while giving evidence
Yasmin Qureshi
I beg to move amendment 70, in clause 13, page 27, line 37, at end insert—
“(7) Disclosure of the details of any connection between the independent supporter and the complainant is required prior to seeking the court’s agreement of the independent supporter.”
This proposed addition is simple. The clause centres on witnesses being accompanied while giving evidence. Essentially, it states that if somebody wants another person to accompany them, they should be able to do so if the court is satisfied that they meet the various criteria. The amendment proposes a seventh criterion requiring that the independent supporter must not be a connected person—that is, a friend, a member of the family or a relative. That is for an important reason: we know that in offences involving domestic abuse or sexual offences, the victims and witnesses can be traumatised, distressed and vulnerable, in which case they can be suggestible when it comes to comments, ideas or suggestions about something that they might not even have seen. That is why the person accompanying the witness should be independent.
I shall illustrate that argument by explaining what happens to children’s evidence when taken as evidence in chief. Often, a specialist lawyer, police officer or even psychologist is present when children give evidence. Sometimes, photographs, diagrams or pictures are shown to the children so as to elicit the best evidence out of them. Whenever such a trial takes place, the notes that a psychologist or other trained person has taken, and the pictures they may have shown to the child to get the best evidence, are adduced in court. There is always a suggestion that the person carrying out the interview may deliberately or inadvertently have put an idea in the head of the child, who may end up saying something that did not actually happen or emphasise that something was stronger than it was.
This small amendment says that this approach should apply to adults as well. It says that the connected person must not be family, a friend or a relative. Often, the first person a victim will talk to will be a friend or family member. I do not think that that would be very good. At the end of the day, we want to make sure that convictions are safe and that the best evidence comes through.
Dr Mullan
I rise to speak in connection to clause 13 and amendment 70, which are about how witnesses are supported while navigating the potentially stressful environment of the courtroom. Giving evidence in criminal proceedings is inevitably going to be stressful for many people. For victims of crime, including but not limited to victims of sexual violence and domestic abuse—any crime, really—the presence of an individual to support them in the process can mean the difference between successfully completing their testimony and being overwhelmed by the process.
Sarah Sackman
First, I thank my hon. Friend the Member for Easington for tabling the amendment and my hon. Friend the Member for Bolton South and Walkden for moving it today. While I recognise the concern that the amendment is seeking to address—specifically, the transparency about the relationship between complainants and independent supporters—the Government do not consider it necessary to include an express requirement in the legislation to disclose that relationship at the point of application.
Witness supporters are already an important and well-established feature of court proceedings. The court environment can be daunting for many vulnerable and intimidated witnesses. The presence of a trained professional supporter, such as an independent domestic violence adviser or an independent sexual violence adviser—an IDVA or ISVA—can play an important role in helping them feel more at ease while giving evidence.
Clause 13 places that established practice on a clear statutory footing by recognising the use of a professional supporter as a distinct special measure, alongside a presumption that it may be used by a vulnerable, intimidated witness where the supporter is a professional. In practice, details of the proposed independent supporter, including their relationship to the witness, are disclosed to the court before permission is granted to them to accompany the witness. A professional supporter must have no connection to the case in question, and cannot themselves be a witness. That approach will continue unchanged when the use of a supporter is formalised as a special measure.
As clause 13 makes clear, the court must also be satisfied that a supporter’s presence is not contrary to the interests of justice—an assessment that includes consideration of any potential adverse effects that the supporter may have on the fairness of the proceedings. Against that backdrop, we do not think that the amendment would add any substantive value or additional protection, given that all that information already forms part of a court’s decision-making process as to whether to permit the witness supporter. The term “independent supporter” is defined in the Bill, and the courts retain full discretion as to who can act in that capacity based on the factors that I have alluded to and while maintaining trial fairness. For those reasons, we do not think that the amendment is additive. I urge the hon. Member to seek to withdraw the amendment.
Yasmin Qureshi
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Sarah Sackman
Clause 13 introduces an important new special measure, which will make a real and tangible difference to vulnerable or intimidated witnesses who come before our courts. It enables them to be accompanied by a supporter when giving evidence to reassure them and help them to give their best evidence. Crucially, it creates a rebuttable presumption that a trained professional such as an IDVA or ISVA will be allowed to accompany the witness. These specialists play a vital role in helping witnesses navigate an often stressful and emotionally demanding experience. A presumption helps ensure that this is consistently accessible across our criminal courts.
While section 24 of the Youth Justice and Criminal Evidence Act 1999 already permits witnesses giving evidence via a live link to be supported in this way, and the Criminal Procedure Rules 2025 create a presumption in favour of support from IDVAs or ISVAs, the Law Commission has highlighted that practice on the ground remains inconsistent.
Despite existing provisions, some witnesses who would benefit from the presence of a supporter are still unable to access that assistance. Such inconsistency both undermines witnesses’ confidence and risks adversely affecting the quality of the evidence that they can provide. By improving access to supporters, clause 13 improves the experience of vulnerable complainants and witnesses, while helping to maximise the quality of the evidence that they can give. I commend clause 13 to the Committee.
Dr Mullan
I ask the Minister to think about everything I said about the previous amendment. The Minister mentioned that there is a definition in the Bill. However, “definition” is open to interpretation. The Bill just says:
“an individual who performs a role which involves the provision of support to witnesses in criminal proceedings or victims of criminal conduct, where the support relates to those proceedings or that conduct.”
It seems to me that that could be anyone who says that they perform a role in supporting a witness. It is extremely open. The Minister rightly pointed to two specific roles that are well recognised and understood. However, the Bill does not say that—it does not say “IDVAs or ISVAs”; it just says an “independent supporter”. Questions about the previous amendment also apply here: what in the definition means that it could not be someone’s family member? There is not any kind of specification.
My understanding was that there might be further definition in secondary legislation. Could the Minister clarify whether there will be an attempt at further definition, either in secondary legislation or in criminal practice rules? I do not think that the definition is suitably robust at present. The Minister is not using it—because when the Minister is talking, she refers to the two very well-established and recognised roles that we all understand. However, that is not what is happening in the clause.
We are minded not to oppose the clause, but it appears to suggest that anyone can be an independent supporter. It does not even say that the court must test that; it suggests that if someone says they are an independent supporter, they are in. That cannot be what the Government intended. To avoid an unnecessary vote, perhaps the Minister could offer further clarification, unless I have misunderstood and there will be secondary legislation that provides further definition.
Sarah Sackman
I seek to assist the Committee, as I do not want us to get this wrong. The purpose of the definition is to exclude non-professional supporters or those who do not habitually perform a role in supporting witnesses. That is the intent. The fact that the court must also be satisfied that the support is not contrary to the interests of justice is an important protection in relation to who can and cannot perform the function. I do not think that necessarily excludes the fact that one could, in theory, have a relative perform it. I am, again, happy to provide that clarification so that there is no issue with the Committee not having the full information.
Dr Mullan
I wonder whether the Minister might reflect on that. I think there would be good reason to say that the supporter should not really be a family member. That is not how the system has been operating at present; it has been operating with professionals. I take the Minister’s point about the preceding clause, but the Government should perhaps be clearer about what they expect. I would not be neutral about whether a family member should sit with someone in that situation.
Sarah Sackman
I understand the point. In the circumstances, I would prefer to take officials’ advice and check that the legislation is doing what it intends to—providing a consistent practice of professional witness support, while maintaining trial fairness. I do not want to misdirect myself or the Committee.
Jess Brown-Fuller
My understanding of the legislation is that an independent supporter would be a recognised professional, but that does not exclude someone who may have a relationship outside their recognised profession with the person they are independently supporting. I wonder if clarification could be introduced—similar to what I think amendment 70 tried to achieve—to ensure that any relationship outside the professional role would have to be declared in front of the court. That would make it clear that, ideally, the only relationship between a witness and the independent supporter should be a professional one, and that any other one would have to be declared.
Sarah Sackman
I think all of that is right, but I would prefer to take the matter back to the Department and check that we have a common understanding. I do not want to do this on the hoof if I do not have the full information before me. I think that is the intention—the presumption is that it applies only to professional supporters. I suppose it is ultimately up to the court if a family member sits with the person, if that is deemed necessary in the interests of justice.
Sarah Sackman
I am more than happy to accede to that. This has been useful, and I am very happy to provide that clarity.
Question put and agreed to.
Clause 13 accordingly ordered to stand part of the Bill.
Clause 14
Exclusion of persons from court
Question proposed, That the clause stand part of the Bill.
Sarah Sackman
This clause represents an important and balanced step forward in strengthening the support available to intimidated complainants in our justice system. It will make it easier for courts to exclude individuals who may be causing distress or intimidation from the public gallery, while fully preserving the principle of open justice.
Section 25 of the Youth Justice and Criminal Evidence Act 1999 already permits the exclusion of the public from the courtroom while a complainant gives evidence, yet the Law Commission has observed that the power is rarely used in practice. Concerns about its perceived impact on open justice, particularly the requirement that only a single member of the press can remain, means that courts are often reluctant to apply it. At the same time, we know that individuals present in the gallery, including supporters of the defendant, can on occasion create an atmosphere that is distressing for intimidated witnesses. My hon. Friend the Member for Lowestoft (Jess Asato), who has huge amounts of experience in this area, told me of an egregious example affecting a constituent of hers who was giving evidence while friends of the defendant were creating an intimidatory atmosphere in the gallery, yet nothing was done about it.
The clause offers a practical and proportionate solution to that sort of situation. It will broaden the categories of individuals who may remain in the courtroom when the public gallery is cleared, allowing accredited members of the press, approved academic researchers and one supporter for the complainant to stay. It directly addresses concerns about transparency and open justice by allowing those reporting or researching the case in the public interest to remain. That is not a novel approach: comparable provisions already operate in Scotland and Northern Ireland, where courts can restrict public attendance while members of the press and a limited number of individuals remain in their place. Their experience demonstrates that it is entirely possible to restrict public access during particularly sensitive evidence without compromising the integrity or openness of the proceedings.
The clause will encourage courts to take a more flexible approach, excluding only those likely to intimidate the witness, where it is not necessary to clear the public gallery entirely. This will increase the likelihood that the measure can be used where appropriate, while maintaining open justice. I commend the clause to the Committee.
Dr Mullan
As the Minister points out, this clause interacts with the issue of transparency in the justice system. I recognise that the Minister thinks it attempts to strike a balance by clarifying the categories of people who may not be excluded, such as representatives of news organisations, witness supporters and approved researchers. The aim is to ensure that, while a witness may be shielded, the trial remains professional and legitimate.
However, we do not want the measure to have the unintended effect of narrowing public scrutiny, including by ordinary members of the public, who the Minister will accept are not necessarily there to intimidate or have any impact on the witness—they might not be even connected to the case. It should be assumed that people in this country can just turn up to a courthouse and watch a case, as they currently can, and as I have in the past.
Sad to say, but we have seen recently that practical transparency can be very difficult to achieve. We had the whole debacle with the Courtsdesk archive, which hugely assisted transparency in our legal system. The Opposition certainly do not feel that the Government’s initial response to that demonstrated that they were as committed to transparency in the justice system as they should be. It was only the effort of Opposition Members and media campaigners that secured a U-turn. We must ensure that these powers are used only when the interests of witnesses genuinely outweigh the public’s right to witness proceedings—although I note that the clause does not create an automatic entitlement for persons to be excluded.
We have discussed the availability of transcripts, and it would not be unreasonable to link the two issues. If people are excluded, I do not see why that could not become a trigger for making available those elements of the evidence that the public are for that reason unable to hear at first hand. I do not think the Minister is suggesting that the people in the gallery cannot hear the evidence; it is just about the impact on the witness of them being there. If that is happening and we accept that that is a break from the norm, it would be reasonable to say that transcripts of the elements that were not open to public scrutiny should be more widely available.
If the powers are enacted, it is important that the Government monitor their use going forward. They should have a clear position that they would be open to reforming or even removing the powers if they think they are not operating as intended.
We will not oppose these measures, but the Lords will want to look at them and ensure that we are excluding as little as possible. I accept the Minister’s point that, at the minute, nobody is getting excluded because of worries about how the provision operates, but that does not mean that we should just accept a new way of doing things when it could be better refined. If the Minister could clarify the point about transcript availability, it would demonstrate some good faith by ensuring that people can see for sure that we are not attempting to stop people from hearing what is going on in a courtroom.
Jess Brown-Fuller
I seek clarification from the Minister about the reference in clause 14 to
“representatives of news gathering or reporting organisations”.
Earlier, the hon. Member for Reigate raised the practice of live tweeting from court proceedings. I would appreciate it if the Minister set out her understanding of who would come under “a representative of a news gathering or reporting organisation”. With the rise of social media, and with more people getting their news online on things like X, we can have lots of news organisations with self-professed journalists or online commentators who are acting in the interests of providing online journalism, but who do not hold any form of accreditation or any official role as a journalist. It would be helpful if the Minister could explain who legitimate members of the press will be under this measure. Will they have to be recognised journalists? Will they have to have a press pass? Or can they say, “I’m here, in the interest of journalism, to live tweet the events because I am a self-employed journalist”?
