Draft First-tier Tribunal (Property Chamber) Fees (Amendment) Order 2026

Kieran Mullan Excerpts

Monday 27th April 2026 General Committees

[Dr Kieran Mullan (Bexhill and Battle) (Con)]

It is a pleasure to serve under your chairmanship, Dr Murrison, and to respond on behalf of the Opposition in this Delegated Legislation Committee.

It might seem that this is a narrow measure, but, in reality, the draft order is part of a poorly implemented Act of Parliament. As the Minister explained, it introduces a £47 application fee for rent appeals, a £47 application fee for succession of assured tenancy rights and a £200 application fee, plus a £300 hearing fee, for financial penalty appeals, which are where landlords appeal civil penalties imposed by local authorities. That reflects the expanded scope of rent repayment orders under the Renters’ Rights Act, so it is clearly not an isolated change. The order is being introduced because, as the Minister described, Government legislation is creating new routes into the tribunal system, and Ministers need to introduce a fee structure to go with those routes.

There are two immediate problems. The Government have not done an impact assessment for the order because, they say, no significant impact is foreseen, but that is hard to accept. The order introduces new fees into a system that the Government are making more widely applicable, and it is doing so in a sensitive area where access to the tribunal may matter a great deal to tenants and landlords alike. It simply does not look credible to say that there is no significant impact worth assessing.

The Opposition have been clear for some time that the Government’s rental reforms will put more pressure on the courts and tribunals system before it is ready. Regardless of the changes that the Government make to the fee structure, such relatively minor, short-term changes in the income available to courts will not change that situation overnight. Our court system is simply not in a position to manage the influx that is likely to result from the Act, but Labour is pushing ahead without first showing that the wider justice system can cope. The Government are adding further operational pressures to the property chamber at a time when there are already problems across all elements of His Majesty’s Courts and Tribunals Service. The Government should deal with those broader pressures first, not build new demand into the system and adjust the fee structure around it.

There is also real concern about incentives. Geoffrey Vos, the Master of the Rolls, has warned that the rules under the Renters’ Rights Act could incentivise tenants to apply to the first-tier tribunal in respect of every rent increase, simply to delay its implementation. That is because even when a rent increase is upheld, it will take effect only from the date of the tribunal decision, not from the date of the notice being served, meaning that even unsuccessful challenges could delay higher rent payments for months. If that is the case, Ministers may be creating a much greater volume of tribunal work than they are willing to admit, and I would be grateful if the Minister would respond to that particular concern, which was raised by someone with significant credibility..

The broader truth is that Labour is failing to listen to those who understand the sector. No serious impact assessment has been done, there have been clear warnings about incentives and workload, and there are longstanding concerns that the wider Act will reduce supply and increase rents, yet Ministers are pressing on regardless. Our objection to the order is straightforward: it is not just a technical amendment, but part of a wider framework that places more reliance on a tribunal system that is already under strain. It comes without a proper assessment of impact, and helps to implement a wider Act that we believe will leave the rental market less, not more, stable. For those reasons, the Opposition cannot support the order.

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[Sarah Sackman]

That was exactly what I was going to suggest: I shall write to the right hon. Gentleman. I will write to him on his first question, which was about RDEL and the exact running costs of the property chamber.

We expect an increase in the volume of receipts that the property chamber will take, and some work is being done internally as to what that might look like. As the right hon. Gentleman would expect, this is an expansion of rights, and as I have said, we have set the fees not to impede the enforcement of those rights but to enable it, while achieving a measure of cost recovery. We want to reduce conflict in our society, but we do not shy away from the fact that the thrust of the policy behind the Renters’ Rights Act is that we welcome people enforcing their rights where rents that are set far outstrip what can be considered reasonable. That is why we have deliberately empowered people by giving them rights that can be enforced.

The hon. Member for Bexhill and Battle made a point about the tribunal’s readiness. In anticipating additional pressures on the tribunal, we have been undertaking steps to increase capacity within it. Those have included the recruitment of additional administrative staff and the establishment of a centralised operating hub. We are also working with the Ministry of Housing, Communities and Local Government to develop a new digital system for rent appeals in the property tribunal, to maintain the efficiency of that. The fees, along with the Ministry of Justice’s operating budgets, will support that capacity, so that those who rely on the chamber, be they tenants or landlords, can expect the capacity of the tribunal to keep up with the demand.

[Dr Mullan]

Let us say that a landlord proposes to put someone’s rent up by £100 a month, and that it might take two months for the case to be heard in tribunal. They are therefore going to be £150 better off, even if they pay the £48 fee, if they wait for two months and the case goes to the point of a ruling. That is the criticism made by the Master of the Rolls. What is the counter-argument to that? Why would people not simply lodge an appeal knowing that they will make that money back and be in the black on the back of it?

[Sarah Sackman]

I am familiar with the argument raised by the Master of the Rolls; we discussed it during the passage of the Renters’ Rights Act, and I have discussed it with the relevant Minister. That is the subject of a whole series of policy choices that have been made to strike an appropriate balance between the rights of tenants and landlords.

