Courts and Tribunals Bill

Baroness Levitt Excerpts

Tuesday 10th November 2026 Lords Chamber

[Lord Macdonald of River Glaven (CB)]

My Lords, the backlogs are now so great, and the delays in trials taking place so vast, that we are talking about cases being listed two or three years in the future, which is a hopeless situation for witnesses, victims, complainants and, of course, defendants. Some sort of structural change is necessary, but the question is what form it should take.

As I made clear at Second Reading, I do not have a difficulty with courts making the decision about where cases should be allocated, rather than defendants. In fact, granting defendants that right is comparatively unusual across the common-law world and does not even exist universally across the United Kingdom. It is not the system that pertains in Scotland, and I imagine your Lordships would all agree that Scotland has a civilised, decent and fair legal system—that is certainly my view, as someone whose parents were natives of Scotland.

My concern, however, as I expressed at Second Reading, is whether the magistrates’ courts can cope with the new levels of work that they are going to receive. I entirely agree with the noble and learned Lord, Lord Leveson of Liverpool, that it is not simply a lack of funding or the Covid pandemic that have caused the backlogs—although lack of funding has been a very significant contributor, and Governments of all persuasions have deliberately starved the justice system of cash because it was an easy target, and it is obviously true that Covid played its part. As the noble and learned Lord said, the increasing complexity of criminal trials and the bulk of evidence—CCTV evidence, DNA evidence, scientific evidence and all the rest of it—have made trials longer and contributed to the backlog.

The obvious flaw in that argument, however, when it comes to the Government’s proposed reform, is this: why would those cases be any less complicated in the magistrates’ court? How is the magistrates’ court to cope with the increasing complexity? There is no doubt at all that most of our magistrates’ courts in greater urban areas are presently in a state of chaos: the backlogs are enormous and growing; we are failing to recruit sufficient magistrates; and we do not have enough district judges. Unless we significantly increase the number of magistrates and district judges, magistrates’ courts will simply be unable to cope with the increased volume and complexity of work that is destined for those courts because of this legislation. The Government are going to have to devote significant funding to this change if it is to work.

All these issues make even more important Amendment 2, in the names of the noble and learned Lord, Lord Thomas, and other noble Lords, on the question of allocation. It is going to be critical that magistrates’ courts have some allocation guidelines in this area. If not, there is an obvious risk—I speak as someone who knows a number of magistrates—that magistrates simply continue to send everything up to the Crown Court because their courts cannot cope. That will happen if there is not some form of allocation and increased funding for the magistrates’ courts. I do not say any of this with great pleasure. Funding has played a major part in the situation in which we find ourselves, and the lack of funding on the part of many Governments has been reprehensible.

Finally, I cannot support Amendment 1. Why should people of good character have more rights in our justice system than people of bad character? I practised in the criminal courts regularly for almost 40 years. I do not any more; I last did a trial in 2012. Why should defendants of bad character have fewer rights when it comes to allocation? I say this frankly and with due respect to them, but most of the defendants who I represented over my 30 or 40 years at the criminal Bar were people of bad character. I never felt that they should have fewer rights in the criminal justice system than people of good character, but that is what Amendment 1 proposes, and I am surprised that it does so. Allocation should apply according to fair and rational guidelines, regardless of the character of the individual who is being allocated.

[Baroness Levitt (Lab)]

My Lords, I speak in support of Clause 1. At its heart, this clause raises a simple question: do we trust magistrates? Throughout my professional life, I have regarded magistrates as one of the great strengths of our criminal justice system. Every single day, magistrates determine guilt. They pass sentence and make decisions that affect liberty, livelihoods and futures. If they can be trusted to do that, why can they not be trusted to decide where a case should be tried? That is the question I have yet to hear satisfactorily answered by the opponents of Clause 1.