Sarah Sackman
I am grateful for those questions and comments, because, through clause 14, we are seeking to strike a balance. At the moment, in the instance that I gave an example of, the balance is all one way. Of course we want open justice, but that is not the same, as can be the case, as having essentially a mob of people in the gallery whose mere presence is almost certainly intended to intimidate witnesses. Empowering the court to exercise discretion, while retaining the presence of at least one person connected to the defendant and protecting those representatives of newsgathering or reporting organisations, strikes the right balance.
On the question about everyone being a citizen journalist now, subsection (4)(b) refers to
“representatives of news gathering or reporting organisations”.
It refers to those who carry accreditation because they are a member of an organisation, not those who are self-appointed. I am happy to come back to the hon. Member for Chichester with clarification about that. When we talk about reporting restrictions and how they operate, they generally operate in connection with qualified journalists who are subject to the codes of conduct that go with that job. Indeed, that is something that arose with some of the issues in relation to Courtsdesk, because those who make use of that facility and that information, as opposed to the material that the public are entitled to see, are investigative journalists. I am happy to come back to the hon. Member with clarification, and if we think the legislation needs tightening up for the reasons she has outlined, then that can be looked at in the future.
Question put and agreed to.
Clause 14 accordingly ordered to stand part of the Bill.
Clause 15
Editing of video recorded cross-examination and re-examination
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss new clause 28—Use of video recorded evidence in chief—
“(1) Section 27 of the Youth Justice and Criminal Evidence Act 1999 is amended in accordance with subsections (2) and (3).
(2) After subsection (1), insert—
‘(1A) Evidence in chief admitted in accordance with subsection (1) may include transcription of any video recording, provided that such a transcript is not admitted in place of the recording.’
(3) After subsection (5) insert—
‘(5A) Where a witness is called in accordance with section (5)(a), the court must make arrangements so that the witness is not, in the course of proceedings, obliged to watch the video recording of the evidence in chief.’
(4) Section 28 of the Youth Justice and Criminal Evidence Act 1999 is amended as in accordance with subsections (5).
(5) After subsection (2) insert—
‘(2A) Where the direction provides for any cross-examination or re-examination of the witness, or reexamination, any questions that the accused or legal representatives representing to the accused intend to put during cross-examination or re-examination must be provided to the witness—
(a) within six months of the date on which evidence video recorded evidence in chief is submitted to the court under section 27, or
(b) 14 days before a cross-examination is due to take place under this section, whichever is the sooner.’”
This new clause amends the Youth Justice and Criminal Evidence Act 1999 to prevent vulnerable witnesses from repeatedly watching their video testimony during court proceedings, and to require those witnesses to be provided with cross-examination questions in good time ahead of any cross-examination.
Sarah Sackman
Let me start by thanking the hon. Member for Brighton Pavilion for tabling new clause 28. But before I come to that, I will set out the rationale for clause 15.
The clause clarifies the Youth Justice and Criminal Evidence Act 1999 by confirming that courts have a statutory power to direct the editing of pre-recorded cross-examination recordings under section 28 of the 1999 Act when material is inadmissible or where including it would not be in the interests of justice. That clarification matters because section 28 recordings capture the natural flow of their recollection under the pressure of cross-examination. Inevitably, that can sometimes include long periods of silence where the witness needs a break or material turns out to be inadmissible or prejudicial to the fairness of the trial.
Without an explicit power enabling the court to direct appropriate edits, there is a risk that either the edits are not made—potentially compromising the integrity of the trial and wasting court time—or that the edits made become a point of contention, requiring additional hearings or appeals to resolve. Additionally, in the event of a retrial, the pre-recorded evidence may require editing to ensure that it covers only the charges for which a retrial has been ordered.
Although the current criminal procedure rules already allow for editing of section 28 recordings, the Law Commission has highlighted that the absence of a specific statutory provision has created uncertainty and, once again, inconsistency in practice. The clause addresses that by placing the power on a firm statutory footing, ensuring that practitioners have a clear and consistent understanding of the power of the courts in this respect.
It is important to emphasise that the clause does not introduce a new process, nor does it expand judicial powers; it formalises the careful, limited editing that already occurs to ensure trial fairness and integrity. Witnesses can be assured that the substance of their evidence will remain intact. Only material that is legally inadmissible or wholly irrelevant to the issues in the case will be removed. I commend the clause to the Committee.
I will now turn to new clause 28, tabled by the hon. Member for Brighton Pavilion. Before I come to the substance of the new clause, I want to begin by recognising the immense courage it takes for the vulnerable and intimidated witnesses we are talking about to come forward in the first place and give evidence. For many, recounting their experience is traumatic enough. Being asked to relive it by watching back their video-recorded police interview—known as their achieving best evidence interview—can be a great deal more challenging. It can bring distressing experiences flooding back. However, we must be careful not to reach for legislative change where it is not necessary or helpful. Prosecutors may suggest that a witness watches their ABE interview to refresh their memory before cross-examination, but there is no legal obligation to do so. For some, watching the recording is manageable; for others, it is not, and the law already accommodates that reality.
Where a witness does not wish to watch the recording, a written transcript can be provided for them to read instead. For some, that is a more accessible way of engaging with the material. Prosecutors make decisions about how and when memory refreshing should take place on a case-by-case basis, taking into account practical considerations, such as the length of the transcript and the witness’s ability to read and process it. However, I recognise that the achieving best evidence guidance for interviewers does not explicitly reference that practice. That omission will be addressed. The Ministry of Justice owns that guidance and will ensure that clarification is included in the next revision. Any future clarification to the ABE guidance will also be reflected in the relevant Crown Prosecution Service guidance and communicated to all prosecutors.
Let me now turn to the proposal to introduce a time limit for the defence to submit questions to the witness. I must be clear: cross-examination questions cannot, under any circumstances, be shared with witnesses before they give evidence. However well intentioned the proposal may be, it risks undermining the very integrity of the process it seeks to improve. Exposing a witness to questions in advance may influence, whether consciously or unconsciously, how they respond. Beyond that, it risks undermining the defendant’s right to a fair trial. If there is any suggestion that a witness’s evidence has been prepared or influenced in advance, the credibility of the whole process is jeopardised.
There are also practical implications to consider. Requiring counsel to finalise all cross-examination questions within six months of the ABE being submitted to court, or 14 days before cross-examination—whichever is soonest—would be unworkable in many cases. Defence questions evolve as new material is disclosed. Such a process would undermine the fairness of proceedings and the effectiveness of case preparations. For those reasons, I urge the hon. Member not to press new clause 28 to a Division.
Siân Berry (Brighton Pavilion) (Green)
It is great to see you back in the Chair to help us to make our way through the Bill, Ms Jardine. New clause 28 is a probing amendment, and I shall not press it to a Division when the time comes. To give the context for why I have tabled the new clause, I will lay out the experience faced by a young child—I cannot give many details of the case, as the Committee will appreciate.
This young child was below school age when they became the victim of and witness to abuse. They gave clear evidence on video at the time that it had happened, and while the case was investigated and awaiting trial in court, they continued with their childhood. Their mother helped them to move on from the abuse, and she says that the memory of what happened not being constantly brought back was a key part of their recovery. However, during the court case some years later, they were made to rewatch the video. By hearing their younger self talk about the abuse, they were, essentially, properly traumatised for the first time, as they for the first time properly understood, with a real, more mature understanding, what had happened to them in detail.
That case made me realise that the process of being cross-examined and watching back original, video-based evidence in chief, even just while the prosecution team refreshes their memory of their evidence, can do victims real harm. Although I can see why it may be necessary to cross-examine a witness on what happened, based either on their memory or facts stated in the evidence, I feel strongly that putting them through the additional trauma of rewatching it themselves is not necessary and should certainly not be routine, and that that should be in the law or guidance.
My new clause would amend sections 27 and 28 of the Youth Justice and Criminal Evidence Act 1999, which are intended to relate to special measures and directions. It would ask that witnesses not be obliged to watch video recordings of their earlier evidence, and would allow transcripts, as a potentially less traumatic alternative, to be submitted for cross-examination. It would also ask for notice of questions for cross-examination to be provided in good time. Although I understand that there is no legal obligation for the videos to be rewatched, I know that it is happening even when concerns have been expressed. I want to make sure that it is clearer in the law or relevant guidance that no witness or victim is obliged, against their will, to relive the crimes committed against them.
As I said, the new clause is probing. I am grateful that the Minister has looked into the issue, and has today committed to updating the guidance. I have corresponded with her departmental colleagues who are leading a review of the victims code, passing to them more details than I can mention here on that particular case and some ideas for how relevant guidance around special measures could be amended, as that could take the place of changes in primary legislation. I hope that my bringing this point to the Committee is constructive, and I thank the Minister for her attention.
Dr Mullan
As we have heard, clause 15 clarifies the use of pre-recorded evidence for cross-examination and re-examination, which is often referred to as section 28 evidence. Our courts frequently rely on recorded testimony to spare witnesses the trauma of a live trial, so the rules governing the editing and presentation of that evidence must be clear and robust.
Clause 15 provides clarification on the circumstances under which a video recording may be edited before it is admitted as evidence in a trial. Editing may be required if certain procedural requirements were not met during the recording being taken, or if specific portions of the material are deemed inadmissible or contrary to the interests of justice. The clause requires the court to perform a delicate balancing act, weighing any potential prejudice towards the accused against the desirability of presenting the whole, or substantially the whole, recorded examination.
A clearer statutory footing for editing is welcome, but it must be applied with consistency and transparency. If recorded evidence is to protect witnesses properly, the rules for its use must be as rigorous as those for live evidence. We must acknowledge, as we discussed earlier in respect of screens, the highly variable state of court technology. In my time on the Justice Committee, I visited courts and heard that they sometimes did not have the screens necessary to show evidence. There is a huge difference between a poky little TV of low granularity and a proper screen for showing video evidence to the jury.
Sir Brian Leveson’s review and others have highlighted that malfunctioning or substandard equipment can derail trials or create grounds for appeal when it comes to the use of pre-recorded evidence. Without reliable hardware and skilled technical staff—I also heard about the challenge when something goes wrong and there is no one available to fix it—the legal clarification in clause 15 will remain theoretical rather than practical.
My final point is about the guidelines, which the Minister talked about. We must ensure that they are sufficiently detailed, rigorous and standardised, so that, notwithstanding the further clarifications in the clause, they are suitably consistent in their application.
What are the Government’s current plans to address the technological challenge on the court estate in relation to section 28 recordings? What steps will be taken to ensure that all parties have time to review and potentially challenge edited versions of recordings before they are played to a jury? The ability to challenge is vital to ensuring consistency and fairness.
Sarah Sackman
On the hon. Gentleman’s last point about the reliability of the kit in courtrooms, that is critical not just for evidence via video. We have an ambition for greater use of video right across our criminal justice system, not just for vulnerable witnesses but in other ways that have been touched on. We have talked a lot about prisoner transportation being a challenge for the system; one way to address that is by having less demand for it, unless it is needed in the interests of justice and fairness.
The increased use of video could be of real benefit but, of course, it has to be reliable. That is why the Government’s capital investment in increasing the budget for His Majesty’s Courts and Tribunals Service—I saw some of that equipment in action in Harrow court—will make such a difference.
When we are talking about vulnerable witnesses, who are given the option of section 28, the quality of their evidence can be impacted if it is inconsistent or glitchy, or if the way it appears in a courtroom is somehow distorted because it is too big or too small, or whatever. All those things will be important, which is why the significant investment agreed with the judiciary through the concordat process over the next three years will make such a difference, and why all the court transformation and reform measures are being accompanied by significant inward investment, as announced by the Deputy Prime Minister.
I should say that HMCTS, the performance of which I routinely review with the Deputy Prime Minister, conducts regular audits of facilities and brings that to our attention so that we can see where the roll-out is happening, which courts are lacking facilities and which need to be prioritised for investment.
Sarah Sackman
I am very happy to provide that information, to the extent that we hold it.
Question put and agreed to.
Clause 15 accordingly ordered to stand part of the Bill.
Clause 16
Application of special measures to victim personal statements etc
Question proposed, That the clause stand part of the Bill.
Sarah Sackman
The clause makes it clear in legislation that special measures are available when a victim chooses to read their victim impact statement aloud at sentencing. This is a moment of real significance for many victims—the point at which they are able to explain, in their own words, the impact of the offending on their lives. Although special measures can already be used for this purpose, that entitlement is not explicitly set out in legislation.
As the Law Commission has explored, the lack of a clear statutory basis can create uncertainty about what victims may rely on, adding avoidable stress at a time when they are already managing the emotional weight of addressing the court. Clause 16 removes that uncertainty. It ensures that victims can rely on the same special measures at sentencing as they can when giving evidence, whether using screens, a live link or some other appropriate measure.
By placing the provisions on a clear statutory footing, clause 16 gives victims greater reassurance that their voice can be heard at sentencing and that they will have access to the support needed to participate effectively. It will enhance their overall experience of the justice system, and strengthen the quality of information available to the court when determining a sentence. I commend the clause to the Committee.
Dr Mullan
I have spent a lot of time working on the issue of victim personal statements, often referred to as victim impact statements, in work on other Bills. We are talking today about someone’s ability to give an effective statement, but the Opposition have also been concerned about restrictions on what people can actually say, and have tabled amendments to other Bills on that issue.