We do not expect that measure to be abused, and there are equities that go the other way. If someone backdates a payment, they will then be forced to pay arrears and additionality in one big lump sum, which can also create unfairness. That is the result of a policy choice that has been made in the Act, although it may be one that the Opposition take issue with. This is now all about ensuring that a tribunal is ready to receive any ensuing rent appeals as soon as possible after the order comes into force on 1 May—it is very exciting.

I did jot down the right hon. Gentleman’s further question, but I am now struggling to read my handwriting, because we are at that point in the day.

Public Office (Accountability) Bill (Carry-over)

Kieran Mullan Excerpts

Carry-over motion
Monday 27th April 2026 Commons Chamber

[Dr Kieran Mullan (Bexhill and Battle) (Con)]

Let me say at the outset that the Opposition continue to support the broad aims of the Bill, as we have done throughout its passage. We recognise the importance of candour, transparency and accountability in public life and recognise the long and determined work of those campaigners, including the Hillsborough families and others who have fought for many years to ensure that where public bodies fail, evade, conceal or mislead, there are proper consequences. That principle remains an important one, and it is not a partisan principle. It is not owned by any one party or Government; it is a basic requirement of good government and of public confidence in the institutions of the state.

As has been recognised throughout the passage of the Bill, legislation on its own cannot guarantee the cultural change that is needed. We have already introduced duties of candour in parts of the public sector—for example, the NHS—and have taken steps in recent years in policing to improve accountability, as well as creating the office of the independent public advocate, but questions remain about whether the system works as it should when it really matters. The lesson from Hillsborough, the infected blood scandal, the Post Office scandal and other serious institutional failures is that, yes, the legal framework matters, but so do culture and practice. For that reason, we want the Bill to progress and the areas of consensus to move forward, so we do not intend to oppose this carry-over motion. We have consistently taken part in proceedings in that matter.

What I say next is not a criticism of the approach of campaigners, or indeed of the many Labour MPs who have been sincere and consistent in their campaigning on this issue over many years, including the hon. Members for Liverpool West Derby (Ian Byrne) and for Liverpool Garston (Maria Eagle). The Government have utterly mishandled this legislation from start to finish, which is why we are here today, six months on from Second Reading, with a Bill pulled at the last minute—and with broken promises. I do not expect Labour Members to relish joining me in that criticism.

The Minister will, I am sure, say that the Government have at least brought a Bill forward, as if that were a blank cheque for the manner in which these proceedings have been conducted. I have some sympathy for her—she has been put into difficult situations—but trust has been damaged on all sides. Even though this Bill is about trust, candour and whether the public can believe what they are told by those who exercise power on their behalf, the process by which the Government have pursued the Bill has too often fallen short of the standards that Ministers say they want to impose on others through this legislation.

The Prime Minister announced the Bill last September at party conference, and gave the clear impression that families and campaigners were content with the detail on the approach being taken. The House should remember that it had been widely reported several months earlier that a draft Bill had been rejected by campaigners. What else could we have reasonably assumed other than that those concerns had been addressed? It has since become crystal clear that campaigners were in fact not satisfied with the draft proposals, and that their support was conditional—as I understand it, they made that clear to the Government—but the Prime Minister wanted his big announcement and proceeded anyway.

The Hillsborough Law Now campaign has explained its view: the delays since January have been caused not by the families or campaigners, but by disagreements within Government and by objections from the Cabinet Office, the security services and others. All that should surely have been dealt with prior to the drafting, publication and big announcement of the Bill, and the fact that it was not is why we are debating this carry-over motion. On more than one occasion, we were presented with a version of the Bill that the Government told us was the only possible approach to the inclusion of the intelligence services—until it was not. We were told that the balance had been struck, but then the Bill was withdrawn and there were reports of further changes.

The issues relating to the security services could not be more serious. The Government cannot have it both ways; they cannot tell the House at one stage that the Bill they have published is the only responsible approach to the inclusion of the security services—and marshal the leaders of the security services to say the same thing—before moving away from that position without properly explaining what has changed, why, and whether the earlier assurances given to Members were sound.

The Opposition have always accepted that national security raises real and serious issues; there will be material that cannot be handled in the same way as ordinary departmental papers, as well as operations, sources, methods and relationships with allies that require safeguards. Any responsible Government must take that seriously. It was a Conservative Member—my hon. Friend the Member for Huntingdon (Ben Obese-Jecty)—who asked how those provisions might apply to elements of the armed force, and those elements were then included in the Bill very late in the day. That is another issue that should have been properly thought through before the Government reached the point of withdrawing the Bill in January, which has led us to this carry-over motion.

This is part of a broader pattern. We have seen a lack of candour from the Lord Chancellor when he has been asked about prisoner release, and tomorrow we will debate the candour and honesty of the Prime Minister. I have absolutely zero faith in this Government—zero. The Bill is literally about candour in public office, but this process has left campaigners, Members and the public unclear about the Government’s position from one month to the next.

