(1 day, 6 hours ago)
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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.)