I have worked with a number of victims. The people who come to mind are the parents of Violet-Grace, a four-year-old girl who was hit and killed by a stolen car going 80 mph on a 30 mph road while she was crossing with her grandmother. The criminals involved fled the scene—they came back to step over her body as they grabbed the drugs they had left in the car—and then fled the country. Her grandmother suffered massive injuries and will never be physically the same. Violet-Grace’s parents, two amazing individuals who are part of the Justice for Victims campaign group, talked about their experience of what they wanted to say in their victim statement being interfered with.
I have also had the pleasure of meeting and working with Sarah Everard’s parents, who tell the same story of having wanted to say certain things. Of course, the Opposition do not think it should be a free-for-all, and people should say whatever they want in an impact statement, but surely the onus should be on allowing victims to have their say.
There is a need to reform what these statements are for. In statute, it is there purely as a way for victims to talk about the impact of the crime on them. That is helpful, but in other jurisdictions it is an opportunity for the victim to say what they want about what has happened—importantly, this is at the point of conviction, when someone has been found guilty. We will therefore continue to push for broader reforms to impact statements.
On screens, this one of those things we read and thinks, “Why wasn’t this thought of at the time?” It seems self-evident that everything is put in place for witnesses during a trial—before someone has even been convicted, when the state has not yet decided through the courts whether someone is guilty—but this is after the trial. Surely the protections for people taking part at that stage should have been included in the original envisaging of the use of screens. We wholly support the relevant measure. We have discussed physical infrastructure already, but I am sure there is something the Government can do on that.
I do not think the Minister is responsible for the content of statements—I think that lies with the Minister for Victims—but we would appreciate her lending support to her ministerial colleague in relation to further expanding what people can say in their statements. The clause seeks to ensure that they have their moment in court from a physical point of view, but that will be undermined somewhat if what they are allowed to say is not as expansive as we can possibly make it.
Sarah Sackman
I think we all agree that the victim impact statement, and that moment when victims read or speak aloud about the ways in which they have been impacted, is critical. Their ability to speak at all may depend on the consistent provision of the special measures in clause 16. All that can be done without compromising the fairness of what is to follow, which is the sentencing exercise in which a judge must engage in respect of the defendant. Clause 16 seeks to enable that, because there may be victims who simply cannot bring themselves to do it absent those special measures. That is why it is a really important clause.
Question put and agreed to.
Clause 16 accordingly ordered to stand part of the Bill.
Clause 17
Welfare of the child: repeal of presumption of parental involvement
Jess Brown-Fuller
I beg to move amendment 14, in clause 17, page 30, line 10, at end insert—
“(3) The Lord Chancellor must, within six months of the commencement of this section, lay before both Houses of Parliament a report on the resources required to give full effect to the repeal of subsection 2A in Section 1 of the Children Act 1989.—
‘(1) The report under subsection (3) must include—
(a) an assessment of the level of legal aid provision necessary to ensure that parties in child arrangements proceedings are able to obtain timely and effective—
(i) advice, and
(ii) representation
particularly where allegations of domestic abuse or safeguarding concerns are raised;
(b) an evaluation of the capacity of the family courts, including—
(i) the number of judges,
(ii) court staff, and
(iii) available hearing time,
to undertake robust risk assessment and fact-finding processes in line with Practice Direction 12J;
(c) plans to address any shortfalls in judicial training, including—
(i) training relating to coercive control,
(ii) domestic abuse dynamics, and
(iii) child safeguarding.
(d) proposals for investment in the family court estate and technology to ensure—
(i) the repeal operates effectively, and
(ii) decisions are consistently grounded in the welfare and safety of the child.’”
This amendment requires the Government to set out how the family courts and legal aid system will be resourced to give full effect to the repeal of the presumption of parental involvement.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
New clause 16—Protective relocation and presumption of reasonableness—
“(1) This section applies to family proceedings in which—
(a) a parent (‘the relocating parent’) has relocated, or proposes to relocate, with a child; and
(b) it is alleged that such relocation has adversely affected, or is intended to affect, the child’s relationship with another party.
(2) Where the relocating parent demonstrates that the decision to relocate was made in consequence of domestic abuse, and this is supported by documented advice from a relevant authority or support service, there is a presumption that the relocation was reasonable and in the best interests of the child.
(3) For the purposes of subsection (2), ‘documented advice’ includes advice, guidance, or referral from—
(a) a police force;
(b) a local authority exercising social services functions;
(c) a Multi-Agency Risk Assessment Conference (MARAC); or
(d) an Independent Domestic Violence Adviser (IDVA) or equivalent specialist support service.
(4) The presumption in subsection (2) can be rebutted if the other party demonstrates, on the balance of probabilities, that the relocation is not reasonable or not in the best interests of the child.
(5) In determining whether the presumption has been rebutted, the court must have regard to—
(a) the nature and impact of the domestic abuse;
(b) the circumstances in which the advice or referral was given; and
(c) the welfare of the child as the court’s paramount consideration.
(6) The court may disapply the presumption in subsection (2) where it is satisfied that—
(a) the evidential basis for the documented advice is insufficient; or
(b) it is otherwise necessary to do so in order to safeguard and promote the welfare of the child.
(7) In this section—
(a) ‘domestic abuse’ has the same meaning as in section 1 of the Domestic Abuse Act 2021;
(b) ‘child’ means a person under the age of 18;
(c) ‘family proceedings’ has the same meaning as in section 75(3) of the Courts Act 2003.”
This new clause introduces a rebuttable presumption that a parent’s relocation with a child, undertaken in reliance on documented advice from authorities or support services in the context of domestic abuse, is reasonable and in the child’s best interests, unless the contrary is shown.
New clause 20—Determination of domestic abuse allegations and related presumptions—
“This section applies in family proceedings in which—
(a) party A alleges that party B has perpetrated domestic abuse, and
(b) the court is invited to consider whether a party A has engaged in conduct intended, or having the effect of, undermining a child’s relationship with another party.
(1) Where this section applies, the court must determine, as a preliminary issue, any allegation of domestic abuse before considering any allegation falling within subsection (1)(b).
(2) The court must treat the determination of allegations of domestic abuse as a matter of priority and, so much as reasonably practicable, must not proceed to determine any issue relating to the child’s relationship with either party until such allegations have been determined.
(3) Where the court finds, on the balance of probabilities, that party B has perpetrated domestic abuse against another party or the child—
(a) there shall be a rebuttable presumption that any reluctance or refusal by the child to spend time with party B constitutes a reasonable and justified response to the domestic abuse; and
(b) the court must not consider any allegation that party A has engaged in conduct falling within subsection (1)(b) unless satisfied that the presumption in paragraph (a) has been rebutted.
(4) For the purposes of subsection (4)(b), the presumption may be rebutted only where party B demonstrates, on the balance of probabilities, that the child’s reluctance or refusal cannot be reasonably attributed to the domestic abuse.
(5) Subsections (2) to (5) apply only where the allegation of domestic abuse meets such minimum evidential threshold as may be prescribed by rules of court.
(6) Notwithstanding the above, the court may disapply the presumption in subsection (4)(a), or the requirement in subsection (2), where it is satisfied that to do so is necessary to secure the welfare of the child as its paramount consideration.
(7) In this section—
(a) ‘domestic abuse’ has the same meaning as in section 1 of the Domestic Abuse Act 2021;
(b) references to a child are to a person under the age of 18;
(c) references to ‘family proceedings’ have the same meaning as in section 75(3) of the Courts Act 2003.”
This new clause requires courts to determine domestic abuse allegations before considering claims of parental alienation. If abuse is proven, a child’s reluctance to see the abusive parent is presumed a justified response. This presumption must be rebutted before the court can entertain allegations of alienating behaviour against the protective parent.
New clause 31—Determination of domestic abuse allegations and related presumptions—
“(1) There is a rebuttable presumption that any reluctance or refusal by a child to spend time with a party against whom the child, or a party representing the child, has made allegations of domestic abuse constitutes a reasonable and justified response to the domestic abuse.
(2) The presumption in subsection (1) may be rebutted only where the accused party demonstrates, on the balance of probabilities, that the child’s reluctance or refusal cannot be reasonably attributed to the domestic abuse.”
This new clause provides that, in family court, where a child refuses or is reluctant to spend time with one party as a result of an allegation against that party of domestic abuse against the child, the court must presume the reluctance or refusal is reasonable.
I remind hon. Members that any Divisions on new clauses will come later.
Jess Brown-Fuller
Amendment 14 would require the Government to set out how the family courts and legal aid system will be resourced to give full effect to the repeal of the presumption of parental involvement. It would necessitate a report being laid by the Government on the impact of repealing the presumption of parental responsibility. We are in favour of clause 17, but the amendment focuses on the impact of the provisions on legal aid and the capacity of family courts, judicial training and investment in the family court estate. Repealing the presumption of parental responsibility will lead to a need for more legal advice, as well as changes in hearings and court practices. It is important that the Government report on those changes to the House. We hope that they accept the need for a report.
Clause 17 will repeal the presumption of parental involvement in the Children Act 1989. The presumption was originally introduced to ensure that both parents could maintain a relationship with their children after separation. However, there have been long-standing campaigns to repeal the presumption, with evidence emerging—I say emerging, but it is long-standing evidence—that children could be left at risk of harm. The change will mean that the courts will no longer start from the assumption that parental involvement is always in the child’s best interests.
A key campaigner for this change, working with Women’s Aid, is Claire Throssell, who the Committee had the opportunity to hear from during the evidence session. Claire’s children, Jack and Paul, were killed by their father, who locked them in the attic and set fire to the house. If there was any moment that we all will remember for a very long time, it was Claire holding the images of her children before the incident and afterwards. I commend her for her bravery and for the way that she was able to speak so clearly not just for herself, but for all the families who have experienced devastating bereavement in that way—fighting for the children who will come after.
A family court judge, guided by the presumption, decided to allow Claire’s ex-husband unsupervised access to their children, despite evidence that he had threatened to harm both her and them. Since Women’s Aid first reported on the issue in 2004, 67 children have been killed by perpetrators of domestic abuse through contact arrangements, with 19 further child deaths documented in the decade to September 2024 alone.
The Lib Dems are in favour of the shift in law away from the presumption of parental involvement. Although the Bill seeks to repeal the presumption, there is a pro-contact culture in the family courts, as described by Farah Nazeer of Women’s Aid, who we also heard from in the evidence session. Will the Minister lay out what will be done to support the cultural reform of the family courts to ensure that this is a pivotal moment for victims of domestic abuse, who for so long have had their concerns around their children’s safety dismissed?
Claire spoke to that point in the evidence session. When I asked her what she believed the next steps should be, she said:
“What I would like to see moving forward is an understanding of what it looks like without presumption of contact; what good practice looks like; understanding trauma; understanding what coercive control is; understanding emotional abuse. We all understand physical abuse—it is there; we see it. What we do not understand is the emotional abuse and the scars that we carry. We must always look from the position of actually seeing a child, hearing a child, believing a child, protecting a child, and we must go from this basis.”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 58, Q110.]
New clause 16, which I also tabled, is a probing amendment that I will not press to a vote, but I wish to discuss it further. It would introduce a rebuttal presumption that a parent’s relocation with a child in the context of domestic abuse, undertaken in reliance on and with documented advice from authorities or support services, is reasonable and in the child’s best interests, unless the contrary is known.
New clause 16 would allow a parent to relocate with a child if they have evidence or advice from a domestic abuse support service or authority. It would require the court to assume that the move is reasonable and place the burden on the other parent to prove that the move is not in the child’s best interest.
The new clause is aimed at making it easier for victims of domestic abuse to leave their situations safely, and to prevent them from being forced to remain near their abusive ex-partners. Currently, the legal framework does not adequately distinguish between a parent who removes a child to protect them and a parent who removes a child to punish the other party. Our new clause would not remove safeguards in respect of alienation, but would instead shift the dial towards believing and protecting victims of domestic abuse.
The new clause is supported by Fair Hearing, which shared multiple examples of its work with courts that failed to give proper weight to the relevance of domestic abuse in relocation decisions. In one such case, a mother who had experienced severe physical, sexual and psychological abuse had been forced by her partner, during the relationship, to move with their children to an isolated rural area. After leaving him, she sought permission to return to her home town, where she had family support and greater safety. The court none the less required her to remain in an isolated cottage near her abuser, failing to give proper weight to the impact of the abuse, or to her need for safety and support. Cases of that kind illustrate the consequences of a framework that, in its operation, too often treats a survivor seeking to relocate for safety no differently from any other parent seeking to move for lifestyle or preference reasons.
I make the point to the Minister that this could happen to any of us. So often, abuse does not start on day one, when the partner suggests that we move somewhere lovely and will be really happy there. I am a very long way removed from the version of myself who made the decision to follow a boy three hours away from my family in my early 20s. He turned out not to be the great guy I thought he was when I made that decision. I escaped from that situation, but had I stayed and ended up having children, the idea that I would have been trapped in a city that was not mine, away from my family, who were my support network, is too scary to bear. I remind the Minister that it could happen to literally any one of us.
Wider campaigns from Women’s Aid, SafeLives and Refuge have focused on ensuring that survivors can relocate to escape abuse. As subsection 2 of the new clause outlines:
“Where the relocating parent demonstrates that the decision to relocate was made in consequence of domestic abuse, and this is supported by documented advice from a relevant authority or support service, there is a presumption that the relocation was reasonable and in the best interests of the child.”
Under the new clause, the documented advice would include evidence from a police force, social services, a multi-agency risk assessment conference or an independent domestic violence adviser. We look to work closely with the Government on this issue, and I hope they recognise the need to go further, but I will not push new clause 16 to a vote.