Some argue that magistrates may underestimate the seriousness of a case. My experience suggests the opposite; magistrates frequently err on the side of caution. Indeed, many cases sent to the Crown Court ultimately result in sentences that magistrates themselves could have imposed. If there is a tendency, it broadly appears to be towards caution, not recklessness. With respect to my noble friend Lady Chakrabarti—with whom I agree on almost everything, but not on this occasion—I am slightly mystified by the suggestion that magistrates are going to keep the person of good character in a magistrates’ court but send a serial shoplifter to the Crown Court. My instinct is that rather the opposite is likely to happen. I could not agree more with the noble Lord, Lord Macdonald, that all those who appear before the courts must be treated in exactly the same way.

I am a strong supporter of jury trial; it is one of the strengths of our constitution. However, it does not follow that every case capable of being tried by a jury must be tried by a jury. If that were the principle, the vast majority of criminal cases presently heard by magistrates would need to be transferred back to the Crown Court, and nobody is sensibly arguing for that. Magistrates’ courts do not provide some lesser form of justice, and lay magistrates, like jurors, are members of the public performing a public duty; both reflect the principle that justice should not be administered exclusively by professionals.

As has been frequently said at Second Reading and during this debate, more than 90% of criminal cases are dealt with in the magistrates’ court, and without lay magistrates the system simply would not function. Throughout my career, I have seen magistrates approach difficult cases conscientiously, thoughtfully and fairly. They have earned the confidence of judges, practitioners and the communities which they serve, and they have earned the confidence of Parliament as well. Clause 1 does not ask the magistrates to undertake some radical new judicial function. It asks Parliament to trust them with a decision that is modest when compared with the responsibilities they already discharge every day. The real question is not whether magistrates are ready for this responsibility; it is whether we are prepared to recognise the responsibility they already shoulder.

[Lord Young of Acton (Con)]

My Lords, in supporting Amendment 5, in my name, I declare my interest as the director of the Free Speech Union.

I agree with all those noble Lords who have spoken already and expressed reservations about Clause 1, but, if we are going to have to live with Clause 1, I want to suggest ways in which it could be improved by exempting certain classes of offences from it. My amendment would exempt from Clause 1 the removal of the right to trial by jury for those accused of speech offences that are currently triable either way.

The argument for doing this is that whether someone is guilty of one of these offences depends on where the line is drawn, and that question hinges on the meaning of words such as insulting, threatening, abusive, harassment, alarm, distress and grossly offensive, or whether something has a tendency to deprave and corrupt. There are often no hard and fast rules when it comes to understanding or interpreting the meaning of those words, and no unambiguous statutes or precedents that a judge can refer to. Instead, it comes down to a moral judgment about what is and is not socially acceptable. When it comes to making those kinds of decisions, that is properly a matter for a jury, not a judge.

That is not just my view. In Brutus v Cozens, a case heard before the House of Lords in 1973, the Lords held that the meaning of an ordinary word such as “insulting” is not a question of law. It is a question about ordinary language and ordinary standards and where the line should be drawn, and such matters are best left to juries composed of ordinary people, not experts in law.

There is another reason for maintaining the “either way” status of the particular speech offences listed in my amendment. According to research carried out by the Free Speech Union, people charged with speech offences are twice as likely to be acquitted in the Crown Court as they are in the magistrates’ court. That is to say, juries are more tolerant when it comes to what speech is or is not socially acceptable.

I will give an example. In 2024, shortly after the Southport attack, an ex-Royal Marine called Jamie Michael, who was under the false impression that the attack had been carried out by an undocumented migrant, put out a video on Facebook urging his followers to protest outside the offices of elected politicians against illegal immigration. He did not use any racial epithets and he made a point of stressing that such protests should be peaceful. A complaint was made to the police by a member of staff of a Member of the Welsh Parliament, and he was charged with stirring up racial hatred, the maximum sentence for which is seven years in prison. The Free Speech Union found him a good solicitor and barrister, he pleaded not guilty and it took a jury a grand total of 17 minutes to acquit him. Would a magistrate have acquitted him in the same way? I doubt it.

When it comes to our fundamental right to freedom of speech, which is, after all, the most important right, because without it we would not be able to defend any of the others, I urge noble Lords to continue to entrust it to 12 ordinary Britons, who have proven to be a reliable guide to where to draw the line, as they did in the Lady Chatterley trial and have done so often since.