I will speak briefly to new clause 20, also tabled in my name, which would introduce a statutory presumption that where domestic abuse is alleged, the court must make findings on the allegations before considering any claim that a parent has sought to undermine the child’s relationship with the other party. If one parent alleges domestic abuse and the other alleges alienating behaviour—that is, influencing the child against them—the court must decide the domestic abuse allegations first. The court cannot move on to contact issues until that is decided. If the court finds domestic abuse, a child’s reluctance to see that parent is presumed to be justified. That presumption can be overturned only with evidence. If abuse is proven, courts cannot consider claims of alienation until the alleged abusive parent proves the child’s resistance is not due to abuse.
Campaigners have long argued that the family courts have been used by abusers to retraumatise victims and have over-prioritised contact between parents and children. It is estimated that around 60% to 90% of child arrangement cases in the family court feature allegations of domestic abuse. In 2020, the report entitled “Assessing Risk of Harm to Children and Parents in Private Law Children Cases” highlighted serious issues with how the family court system addresses domestic abuse in child arrangement cases. It said that those issues were underpinned by a pro-contact culture, silo working, an adversarial system and resource constraints.
A 2023 report by the Domestic Abuse Commissioner stated:
“Victims and survivors and their advisors reported concerns that raising domestic abuse as an issue often risked the retaliatory use of so-called ‘parental’ alienation narratives by parties against whom domestic abuse had been alleged as a counter-claim, leading to worse outcomes for adult and child victims and survivors.”
Five years on from the harm report, the Domestic Abuse Commissioner found that despite overwhelming evidence of domestic abuse in most cases, a pro-contact culture and a failure to recognise abuse still contribute to decisions that may put children in harm’s way.
This can be considered a probing amendment; I will not press new clause 20 to a vote. We will be looking to work closely with the Government to make progress in this area. The new clause would tilt the dial slightly towards victims of domestic abuse by ensuring that courts properly examined cases before considering issues of alienation. It would prioritise the safety of victims of domestic abuse, whether partners or children, by requiring these allegations to be addressed first.
It is also sometimes argued that children resist contact with certain parents because of manipulation. Our proposal would ensure that courts did not assume that manipulation first, but it would also have safeguards. It would not allow domestic abuse organisations to submit evidence; instead, it would be the authorities, social services and an independent domestic violence adviser who would do that. A minimum evidential threshold would also have to be met.
Dr Mullan
I want to begin by acknowledging the gravity of what we heard in evidence in Committee. As the Liberal Democrat spokesperson, the hon. Member for Chichester, pointed to, the evidence from Claire in relation to her children will stay with all of us. It was so moving and so upsetting for anyone thinking about how they would feel in that scenario. There was also the testimony of other parents who have lost children, and survivors of domestic abuse, who felt let down by a system that prioritised contact over their safety. That testimony matters. The Committee has a duty to take it incredibly seriously and give it the maximum possible weight.
We also have a duty to legislate carefully, however, and when it comes to legislating I do not think there are many areas of human frailty and human complexity that are more complicated than this. As anyone with any experience of the family court—and of life generally and the interactions between families who split up—will agree, all these things are incredibly complicated. When we seek to be prescriptive about how exactly a court should or should not seek to do things, that is fraught with risk and potential unintended consequences, just as today we are discussing the unintended consequences of a measure that may have been brought in for good reasons.
We must think very carefully, therefore, when it comes to the repeal of section 1(2A) of the Children Act 1989, and particularly about whether we think that will achieve what it promises. I make no apologies for saying that I want to consider this in some detail and that we will want to follow the discussions on it in some detail as the Bill progresses. Although we are not seeking to oppose the repeal at this stage, it is certainly not something—as opposed to some other measures—that is without the need for further scrutiny.
I want to say plainly that the courts, social services and CAFCASS have made serious mistakes in the past—importantly, both before that provision was inserted in 2014 and since—and those serious mistakes have cost children their lives. However, the question before us today is whether repealing the presumption will fix the mistakes or whether it might distract from the need for much deeper reforms and more complex and difficult work than can be achieved by a simple measure in a Bill.
Let me deal with the most important point: the presumption introduced in 2014 does not give any parent an automatic right to contact. It is important that we recognise that. It does not override the paramount principle in the law. I think we probably all remember the evidence given by one of the barristers in Committee, who was clear that while they thought the presumption could be repealed, the law as it stands does not allow the desire for a parent to have contact to override the welfare of a child. It also does not override the welfare checklist, or require courts to make an order that places children at risk.
The presumption establishes a starting point that, where it is safe to do so, children should generally benefit from the involvement of both parents. That starting point can be rebutted, but it expressly does not apply where a parent’s involvement would put the child at risk. In its written evidence, Both Parents Matter describe it as a “statutory benchmark”, not a straitjacket.
Siân Berry
I support this clause quite strongly. We heard powerfully from Claire Throssell in oral evidence how important its impact could be.
Most Members will have experiences like mine through casework of cases where this clause could help. I have heard from parents and family members so distressed at how their cases have been determined, despite clear evidence, where this presumption was obviously given far too much weight in decisions. These words in legislation, which were added and have had an influence on decisions, need to go.
I want to read parts of correspondence I received after the announcement in October 2025 that this measure was going to be changed. My constituent described it as an enormous relief. They were very impatient to know exactly when this was going to come forward. I am very pleased that we are discussing this now before the end of the Session.
My constituent said:
“I have personal experience of the impact the current legal framework can have. I am unable to provide specific information as a very close family member is still going through Family Court hearings to protect a child in a case of domestic abuse. However, as recently as January this year”—
this was in 2025—
“the aforementioned person was advised by two independent firms of solicitors to avoid the Family Court at all costs, due to the ‘presumption of involvement’, allied with the inconsistent and regionally patchy training and understanding by Family Court judges in domestic abuse (in spite of changes to the Domestic Abuse Act in 2021), referring to potential outcomes in Child Arrangements as ‘a lottery’.”
I really do support this clause. I also support the amendments in the name of the hon. Member for Chichester, which will help to tackle training gaps and which also reflect experiences that I can recall from casework. They are based on high-quality work and requests from organisations that work directly with victims and survivors, who have asked for these changes. I hope that the Minister will look at making changes that further strengthen the Bill in this way.
Rebecca Paul
I begin by echoing the comments made by my hon. Friend the Member for Bexhill and Battle. I completely understand why the Government have brought this clause forward. I welcome the debate. Similar to the hon. Member for Chichester, who spoke so eloquently, I was deeply moved by the evidence we heard from Claire Throssell. I cannot even imagine how she has coped. To do what she has done and to try to take something positive from that is an incredible thing.
The evidence this Committee has heard from those witnesses and other survivors of domestic abuse is that they feel that the family courts have not properly identified risk and believe that a pro-contact culture has, at times, overridden safety. That is extremely concerning, and it is absolutely right that we take it extremely seriously.
Child safety must come first. Where the present framework has contributed to poor outcomes, it is right that the Government act, but it is also incumbent on us today to make sure that the clause that is being repealed is indeed the cause of the harm to those children. I also make the point that, where Parliament removes an existing statutory principle, it has a duty to be clear about what will replace it.
My concern today is less with the Government’s objective than with whether repeal on its own is sufficiently precise, evidence based and thought through to achieve the Ministers’ intended objective. The Government’s own impact assessment, which has already been set out, says that
“repeal alone is unlikely to materially change outcomes”,
even though it is expected to
“change the process judges follow”.
That is an important starting point for this debate. It is really important that we do not make changes to law because everyone wants us to make those changes and thinks that will improve things when, in reality, we have the evidence and facts to know that it may not deliver those outcomes.
It is incumbent on all of us to make sure that we actually deliver the outcomes that we all desire; we all have the same ambition. I know this comes from a good place and we are all approaching this debate in the best way we can to protect children. My purpose this afternoon is to be constructive—I am not saying I have all the answers on this, and I hope my comments will be taken in that spirit. If the Government proceed with repeal, do they also need to do more to provide a principles replacement framework, clearer guidance and stronger supporting reforms?
It is important to start with the facts around the presumption. The current presumption does not give any parent an automatic right to contact, override the welfare checklist or override the paramountcy principle in section 1 of the Children Act 1989, and it certainly does not require courts to make orders that place children at risk. The Family Services Foundation is clear in its written evidence that current law already places the child’s welfare first, stating:
“Section 1(6)…expressly ensures the presumption applies”
only where parental involvement
“does not put the child at risk of suffering harm”.
It says that practice direction 12J and the Domestic Abuse Act 2021 already provide an important framework for identifying and responding to abuse in family proceedings.
Equally, I recognise the contrary concern expressed by survivors who say that, in abuse cases, the presumption can place pressure on courts to prioritise parental contact even where there are serious safety concerns and can make it harder for victims to be properly heard and protected. The real question is therefore not whether safety matters more than contact—it plainly does—but whether removing the current presumption will improve how risk is identified and acted upon, or whether it risks creating new uncertainty while leaving the deeper operational problems untouched and discouraging parental involvement in cases where it would actually be beneficial.
There are already substantial protections in the current legal framework, although they clearly fail in the worst way on occasion. The Family Services Foundation points out that the Children Act 1989, practice direction 12J and the Domestic Abuse Act 2021 already equip the courts to restrict or refuse contact where “harm is shown”. It also reminds us that the UK is bound by the UN convention on the rights of the child, including article 9, which recognises that children should maintain regular contact with both parents unless that is
“contrary to the child’s best interests”.
Both Parents Matter makes a similar point, saying:
“The Presumption was introduced in 2014”
to reflect the UNCRC and provide a statutory benchmark that the safe involvement of both parents generally furthers child welfare. I emphasise the word “safe”—no one has ever said that parents should be involved if it is not safe. I make those points not to argue that nothing should change. If the Government are minded to proceed, we need a clear understanding of how the replacement framework will continue to distinguish between safe parental involvement, which can be beneficial, and unsafe parental involvement, which must be stopped. At present, I am not sure the Bill by itself gives enough reassurance on that point, and I am worried that safe parental contact will be discouraged.
That leads to one of the most important points of all. The Government’s own documents suggest that repeal alone may not be the solution that they are hoping it will be. As mentioned earlier, the impact assessment says,
“repeal alone is unlikely to materially change outcomes”,
although it is expected to change the process that judges follow. That is a significant admission. It suggests that if the Government want safer and better outcomes in family proceedings, repeal can be only part of the picture, and perhaps not the decisive part.
We should keep in mind that many of the awful failures that have rightly horrified people seem to be failures of risk assessment, information sharing, institutional practice, professional judgment and resourcing. The Centre for Policy Research on Men and Boys puts it well:
“If abusive contact is being ordered or preserved inappropriately, then the concern lies with the quality of risk assessment, the speed and fairness of investigation, and the consistency with which courts and agencies apply the law.”
That is a useful and constructive way of putting the point. It does not deny the seriousness of the problem, but it does ask whether the solution is the right one. My concern is not that the Government want to strengthen protection; it is that repeal may be presented as more self-sufficient than, on the basis of the evidence, it really is.
I also think the Committee should be careful and candid about the strength of the evidence base behind repeal. Both Parents Matter says that the Government’s own review
“provided limited and inconclusive evidence of the impact of the Presumption. It could not determine how often the Presumption was applied in judgments, nor could it assess how harm…related to the application of the Presumption.”
It also criticises the underlying methodology:
“Quantitative analysis was based on only 245 court judgments, with over half from a single magistrates’ bench. Qualitative analysis involved only 29 parents.”
It added that the literature review
“examined only 55 studies, excluded all research published after April 2024,”
and omitted
“major studies showing positive outcomes”
from safe shared parenting and ongoing parental involvement.
Other evidence goes further, arguing that the Government review appears to have misunderstood or overstated the conclusions to be drawn from Professor Anja Steinbach’s work. I recall a striking line from Professor Steinbach, who said:
“There is plenty of research showing that contact with both parents is beneficial”,
and
“except for violence…contact with both parents is the baseline.”
I do not think that material should make the Committee cautious about treating the review as a fully settled or exhausted evidential platform for repeal.
Again, my point is not that that means that repeal must not happen; it is that we should not over-claim what the existing evidence can prove or support. I also think it is important to avoid turning this into a false choice between protecting children from abuse and supporting children to maintain safe relationships with both parents. The Centre for Policy Research on Men and Boys says that the public debate often frames the issue in that way. However, it says:
“A good family justice system must do both. It must protect children and adult victims from abusive parents. It must also protect children from the avoidable loss of safe, loving, and important parental relationships.”
I think that is right.
The Family Services Foundation similarly said:
“reform should focus on enhancing the protections available, rather than creating conditions that may inadvertently prevent children from maintaining safe, meaningful relationships with their parents.”
That is why I urge the Minister not to present clause 17 as though all principled concern about repeal is somehow concern for parental rights over child safety. It is perfectly possible to support the Government’s child safety objective while asking whether the law should continue to recognise some clear and carefully framed way, where there is no established risk of harm, of enabling children to benefit from stable and safe relationships with both parents.
Several of the written submissions that we received raise concerns about unintended consequences if repeal proceeds without a clear replacement framework. Both Parents Matter warns:
“Removing this important statutory benchmark, and relying instead on practice and non statutory frameworks”
may increase uncertainty, inconsistency and conflict. The Family Services Foundation says something similar, warning that repeal may confuse frontline professionals, affect negotiations outside court, reduce the incentive for out-of-court resolution and, ultimately, increase strain on a family court system that is already under pressure. It notes that only a minority of separated families ever come before the courts, but many more families and professionals orient their expectations around the legal framework.
That is a serious point. Even if the court’s paramount consideration remains unchanged, removing a statutory starting point may still alter behaviour before a case ever reaches a final hearing. It may affect how solicitors advise, how CAFCASS frames disputes, how mediation is approached and how parents negotiate. With that point in mind, I hope that the Minister might be in a position to share some more detail on how she expects the changes to operate, and why she is confident that they will improve outcomes rather than simply shift conflict elsewhere.
Amanda Hack (North West Leicestershire) (Lab)
I am finding it difficult to listen to the hon. Member’s speech. I do not believe that we can talk about balance when 68 children have lost their lives because of the presumption. I feel that we have to take forward this clause; it is so important. I want to understand the hon. Member’s terminology and whether she can reflect on the fact that 68 children have already lost their lives because of this presumption.
Rebecca Paul
I am sure people saw me during evidence. I get really upset about the loss of any child’s life. We have to remember that we all want to keep children safe—[Interruption.]
Rebecca Paul
No, I’m okay.
I would gently say to the hon. Member for North West Leicestershire that I hope she has heard—and even seen—enough from me to know that I am here to protect children. Of course I am horrified by any loss of a child, but my point is that I am trying to step back, be objective and say, “What is the reason that those children lost their lives?”. I am not convinced that it was the parental presumption—I am not saying that I am right on that; I am just open-minded to it.
I have seen a particular case quite closely—I should declare that I am a serving county councillor in Surrey—and that is the case of Sara Sharif. I have gone through the safeguarding reviews in a huge amount of detail; it affected all of us councillors in Surrey greatly. It was an absolutely awful case. So many things went wrong throughout her life. From the family courts to social services, her GP and the school, there was just a barrage of failure that led to that poor little girl being murdered, and that absolutely could have been prevented.
People might argue, “Well, if we had removed the parental presumption, that would have saved her.” Having gone through all that, I can tell the hon. Member that, in that case, it would not have done anything. It was safeguarding failures. People just made mistakes. They got things wrong. They were too worried about offending people to take the right actions.
What I am saying today is just that it is really important, when we look at these things, that we diagnose what went wrong. We have to do that quite objectively. That is difficult when we are hearing from lots of different people who have gone through awful things, but our job is to try to not be emotional—I say that having got emotional myself—and to look at it logically. At the end of the day, we all just want to deliver the outcome that protects children. That is what all of us on this Committee want to do. But it is important that we can talk about that without the hon. Member suggesting that I somehow do not care about children, because what I am trying to do is to have that objectivity, because it matters to me so much that we do protect those children that I want us to have that proper debate and to say, “Is this really the right way or are there other things we can be doing? Do we need to do multiple things? Maybe this isn’t enough.” I am not saying that we should not do it; I am saying that we just need to make sure that we have thought this through.
I will be really keen to hear from the Minister; I know this really matters to her as well, and she will have done that thinking, so I look forward to hearing her thoughts on the challenges I have brought up today. But, as I say, I keep an open mind, and we all share the same objectives.
Jess Brown-Fuller
Am I right in thinking that the hon. Member agrees with me that, when we are trying to legislate for what the most complex part of our justice system—families—that is an incredibly hard job? We all know from personal experience that the one thing that binds us all is that we have a family; we might disagree on whether they are good ones or bad ones, and whether we get on with them or not, but we all came from somewhere, and they are complicated things.
Across the House, we all share the desire to ensure that we recognise the complexity of family relationships and protect those most vulnerable in our society by making sure that people do not have the right to still have contact with their children when they have done things that mean that they absolutely should not. However, we also recognise that systems are abused, and we see that in all directions; people will always find ways of getting around systems, or of using the criminal justice system to retraumatise or to hold on to some form of control. Does the hon. Member therefore agree with me that, while what we are trying to do here is really complex, we are all doing it for the right reasons?
Rebecca Paul
I completely agree with the hon. Member. I appreciate the fact that she has tabled these amendments and that she recognises that it is not easy to strike this balance, particularly when we are trying to address abuse and alienation cases and it is sometimes hard to know what situation we are dealing with.
We are trying to come up with a system that protects as many people as we possibly can, but I think we also have to acknowledge that it will never be perfect. If anyone thinks that we can change one bit of law and then all of a sudden nothing horrible will ever happen again, I am afraid to say that these awful things will always happen, and things will always go wrong. It is about trying our best to have a framework that gets the balance right.
I will stop there—I have probably made my point. This has been a really good debate, and I look forward to hearing from the Minister about some of the points I have raised.
Sarah Sackman
I thank all hon. Members for their contributions. I will set out the rationale for clause 17 and then address the central argument presented by Opposition Members about the repeal of the presumption —the Government do not overclaim for it; is not a silver bullet for the problems and challenges of child protection in this country and will not solve all the challenges in our family court—and why we nevertheless think that it is the right thing to do. I will then address the amendment and new clauses.
The Government’s intention through clause 17 is to repeal the presumption of parental involvement from the Children Act 1989. The child’s welfare must always be the court’s paramount concern when making decisions about a child’s life, and that principle is enshrined in the 1989 Act. The Children and Families Act 2014 amended the 1989 Act to introduce a presumption that, in certain private law proceedings, the child’s welfare will be furthered by each parent’s involvement, unless evidence shows otherwise.
We know that, in most families, both parents play a vital role in a child’s life. However, although the legislation clearly states that the presumption is rebuttable and does not apply where a parent poses a risk of harm to the child, it has none the less faced serious and sustained criticism. To echo what others have said about the testimony and campaigning work of Claire Throssell, ably supported by her MP, my hon. Friend the Member for Penistone and Stocksbridge (Dr Tidball), Women’s Aid and a whole host of survivors of domestic abuse and those who represent them, the presumption contributes to a pro-contact culture in the family courts that too often prioritises parental involvement over child welfare.
We published our review of the presumption in full last October, and its conclusion was that unsupervised and face-to-face contact was the most common outcome in child arrangements cases, even where there were allegations or findings of domestic abuse. To give some context, the Domestic Abuse Commissioner has presented evidence of her own that proven allegations of domestic abuse arise in 80% of those cases. This is prevalent. Those cases come to the court in the way they do because, by definition, family relationships have broken down and there is conflict—that is the nature of these cases, and domestic abuse is already an issue in so many of them. The review demonstrates that, although the presumption is not the sole driver, it can be a contributory factor to a culture in family courts that prioritises parental involvement, even in cases of abuse, which means that, too often, decisions are putting children in harm’s way.
I want to be really clear about that, because we are not overclaiming that the repeal of the presumption will change everything overnight, and we are certainly not saying that it will keep everybody safe. There has been a lot of criticism of the family court, but one thing I do know is that those tasked with making these decisions are trying, through their professionalism, empathy and training, to keep children safe. I do not doubt their good faith. I struggle to imagine the burden of having to make those decisions. We are talking about the devastation of loved ones who have lost children—but imagine being the judge who made that decision, and living with that. I do not think for one second that they would have intended that consequence, and I suspect that, where a child is harmed or even killed as a result of a child arrangement, they regret those decisions every single day.
Through clause 17, we are seeking to ensure that judges approach the application of the law and the welfare checklist, which we regard as really important, with an open mind. The danger with the presumption is that they start with just that: a weighted approach to the consideration of the child’s best interests. We do not think that repealing the presumption is a silver bullet, but it will send a signal to the system—to the leadership of the family court and to everybody who sits within it— that the way to approach this is purely with an open mind, focused on the child.
Dr Mullan
The Minister was absolutely right to point to the enormous burden on those judges. I should have made a similar observation, and I am happy to do so now. Although I have been critical of some of their decisions, I cannot imagine the weight that sits with some of those people all the time, so I want to put on the record my thanks to those judges—on the whole, they do a very good job.
However, we still come back to the issue of accountability. We can preload the system to ensure that judges are more likely to make suitable decisions but, if there are no accountability mechanisms at the other end, we will not necessarily get the results that we want. What thought has the Minister given as to how we better ensure accountability for decision making? In my practice as a doctor, for example, there are so many mechanisms in place to ensure that the decisions I make are not just technically justifiable, but good. The point my constituent made when she visited me was that there are no such mechanisms for judges. If they make a strict error in law, that can be tackled through the Court of Appeal, but outside of that, how can the judiciary better hold itself to account for poor-quality, even if legally defendable, decision making? I am not talking about the Government interfering with the judiciary.
Sarah Sackman
The hon. Gentleman makes a good point. Obviously, we have appeal systems and, in some family proceedings, the nature of them can be iterative; as family circumstances and the facts change, it might be that there are provisions in directions to come back and relitigate some of those child arrangements. In other cases, they are final. Accountability is really important to us as a ministerial team, and the Secretary of State does not shy away from it. While of course respecting separation of powers, the judicial complaints process must be important as well, not just in family courts, but right across the piece. Where judges fall short of the standards we require of them, they should be held accountable.
I want to make a point about transparency and the publication of family court judgments. That is happening more and more, and it is important because it holds it up and says, “That is what a good judgment looks like”. It also exposes where there is decision making that is either faulty, poorly reasoned or simply not justified, so that that cannot happen.
The other thing happening is not just the publication of those judgments, with all the support that transcription allows, but also opening up—again, where appropriate—to journalists and the public to come and see how those hearings operate.
Dr Mullan
The Minister has pointed to complaints, and that is an important element, but there is something in between complaints and legal appeal. Again, from my own experience, working extensively on trying to make quality improvements in healthcare, these are incredibly complex things that we expect experts to do. Someone might not have done the wrong thing but, when we look at their practice as a whole, it does not compare favourably with that of other clinicians. That is what we recognise as the manner in which we drive improvement.
Some of the high-profile statisticians who I have worked with in that regard and who speak publicly on these matters have looked at court decisions say that they can find similar patterns of what we might call outliers—for example, regarding how likely people are to grant parental custody. Any one of those decisions might not be a decision that would be legally wrong or warrant a complaint—but we might see that they are 10 times more likely than all the other judges to award custody. Again, that is not to say that they are wrong to do so; but, just as clinicians are forced to do, we should at the very least be forcing them to reflect on that internally within the judiciary, and say, “Why is it that you are awarding custody to both parents in so many more circumstances than all your peers?”. It is not about complaints or legally wrong actions, but someone’s practice as a whole.
As the Minister has said, there is a very important separation: it should not be the Minister responsible saying to that person, “I don’t like your rate of referral”, but there should be something else within the judiciary—something that is not complaints and is not legal challenge, but that just says, “You all have to be a bit more accountable for the decisions you take”. To give another example in sentencing, if we could consistently see that a judge’s sentencing was consistently very far away from their peers’, that is not something that we should just accept as a society. This is not a Government issue, but a society issue.
Sarah Sackman
The hon. Gentleman is making a fair point. I have no doubt that, not just in the context of this clause—where we are talking about family law—but more generally in other conversations that we have had around the criminal justice system, the Judicial Office and judicial leadership will be following these proceedings quite closely and will be hearing these exchanges. That is why—in a different context—the discussion that we had regarding the amendment tabled by my hon. Friend the Member for Birmingham Erdington is so important, with that specific mischief in mind. Judicial performance is something that the judicial leadership ought to want to scrutinise and evaluate, and—where it falls short of the high standards that our judiciary so often deliver— remedy.
This measure, not in and of itself, but through clause 17 and alongside our wider reforms, such as the national roll-out of child-focused courts—the new name for what some hon. Members might know as Pathfinder—over the next three years will signal a step change in putting children’s safety and welfare back where it belongs, at the heart of every family court decision.
I do not want to digress, and this is not in the script but, for those unfamiliar with the Pathfinder programme—I am now told that I have to call them child-focused courts, and that is quite right, because that name describes exactly what they are—having been to observe those courts and spoken to judges, practitioners, social workers and families who have been through them, they are a really good model. They require the production up front of all the expert reports and all the assessments of the children, and there is much less conflict in the way that they operate. Judges like them; practitioners like them; families like them. They also go a whole lot faster. Of course, we must get to the bottom of things and make sure children are protected—but, if they are in an unsafe situation, we want them out of that unsafe situation sooner rather than later. We think that Pathfinder, coupled with the effects of clause 17, will be really important and I commend the clause to the Committee.
Amendment 14, tabled by the hon. Member for Chichester, would require the Lord Chancellor to lay a report before Parliament within six months setting out the level of legal aid provision, judicial capacity, specialist training and investment in the family court estate and in the technology needed to support the repeal of the presumption. Although all those things are essential, fundamental blocks of a well-functioning family court—the availability of legal aid, the judicial training, the specialism and the quality of the estate are all going to be important to producing better decisions and supporting families through an inherently difficult process—the Government do not consider the amendment necessary because the repeal of the presumption does not, in and of itself, alter what is going on within the courtroom. It alters the weighting that a judge gives in his or her decision making, but our endeavours to ensure that family courts are adequately resourced to make sure that children and victims are protected have to happen regardless. We do not need the amendment to achieve that.
As I said, we are already taking forward significant reforms to ensure that the family court system supports survivors of domestic abuse and delivers the right outcomes for survivors and their children. We have existing processes in place to monitor family court resourcing. All that work is led by my colleague Baroness Levitt.
Jess Brown-Fuller
I recognise that the amendment is limited in scope because the Bill is limited in scope, especially when it comes to the family court. Perhaps rather cheekily, I was trying to get a report on the general health of the family court system because so many organisations tell Members across the House that they are really concerned about a lot of the systems sitting in the family court, not just the parental responsibility piece. I remain hopeful that we will see family court legislation introduced, as the Minister will be aware that I have requested in multiple oral questions in the Chamber.
I am aware that the report required by the amendment would be specifically about the repeal, but we need a health check of our family court system because a lot of people are sounding the alarm about the concerns they have with that system.
Sarah Sackman
The family justice strategy, which will be forthcoming in July, will address a lot of what the hon. Member asks for. It will set out where the Government think reform is needed, and it will bring together what we are already doing with our child-focused courts programme, which is accompanied by a £17 million investment. We believe in that model, which we think has huge merit. It will be available to people regardless of where in the country they live.
More generally, we are introducing the funding that the Lord Chancellor has allocated to sitting days for family hearings, the targeted recruitment of more judges, more fee-paid judges, the greater use of virtual hearings—which can be a supportive measure for people giving evidence, not just an efficiency measure—and training.
The hon. Member for Chichester will know that the Domestic Abuse Commissioner has also undertaken detailed work in this area through her “Everyday business” report, which talks to some of the resourcing constraints faced by the family court. That work forms part of the commissioner’s report on a family court reporting mechanism, which is designed to provide ongoing evidence-based scrutiny of the family court’s response to domestic abuse in particular, and to highlight where systemic improvements are needed, so we have other accountability measures shining that light. If the hon. Member for Chichester awaits the strategy—she will no doubt want to take a look and critique parts of it—I think a lot of it will address some of the concerns she raises.
As I said, before proposing the repeal of the presumption, we carefully assessed the impact it would have. We do not overstate it, but it is important because the change affects the judicial process, not the underlying reasons why families come to court. Because we do not expect it to increase case volumes, case length or demand for legal aid, we think that the current arrangements can meet it, but there are so many other improvements that we want to drive.
Jess Brown-Fuller
This has been a robust and important debate, and there are strong feelings on both sides of the argument. As I said earlier, we are legislating in a complex area. I think the shared opinion is that the intention is correct. Some of the questions that have been asked are legitimate, but I know the Minister is keen to work collaboratively. I will not press my two new clauses to a vote—they are probing amendments to open up the conversation—but amendment 14, which would require a report as a health check for the family courts, is important, so I will press it to a vote.
Question put, That the amendment be made.
The Chair
With this it will be convenient to discuss the following:
Government amendments 72 to 96.
Schedule 3.
Sarah Sackman
I will begin by addressing clause 18 and schedule 3 together before moving to Government amendments 72 to 96.
Clause 18 makes significant reforms to the leadership of tribunals, a change strongly supported by the senior judiciary. This is a key step in the One Judiciary programme, which was set up to achieve the long-standing shared ambition of the judiciary and the Ministry of Justice to have a single, unified judiciary across the courts and tribunals of England and Wales.
As the Lady Chief Justice recently noted, the reforms recognise the unity of judicial work across jurisdictions and will support more flexible deployment of judges, common standards and a more inclusive culture. Lord Justice Dingemans, the Senior President of Tribunals, endorsed this legislation in his annual report.
Clause 18 reforms the role of the Senior President of Tribunals and brings tribunals and their judiciary in England and Wales within the Lady Chief Justice’s leadership responsibilities. It gives effect to schedule 3, which reallocates the SPT’s existing England and Wales functions to the Lady Chief Justice. The SPT will continue to exercise statutory responsibility for some tribunals in Scotland and Northern Ireland, and the territorial extent of tribunals will remain as now.
The reformed office will retain the title of Senior President of Tribunals and will be equivalent to a head of division role. The provisions also bring the SPT role into line with heads of division by mandating a transparent appointment process, removing the option of a fixed-term appointment and providing for the SPT to be an ex officio member of the Court of Appeal of England and Wales.
The Bill also creates a new statutory post of deputy head of tribunals justice, similar to the statutory deputy head roles that exist in respect of criminal justice and family justice. The LCJ will become the statutory owner of the SPT’s current functions relating to tribunals operating under the Tribunals, Courts and Enforcement Act 2007 in England and Wales. There are powers for the Lady Chief Justice to delegate those functions and, in practice, it is expected that most of them will be delegated to the SPT.
The provisions amend the Tribunals, Courts and Enforcement Act to set out how the territorial split will operate for different statutory functions. Generally, they will reallocate functions by territory, so that the SPT will retain the functions in relation to judiciary or staff working primarily in Scotland and Northern Ireland, or to cases to be heard there, while the Lady Chief Justice will assume the functions in the same way for England and Wales.
However, there are some nuances to this approach to safeguard operational flexibility and to support consistency across pan-UK tribunals. For some functions—for example, appointing chamber presidents for cross-UK chambers or approving practice directions—the Bill enables shared decision making. The schedule makes similar changes in respect of the employment tribunals, where required.
The reforms will provide a modernised, unified leadership structure for our tribunals, which will encourage morale, recruitment and career development for the tribunals judiciary, and will support better use of flexible deployment and consistent practice. I should say that since I have been the Minister for Courts, I have had the privilege and pleasure of working with two remarkable Senior Presidents of Tribunals, Lord Justice Lindblom and Lord Justice Dingemans.
I have responsibility for tribunals, which form a huge part of where many of our citizens interact with our legal system, whether that is the employment tribunal, the special educational needs and disability tribunal, the social security tribunal or the property tribunal—I hope I have not forgotten one. I therefore welcome the introduction of this modernised structure to enable the best possible leadership, and to support our tribunal judges working within it. I commend clause 18 and schedule 3 to the Committee.
Dr Mullan
I had considered thinking of a question for every single amendment, but I elected against that. I speak in support of clause 18 and schedule 3. While the provisions may not generate the same level of public debate and scrutiny as the Bill’s earlier clauses regarding the restriction of jury trials, they carry significant institutional and constitutional weight within our judicial hierarchy.
The clause and schedule will bring the leadership of tribunals in England and Wales more firmly within the unified judicial structure, placing them under the overarching leadership of the Lady Chief Justice. In practical terms, this involves a title change for the Lady Chief Justice, who will become the president of the courts and tribunals of England and Wales. They also involve the transfer of specific leadership responsibilities that are currently vested in the Senior President of Tribunals.
The Government’s primary justification for the reform is administrative coherence and systemic flexibility. By reconfiguring the office of the Senior President of Tribunals, as the head of tribunals justice, the Bill attempts to create a more integrated and seamless judicial pyramid. In theory, such integration should allow for better co-ordination across different jurisdictions, ensuring that the tribunal judiciary is viewed not as a secondary or isolated branch of the law, but as an equal partner in the modern administration of justice.
The Opposition offer support for this move towards unity, acknowledging that a more cohesive leadership structure can streamline high-level decision making and improve the deployment of resources. However, that support must be tempered with a request for scrutiny. Unification should not be used as a tool for uniformity. Tribunals are substantially and culturally distinct from the traditional courts; they were designed specifically to be more accessible, specialist and often less formal in their proceedings. Their value to the public lies not only in their final adjudication of a dispute. Whether it is social security, immigration or employment, I am sure that we as MPs have all been contacted by constituents who have gone through, or expect to go through, a tribunal process.
Leadership arrangements are never merely technical; they shape the culture, training priorities and institutional identity of the body they lead. The Government have stated that practical leadership will continue to be exercised through a system of delegation back to the reconfigured office of the Senior President of Tribunals. While we recognise that this appears workable on paper, we must be satisfied that it will not allow creeping deprioritisation, a lack of focus, or a watering down of tribunals’ particular culture when they become part of this unified leadership. Will the Minister therefore assure us that thought has been given to ensuring an absence of uniformity, because we have specifically designed the courts not to be uniform, but different in their own way?
Sarah Sackman
That reflects the clause as drafted and the intention behind it, from speaking to our judicial leadership. In my experience, I have certainly found our judicial and tribunal leadership to be progressive, reforming and more open to cultural change, scrutiny and improvement than perhaps might previously have been the case. I welcome that, because it is as it should be. The hon. Member is right, of course: tribunals are different. They are meant to be informal and feel different from going to the High Court, which is all terribly alienating to the ordinary person who is untrained. A tribunal is supposed to involve a relatively cost-neutral and more relaxed process so that the individual can participate in it. Our proposals do not cut against that, but bring the judiciary across England and Wales into the notion of unity, with a lot of the benefits of being under a single leadership—sharing best practice and deploying judges across different jurisdictions—being enhanced, so that everyone can benefit without bleeding out the differences that rightly exist in our different courts and tribunals.
Question put and agreed to.
Clause 18 accordingly ordered to stand part of the Bill.
Schedule 3
Leadership of tribunals
Amendments made: 72, in schedule 3, page 68, line 4, after “may” insert
“, subject to the following provisions of this section,”.
This amendment is intended to clarify that the Lord Chief Justice’s general power under section 7A(1) of the Tribunals, Courts and Enforcement Act 2007 (inserted by the Bill) to delegate functions relating to tribunals is qualified by subsequent subsections of that section.
Amendment 73, in schedule 3, page 68, leave out line 5.
This amendment would remove redundancy in the drafting of new section 7A(1) of the Tribunals, Courts and Enforcement Act 2007 (inserted by the Bill).
Amendment 74, in schedule 3, page 68, line 9, at end insert—
“(1A) A function of the Lord Chief Justice may not be delegated under subsection (1) to a person who—
(a) is a judge, or other member, of the Upper Tribunal or First-tier Tribunal only by virtue of the person being a relevant Scottish office-holder or a relevant Northern Ireland office-holder, and
(b) is not a Chamber President, or a Deputy Chamber President, of a chamber of the Upper Tribunal or of a chamber of the First-tier Tribunal.”
This amendment, together with amendment 75, would prevent the Lord Chief Justice of England and Wales delegating functions relating to tribunals to a person who is a judge of the Upper Tribunal or First-Tier Tribunal only because the person holds a particular judicial office in Scotland or Northern Ireland.
Amendment 75, in schedule 3, page 69, line 6, at end insert—
“(8A) For the purposes of subsection (1A)—
(a) a person is a ‘relevant Scottish office-holder’ if the person is—
(i) a judge of the Court of Session,
(ii) a sheriff in Scotland,
(iii) the President of Employment Tribunals (Scotland),
(iv) the Vice President of Employment Tribunals (Scotland), or
(v) a member of a panel of members of employment tribunals (whether or not a panel of Employment Judges) established for Scotland;
(b) a person is a ‘relevant Northern Ireland office-holder’ if the person is—
(i) a Lord Justice of Appeal in Northern Ireland,
(ii) a puisne judge of the High Court in Northern Ireland,
(iii) a county court judge in Northern Ireland,
(iv) a district judge in Northern Ireland,
(v) the Chief Social Security Commissioner, or any other Social Security Commissioner, appointed under section 50(1) of the Social Security Administration (Northern Ireland) Act 1992, or
(vi) a Social Security Commissioner appointed under section 50(2) of that Act (deputy Commissioners).”
See the explanatory statement to amendment 74.
Amendment 76, in schedule 3, page 69, line 21, after “may” insert
“, subject to the following provisions of this section,”.
This amendment would make a change to the drafting of new section 7B of the Tribunals, Courts and Enforcement Act 2007 (further delegation of functions of the Lord Chief Justice) corresponding to the change made by amendment 72 to the drafting of new section 7A of that Act.
Amendment 77, in schedule 3, page 69, line 25, at end insert—
“(1A) A function of the Lord Chief Justice may not be further delegated under subsection (1) to a person who—
(a) is a judge, or other member, of the Upper Tribunal or First-tier Tribunal only by virtue of the person being a relevant Scottish office-holder or a relevant Northern Ireland office-holder, and
(b) is not a Chamber President, or a Deputy Chamber President, of a chamber of the Upper Tribunal or of a chamber of the First-tier Tribunal.”
This amendment would impose a limitation on the power to further delegate a function of the Lord Chief Justice under new section 7B of the Tribunals, Courts and Enforcement Act 2007 corresponding to the limitation imposed in relation to new section 7A of that Act by amendment 74.
Amendment 78, in schedule 3, page 69, line 28, leave out from “to” to end of line and insert
“a person appointed as—
(a) Deputy Head of Tribunals Justice, or
(b) Chamber President of a chamber of the Upper Tribunal.”
This amendment would enable functions of the Lord Chief Justice under paragraph 1(1) or 2(1) of Schedule 2 to the Tribunals, Courts and Enforcement Act 2007 that are delegated to a senior judge to be further delegated to the Deputy Head of Tribunals Justice.
Amendment 79, in schedule 3, page 70, line 2, at end insert—
“‘relevant Scottish office-holder’ and ‘relevant Northern Ireland office-holder’ have the same meaning as in subsection (1A) of section 7A (see subsection (8A) of that section);”.
This amendment is consequential on amendment 77.
Amendment 80, in schedule 3, page 70, line 7, leave out “(1)(b),” and insert
“(1)—
(a) in the words before paragraph (a), after ‘may’ insert ‘, subject to the following provisions of this section,’;
(b) in paragraph (b),”.
This amendment would make a change to the drafting of section 8 of the Tribunals, Courts and Enforcement Act 2007 (Senior President of Tribunals: power to delegate) corresponding to the change made by amendment 72 to the drafting of new section 7A of that Act.
Amendment 81, in schedule 3, page 70, line 8, at end insert—
“(2A) In subsection (1A)—
(a) for ‘paragraph 1(1) or 2(1) of Schedule 2’ substitute ‘any of the provisions listed in subsection (1B)’;
(b) for ‘a Chamber President of a chamber of the Upper Tribunal’ substitute ‘a person appointed as—
(a) Deputy Head of Tribunals Justice, or
(b) Chamber President of a chamber of the Upper Tribunal’.
(2B) After subsection (1A) insert—
‘(1B) The provisions are—
section 7(7);
section 7(8B) and (9);
paragraph 1(1) of Schedule 2;
paragraph 2(1) of Schedule 2;
paragraph 2(1) of Schedule 3;
paragraph 7(1) of Schedule 3;
paragraph 2 of Schedule 4;
paragraph 5(1) and (3) of Schedule 4;
paragraph 5(5) to (8) of Schedule 4;
paragraph 5A(3A) of Schedule 4.’”
This amendment would insert provision amending section 8 of the Tribunals, Courts and Enforcement Act 2007 to enable the Senior President of Tribunals to delegate to the Deputy Head of Tribunals Justice or an Upper Tribunal Chamber President certain functions to which subsection (1) of that section does not currently apply.
Amendment 82, in schedule 3, page 70, line 9, leave out sub-paragraph (3) and insert—
“(3) For subsection (2) substitute—
‘(2) Subsection (1) does not apply to functions of the Senior President of Tribunals under any of the following—
section 29B;
section 29D;
section 46;
paragraph 3 of Schedule 5;
paragraph 2 of Schedule A1 to the Employment Tribunals Act 1996.’”
This amendment is consequential on amendment 81.
Amendment 83, in schedule 3, page 70, line 21, at end insert—
“18A After section 8 insert—
‘8A Delegation: supplementary
(1) Where a function is exercisable, in a particular case, by the Lord Chief Justice and the Senior President of Tribunals, acting jointly—
(a) so far as the function is exercisable by the Lord Chief Justice, it is to be treated for the purposes of section 7A as a relevant tribunal function and may be delegated under that section, and further delegated under section 7B, accordingly (including to the Senior President of Tribunals);
(b) so far as the function is exercisable by the Senior President of Tribunals—
(i) it is to be treated for the purposes of section 8 as a function the Senior President of Tribunals has in that capacity and may be delegated under section 8 accordingly, but
(ii) it may not be delegated under that section to the Lord Chief Justice.
(2) Where a person (“the delegator”) has a power to delegate a function under section 7A, 7B or 8—
(a) any requirement that the delegator may exercise the function only with the concurrence of another person (“P”) does not prevent the delegator from delegating the function to P, and
(b) if the delegator delegates the function to P, any such requirement is to be disregarded so far as the function is exercised by P.
(3) In this section “the Lord Chief Justice” means the Lord Chief Justice of England and Wales.’”
This amendment would insert provision intended to clarify the effect of delegation powers under the Tribunals, Courts and Enforcement Act 2007, inserted or amended by the Bill, in cases where the function being delegated is exercisable jointly with, or with the concurrence of, the person to whom it is delegated.
Amendment 84, in schedule 3, page 75, line 6, leave out “senior judge” and insert
“person who holds high judicial office”.
This amendment would enable functions of the Senior President of Tribunals to be exercised during any vacancy or incapacity by a holder of high judicial office in Scotland or Northern Ireland (as well as in England and Wales).
Amendment 85, in schedule 3, page 75, leave out lines 12 and 13 and insert—
“‘high judicial office’ has the same meaning as in Part 3 of the Constitutional Reform Act 2005 (see section 60(2)(a)of that Act);”.
This amendment is consequential on amendment 84.
Amendment 86, in schedule 3, page 88, line 9, at end insert—
“32A In Schedule 8 (tribunals and inquiries: consequential and other amendments), in paragraph 41, omit sub-paragraphs (3) and (6) (which insert into the Employment Tribunals Act 1996 provision repealed by this Act).”
This amendment would repeal provisions of the Tribunals, Courts and Enforcement Act 2007 which insert into the Employment Tribunals Act 1996 provision repealed by the Bill.
Amendment 87, in schedule 3, page 92, line 38, at end insert—
“Agriculture Act 1947
43A In Schedule 9 to the Agriculture Act 1947 (constitution etc. of tribunals etc.), in paragraph 15A (which provides for a member of the First-tier Tribunal to act as a member of the Agricultural Land Tribunal)—
(a) in sub-paragraph (1), for ‘the Senior President of Tribunals’ substitute ‘the appropriate office-holder’;
(b) after sub-paragraph (1) insert—
‘(1ZA) In sub-paragraph (1), “the appropriate office-holder” means—
(a) in relation to a member of the First-tier Tribunal who exercises functions wholly or mainly in Scotland or Northern Ireland, the Senior President of Tribunals;
(b) in any other case, the Lord Chief Justice of England and Wales.’
Lands Tribunal Act 1949
43B In section 1 of the Lands Tribunal Act 1949 (which makes provision including provision about selecting a surveyor for the purposes of section 58 or 106 of the Lands Clauses Consolidation Act 1845)—
(a) in subsection (6), for ‘the Senior President of Tribunals’ substitute ‘the appropriate office-holder’;
(b) after subsection (6) insert—
‘(6ZA) In subsection (6) “the appropriate office-holder” means—
(a) in relation to the determination of compensation to be paid in respect of land in England or Wales, the Lord Chief Justice of England and Wales;
(b) in any other case, the Senior President of Tribunals.
(6ZB) Section 7A of the Tribunals, Courts and Enforcement Act 2007 (Lord Chief Justice: power to delegate) applies to any function of the Lord Chief Justice under subsection (6) as it applies to a relevant tribunal function within the meaning of that section.
For provision enabling the delegation of any function of the Senior President of Tribunals, see section 8 of that Act.’
Rent Act 1977
43C In Schedule 10 to the Rent Act 1977 (rent assessment committees), in paragraph 5A (which provides for a member of the First-tier Tribunal to act as a member of a committee in Wales)—
(a) the existing text becomes sub-paragraph (1);
(b) in that sub-paragraph, for ‘the Senior President of Tribunals’ substitute ‘the appropriate office-holder’;
(c) after that sub-paragraph insert—
‘(2) In sub-paragraph (1), “the appropriate office-holder” means—
(a) in relation to a member of the First-tier Tribunal who exercises functions wholly or mainly in Scotland or Northern Ireland, the Senior President of Tribunals;
(b) in any other case, the Lord Chief Justice of England and Wales.’”
This amendment would insert provision amending provisions of the Agriculture Act 1947, the Lands Tribunal Act 1949 and the Rent Act 1977 so as to confer on the Lord Chief Justice of England and Wales certain functions currently conferred on the Senior President of Tribunals.
Amendment 88, in schedule 3, page 93, line 12, leave out paragraph 46 and insert—
“46 In section 9 (assistance for transaction of judicial business)—
(a) in subsection (1), in the Table (judges deployable to certain courts), in column 1 of entry 4A (the Senior President of Tribunals), after ‘Senior President of Tribunals’ insert ‘, if not an ex-officio judge of the Court of Appeal’;
(b) omit subsection (1ZA).”
This amendment would enable a holder of the office of Senior President of Tribunals who is an ex-officio judge of the Court of Appeal to act on request as a judge of the Crown Court (like all other judges of the Court of Appeal).
Amendment 89, in schedule 3, page 93, line 29, at end insert—
“Mental Health Act 1983
48A In Schedule 2 to the Mental Health Act 1983 (Mental Health Review Tribunal for Wales), in paragraph 5 (which provides for certain members of the First-tier Tribunal to act as members of the tribunal)—
(a) in sub-paragraph (1), for ‘the Senior President of Tribunals’ substitute ‘the appropriate office-holder’;
(b) after sub-paragraph (1) insert—
‘(1ZA) In sub-paragraph (1), “the appropriate office-holder” means—
(a) in relation to a member of the First-tier Tribunal who exercises functions wholly or mainly in Scotland or Northern Ireland, the Senior President of Tribunals;
(b) in any other case, the Lord Chief Justice of England and Wales.’
Landlord and Tenant Act 1987
48B In section 33 of the Landlord and Tenant Act 1987 (acquisition order where landlord cannot be found)—
(a) in subsection (2)(a), for ‘the Senior President of Tribunals’ substitute ‘the Lord Chief Justice of England and Wales’;
(b) after subsection (3) insert—
‘(4) Section 7A of the Tribunals, Courts and Enforcement Act 2007 (Lord Chief Justice: power to delegate) applies to the function of the Lord Chief Justice under subsection (2)(a) as it applies to a relevant tribunal function within the meaning of that section.’
Local Government Finance Act 1988
48C In Part 1 of Schedule 11 to the Local Government Finance Act 1988 (the Valuation Tribunal for England), in paragraph A18A (power for member of First-tier Tribunal to act as member of the Tribunal)—
(a) in sub-paragraph (2)(a), for ‘the Senior President of Tribunals’ substitute ‘the appropriate office-holder’;
(b) in sub-paragraph (9), after paragraph (a) insert—
‘(aa) “the appropriate office-holder” means—
(i) in relation to an FTT member who exercises functions wholly or mainly in Scotland or Northern Ireland, the Senior President of Tribunals, and
(ii) in any other case, the Lord Chief Justice of England and Wales, and’.
Social Security Act 1998
48D (1) Section 15A of the Social Security Act 1998 (functions of Senior President of Tribunals) is amended as follows.
(2) For the heading substitute ‘Confidentiality in the First-tier Tribunal’.
(3) In subsection (1), for ‘The Senior President of Tribunals’ substitute ‘The appropriate office-holder’.
(4) After subsection (1) insert—
‘(1A) In subsection (1), “the appropriate office-holder” means—
(a) in relation to the First-tier Tribunal in England and Wales, the Lord Chief Justice of England and Wales;
(b) in relation to the First-tier Tribunal in Scotland or Northern Ireland, the Senior President of Tribunals.’”
This amendment would insert provision amending provisions of the Mental Health Act 1983, the Landlord and Tenant Act 1987, the Local Government Finance Act 1988 and the Social Security Act 1998 so as to confer on the Lord Chief Justice of England and Wales certain functions currently conferred on the Senior President of Tribunals.
Amendment 90, in schedule 3, page 94, line 1, at end insert—
“49A The Crime and Courts Act 2013 is amended as follows.”
This amendment is consequential on amendment 92.
Amendment 91, in schedule 3, page 94, line 2, leave out “the Crime and Courts Act 2013, in”.
This amendment is consequential on amendment 90.
Amendment 92, in schedule 3, page 94, line 3, at end insert—
“50A In Schedule 13 (judicial appointments), omit the following provisions (which insert into the Tribunals, Courts and Enforcement Act 2007 provision repealed by this Act)—
(a) paragraph 30(3);
(b) paragraph 43;
(c) paragraph 44(2);
(d) paragraph 45(2) and (4);
(e) paragraph 46(2) and (6);
(f) paragraph 47(4) to (6), (8), (9), (11) and (12).
50B In Schedule 14 (deployment of the judiciary), in paragraph 12, omit sub-paragraph (2) (which inserts into the Employment Tribunals Act 1996 provision repealed by this Act).”
This amendment would repeal provisions of the Crime and Courts Act 2013 which insert into the Tribunals, Courts and Enforcement Act 2007 and the Employment Tribunals Act 1996 provision repealed by the Bill.
Amendment 93, in schedule 3, page 94, line 3, at end insert—
“Wales Act 2017
50A (1) Section 63 of the Wales Act 2017 (cross-deployment of tribunal members and judges) is amended as follows.
(2) In subsection (1), for the words from ‘if’ to the end substitute ‘—
(a) in England and Wales, if the Lord Chief Justice of England and Wales asks the member to do so and the President of Welsh Tribunals agrees to the request being made;
(b) in Scotland or Northern Ireland, if the Senior President of Tribunals asks the member to do so and the President of Welsh Tribunals agrees to the request being made.’
(3) In subsection (2), in the words after paragraph (b), for ‘the Senior President of Tribunals’ substitute ‘the appropriate office-holder’.
(4) After subsection (2) insert—
‘(2A) In subsection (2), “the appropriate office-holder” means—
(a) where the tribunal member exercises functions wholly or mainly in Scotland or Northern Ireland, the Senior President of Tribunals;
(b) in any other case, the Lord Chief Justice of England and Wales.’”
This amendment would insert provision amending provisions of the Wales Act 2017 so as to confer on the Lord Chief Justice of England and Wales certain functions currently conferred on the Senior President of Tribunals.
Amendment 94, in schedule 3, page 94, line 3, at end insert—
“Courts and Tribunals (Judiciary and Functions of Staff) Act 2018
50A In the Schedule to the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 (authorised court and tribunal staff: legal advice and judicial functions), omit paragraph 40 (which inserts into the Tribunals, Courts and Enforcement Act 2007 provision repealed by this Act).”
This amendment would repeal provision of the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 which inserts into the Tribunals, Courts and Enforcement Act 2007 provision repealed by the Bill.
Amendment 95, in schedule 3, page 95, line 4, at end insert—
“Judicial Review and Courts Act 2022
54 The Judicial Review and Courts Act 2022 is amended as follows.
55 (1) Section 32 (judicial agreement to certain regulations) is amended as follows.
(2) In subsection (1)(a)—
(a) omit the ‘or’ at the end of sub-paragraph (i);
(b) at the end of sub-paragraph (ii) insert
‘, or
(iii) relevant tribunal proceedings in England and Wales;’.
(3) In subsection (1)(b)—
(a) in sub-paragraph (i), after ‘First-tier Tribunal’ insert ‘in Scotland or Northern Ireland’;
(b) in sub-paragraph (ii), after ‘Upper Tribunal’ insert ‘in Scotland or Northern Ireland’;
(c) in sub-paragraph (iii), after ‘employment tribunals’ insert ‘in Scotland’;
(d) in sub-paragraph (iv), after ‘Employment Appeal Tribunal’ insert ‘in Scotland’.
(4) After subsection (2) insert—
‘(3) In this section, “relevant tribunal proceedings” means proceedings in—
(a) the First-tier Tribunal,
(b) the Upper Tribunal,
(c) employment tribunals, or
(d) the Employment Appeal Tribunal.’
56 (1) Schedule 3 (practice directions for online proceedings) is amended as follows.
(2) In Part 2 (proceedings in the First-tier Tribunal and Upper Tribunal), in paragraph 7 (giving practice directions)—
(a) in sub-paragraph (1), for ‘The Senior President of Tribunals’ substitute ‘The Lord Chief Justice and the Senior President of Tribunals, acting jointly,’;
(b) after sub-paragraph (1) insert—
‘(1A) The Lord Chief Justice may give practice directions under paragraph 5 in relation to proceedings in a Chamber of the First-tier Tribunal or Upper Tribunal whose business involves only the application of the law of England and Wales.
(1B) The Senior President of Tribunals may give practice directions under paragraph 5 in relation to proceedings in a Chamber of the First-tier Tribunal or Upper Tribunal whose business involves only the application of the law of Scotland or Northern Ireland.’;
(c) in sub-paragraph (2), for ‘The Senior President may not give practice directions’ substitute ‘Practice directions may not be given under sub-paragraph (1), (1A) or (1B)’;
(d) in sub-paragraph (4)—
(i) omit the ‘and’ at the end of paragraph (a);
(ii) after paragraph (a) insert—
‘(aa) the Lord Chief Justice, if the business of the Chamber to which the directions relate involves the application of the law of England and Wales, and’;
(iii) in paragraph (b), after ‘Tribunals’ insert ‘, if the business of the Chamber to which the directions relate involves the application of the law of Scotland or Northern Ireland’;
(e) in sub-paragraph (6)—
(i) for ‘the approval of the Senior President of Tribunals if’ substitute ‘any approval’;
(ii) for ‘sub-paragraph (4)(b)’ insert ‘sub-paragraph (4)(aa) or (b)’.
(3) In Part 3 (proceedings in employment tribunals and the Employment Appeal Tribunal), in paragraph 11 (giving practice directions)—
(a) in sub-paragraph (1)—
(i) for ‘The Senior President of Tribunals’ substitute ‘The Lord Chief Justice and the Senior President of Tribunals, acting jointly,’;
(ii) for ‘any proceedings’ substitute ‘proceedings in the Employment Appeal Tribunal’;
(b) after sub-paragraph (1) insert—
‘(1A) The Lord Chief Justice may give practice directions under paragraph 9 in relation to proceedings in employment tribunals in England and Wales.
(1B) The Senior President of Tribunals may give practice directions under paragraph 9 in relation to proceedings in employment tribunals in Scotland.’;
(c) in sub-paragraph (2), for ‘The Senior President may not give practice directions’ substitute ‘Practice directions may not be given under sub-paragraph (1), (1A) or (1B)’;
(d) in sub-paragraph (5), for the words from ‘of—’ to’ the end substitute ‘of the Lord Chancellor’;
(e) after sub-paragraph (5) insert—
‘(5A) The President of the Employment Appeal Tribunal may not give practice directions without the approval of—
(a) the Lord Chief Justice, and
(b) the Senior President of Tribunals.
(5B) The President of Employment Tribunals (England and Wales) may not give practice directions without the approval of the Lord Chief Justice.
(5C) The President of Employment Tribunals (Scotland) may not give practice directions without the approval of the Senior President of Tribunals.’;
(f) in sub-paragraph (6), for ‘sub-paragraph (5)(a)’ substitute ‘sub-paragraph (5)’;
(g) in sub-paragraph (7)—
(i) for ‘sub-paragraph (5)(a)’ substitute ‘sub-paragraph (5)’;
(ii) for ‘the approval of the Senior President of Tribunals if’ substitute ‘any approval’;
(iii) for ‘sub-paragraph (5)(b)’ substitute ‘sub-paragraph (5A), (5B) or (5C)’.”
This amendment would insert provision amending provisions of the Judicial Review and Courts Act 2022 so as to confer on the Lord Chief Justice of England and Wales certain functions currently conferred on the Senior President of Tribunals.
Amendment 96, in schedule 3, page 95, line 4, at end insert—
“57 In Schedule 5 (employment tribunal procedure rules: further provision)—
(a) in paragraph 3, omit sub-paragraphs (3) and (6) (which insert into the Employment Tribunals Act 1996 provision repealed by this Act);
(b) omit paragraph 28 (which inserts into the Tribunals, Courts and Enforcement Act 2007 provision repealed by this Act).”—(Sarah Sackman.)
This amendment would repeal provisions of the Judicial Review and Courts Act 2022 which insert into the Employment Tribunals Act 1996 and the Tribunals, Courts and Enforcement Act 2007 provision repealed by the Bill.
Schedule 3, as amended, agreed to.
Clause 19
Lay justices’ allowances
Question proposed, That the clause stand part of the Bill.
Sarah Sackman
The clause will make it easier to make changes to the types of expenses that can be reimbursed so that we can more nimbly react to what the magistracy requires. It is right that our valued magistrates are reimbursed for reasonable expenses and should not feel out of pocket for serving their community.
Section 15 of the Courts Act 2003 sets out three specific categories of reimbursable expenses: travel, subsistence and financial loss. However, those statutory categories are, in effect, over-prescriptive. The provisions in the Bill follow the recommendation of the independent review of the criminal courts to move the categories of magistrates’ expenses which may be reimbursed from primary to secondary legislation, which will provide the flexibility to update them more quickly and to respond to changes in the evolving needs of magistrates’ expenses.
I turn now to the detail. Proposed new section 15(1) of the 2003 Act replaces the existing statutory categories of magistrates’ expenses with a delegated power enabling the Lord Chancellor to specify, in regulations, the categories of expenses or financial loss for which a magistrate can be reimbursed in connection with the performance of their duties. The power also enables regulations to provide for reimbursement of expenditure incurred or financial loss suffered as a result of those duties.
Subsection (2) outlines what matters may be addressed in the regulations and sets out what is and is not to be treated as the performance of a magistrate’s official duties, the circumstances under which expenditure of financial loss can be considered to arise from the carrying out of those duties, and administrative arrangements for making and determining claims.
I realise that the clause sounds a little dry, but it is really important. We have talked about the important role that our magistrates play in our criminal justice system. Whatever one’s view of the Government’s reforms, they are being given more responsibilities and work to do, and we will need to attract more people.
I think that the hon. Member for Chichester raised the important issue of magistrate retention. For every magistrate we recruit and train up and who must gain experience, we are seeing people leave the magistracy, partly because we are not supporting the important role they provide society and supporting them to remain magistrates for longer. That is about expenses and recognising people’s service, which is why we are looking to provide rewards and outward recognition through a long service medal. Those are all important.
Although the clause is technical, when I spoke to the Magistrates’ Leadership Executive and the Magistrates’ Association, they were delighted by it. They know that their members need to feel valued. Part of that is not making them feel undervalued by leaving them out of pocket. Even if the system were not reformed, this would be a good measure. If there is to be reform and we are to attract the magistrates we need, it is a really good thing.
John Slinger (Rugby) (Lab)
The Minister is quite right to point out that the clause is somewhat technical, but it speaks to the importance of we as a society and we as a Parliament—as legislators—making sure that, although we do not seek to professionalise the magistracy entirely, we give them the support that professionals would expect. If we want to attract people into the magistracy, this is exactly what we need to do. They certainly deserve an update to the system of expenses and more.
Sarah Sackman
I could not agree more. That is precisely why we are doing this, and it is why I commend the clause to the Committee.
Dr Mullan
I rise to speak in enthusiastic support of the clause. If we were starting from scratch, would we deal with this issue in primary legislation? I expect not. I do not know the history of why the approach of the time was followed, but it seems that the matter should be addressed flexibly via regulations. Members will have heard us argue vociferously against the use of both positive and negative regulations in different contexts, but it seems appropriate in these circumstances. The proposal reflects the changing nature of how people work, interact and fulfil their role as magistrates. We want to support and accommodate that in a way that is not over-rigid.
Of course, there will be opportunities for scrutiny of the legislation to come. Even though we have talked about the significant limitations of the negative procedure, scrutiny is still an option in theory if something were proposed that that we really were not happy about. Considering the stakes of this issue, that is a proportionate approach.
Linsey Farnsworth (Amber Valley) (Lab)
It is a pleasure to serve under your chairship, Ms Jardine.
I wanted to speak on this clause because, as the Minister said, while it is technical and feels dry, it is incredibly important. I appeared in front of many magistrates over my 21 years as a Crown prosecutor. They do an incredibly important job and provide a huge public service. During the course of this legislative process, it has been concerning to hear suggestions that magistrates are, in some respects, an inferior bench or forum for our criminal justice system. That is far from my experience over 21 years.
I put on record my thanks to all the magistrates who serve day in, day out, across this country. The clause recognises them and shows that we can be dynamic in rewarding them. The Minister mentioned the medal, which I welcome. I can think of many magistrates who deserve a medal for their work. It is important that we pass the clause today.
Sarah Sackman
That is true. We should be doing what is set out in this good clause and I have nothing more to add.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Clause 20
Special provision when Crown Court sits in City of London
Question proposed, That the clause stand part of the Bill.
Sarah Sackman
Clause 20 concerns the statutory title “Central Criminal Court”, which has been on the statute book since 1834 and refers, in practice, to the Old Bailey. Under existing legislation, the title applies to the Crown court sitting within the City of London. Historically, the only Crown court located within the City has been the Old Bailey, so the provision has operated without difficulty. From next year, however, I am absolutely delighted to say that the City of London Corporation’s new courts complex at Salisbury Square will open. It is fantastic; I have been to seen it—I had to do that politician’s thing of wearing high-vis and a hard hat.
The complex is an amazing facility for London’s justice system, with modern courtrooms. It is a brilliant resource, providing much needed additional Crown court capacity following more than £600 million of investment. Without legislative clarification, however, both the Old Bailey and the new courts at Salisbury Square would automatically be designated as the Central Criminal Court. That would cause operational confusion for court users and practitioners. Clause 20 therefore clarifies that the statutory title will continue to apply only to the Old Bailey.
The clause also maintains the long-standing statutory entitlement of the Lord Mayor and aldermen of the City of London to sit as judges when the Crown court sits within the City. In practice, and as a matter of convention, they do not assert that entitlement in order to sit in hearings in criminal cases. The clause does not alter how that entitlement is exercised in practice; it ensures that the historic statutory entitlement continues to apply consistently when the Crown court sits in more than one location within the City.
The City’s historic relationship with the Central Criminal Court does not affect judicial independence or integrity, and all judicial business will continue to be conducted by independent, legally qualified judges. I commend clause 20 to the Committee.
Dr Mullan
I rise to speak in support of clause 20, which is a technical and geographic provision necessitated by the significant infrastructure developments currently under way in the City of London. As new law courts are developed, specifically at the Salisbury Square site—we mentioned the specialist fraud court earlier in the Committee, and I do not know if that is included in the site—the law must be updated to clarify how historical designations, sitting rights and traditional roles are to be maintained in a changing physical landscape. The clause is a matter of ensuring that our legal terminology catches up with the physical reality of the court estate.
The primary objective of the clause is clarity and the avoidance of ambiguity. It ensures that the prestigious and globally recognised designation of the Central Criminal Court remains attached exclusively to the historic Old Bailey site. “Old Bailey” is a phrase that many people will be familiar with, and it acts as a tourist draw for our visitor economy. It is important to ensure that the title is not diluted or confused as additional Crown court capacity is brought online at other locations within the City boundaries.
Simultaneously, the clause ensures that the historical sitting rights of the Lord Mayor and aldermen of the City of London are maintained and extended to any Crown court site within the City. That is a respectful preservation of the unique judicial heritage of the City of London Corporation, ensuring that ceremonial traditions and historical roles are not inadvertently extinguished by modern building projects.
The Opposition support clause 20 as a necessary administrative measure. It is a fundamental principle of good lawmaking that technical clauses should be explained clearly to the Committee so that their practical effect is well understood. I thank the Minister for doing that today.
Sarah Sackman
There is only one Old Bailey, and as a result of clause 20, there will only ever be one Old Bailey. I invite all members of the Committee to join together on a group tour of the new facility in Salisbury Square when it opens, hopefully in a year’s time.
Question put and agreed to.
Clause 20 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Stephen Morgan.)