The Government should not be surprised, then, that we will not simply accept assurances about the Bill at face value. Assurances are not enough; the test will be the text of the Bill, whether Ministers can explain clearly and consistently how the Bill will operate in relation to our security and other services, and whether the Government can show that they have balanced transparency, accountability and national security in a workable, principled and robust way.

I hugely respect the Hillsborough Law Now families and campaigners, but I am not afraid to say that they may well not be entirely satisfied by this law. A responsible Government must sometimes say that to campaigners, but this incredibly weak Prime Minister is not able to do so. The families and campaigners who have fought for this legislation deserve better than drift, confusion and mixed messages; they deserve frankness and candour. If the Government are not willing to do everything that the campaigners ask, they should just tell them so and get on with it. The public deserve legislation that is not merely well intentioned but clear, workable and effective.

As I have explained, we will not oppose the carry-over motion, but we will scrutinise what comes next with the seriousness that the subject demands and the scepticism that the Government’s handling of the Bill has regrettably earned.

Courts and Tribunals Bill (Ninth sitting)

Kieran Mullan Excerpts

Committee stage
Thursday 23rd April 2026 Public Bill Committees

[Sarah Sackman]

Thank you, Dr Huq. Amendment 63 seeks to broaden the test for allowing an appeal from magistrates courts under the new reforms. The amendment expands the existing test so that permission will be granted where there is some other compelling reason. That is a test used in civil proceedings in the Court of Appeal civil division. There is not equivalent test for appeals in the Court of Appeal criminal division, which is what our new process for appeals in the magistrates courts is based on.

One reason why a court might hear an appeal due to some other compelling reason is to seek an authoritative binding judgment on a particular issue. A Crown court cannot provide a binding decision as to the law on magistrates courts generally, whereas the High Court can. If the appellant wished to appeal for this reason—in other words, in order to seek a binding judgment on a point of law—they could achieve that by using the existing process of appeals by way of case stated to the High Court. In short, we do not think it would be appropriate for there to be appeals to the Crown court in this context.

Instead, we have replicated the existing grounds for appeal in the Court of Appeal criminal division: whether it is reasonably arguable that an appeal will be allowed. An appeal of conviction will be allowed if it is unsafe, which can be the consequence of the incorrect application of the law, procedural irregularities, or the introduction of fresh evidence. An appeal against sentence will be allowed in the same circumstances as in the Court of Appeal: where a sentence is manifestly excessive or otherwise wrong in law or principle. These are well-established tests.

We are committed to ensuring that we create a fair appeals system that provides adequate safeguards for summary justice. In the event that appellants feel an incorrect decision has been made in respect of their application for permission, they have the opportunity to seek a judicial review of that decision to the High Court. I remind the Committee that, as I said earlier, the introduction of recording equipment into magistrates courts to accompany the change in the appeals process will increase the ability to scrutinise the decisions of magistrates courts. I hope I have reassured the Committee of our commitment to a fair and accessible criminal appeals process, and I urge that amendment 63 not be pressed to a Division.

Amendments 64 to 66, tabled by my hon. Friend the Member for York Central, relate to the right to renew an appeal for permission to appear at an oral hearing if the appeal has been refused on the papers. I will deal with these matters sequentially.

The right to renew an application for permission at an oral hearing when it has been refused on the papers does exist in appeals from the Crown court to the Court of Appeal. We decided not to replicate the provision for appeals from the magistrates courts. There will be occasions when an oral hearing may be regarded as necessary in order for a Crown court judge to determine whether to grant permission to appeal. For that reason, we have included a provision in proposed new section 108A of the Magistrates’ Courts Act 1980, so that judges can hold an oral hearing if they feel it is necessary or for the purpose of making a determination more expeditiously.

However, the key is whether an oral hearing is necessary in the context. We are keen to avoid an influx of applications to renew permission to appeal at an oral hearing where that is unnecessary. That is particularly important when we consider the high volume of cases that our magistrates courts already consider, and the higher volume of cases that we anticipate they will be considering after the other reforms in the Bill come into play. The volume of appeals from magistrates courts to the Crown court will therefore be higher, proportionally, than the volume of appeals from the Crown court to the Court of Appeal. If we include provision for appellants to renew an application for permission that has already been refused, we risk creating a higher volume of unnecessary oral hearings than in the Court of Appeal, thereby placing a significant and unnecessary strain on Crown court time.

I understand that the amendment is driven by the desire to ensure that adequate safeguards are built into the process, and I hope my hon. Friend will be reassured that, as I have said, refusal of permission can still be challenged by applying to the High Court for judicial review.

The second part of the amendment provides that the grounds of appeal may be based on issues of procedure and fact arising in the trial, as well as on points of law. I want to reassure my hon. Friend that the grounds for appeal as currently drafted in the Bill capture the points raised in the amendment. An appeal of conviction will be allowed if it is unsafe, which can be the consequence of an incorrect application of law, procedural irregularities or fresh evidence.

Appeals of sentence could also be successful on the basis that the magistrates court has made a mistake as to the facts of the case or made a procedural error, as long as, by virtue of that mistake, the sentence was manifestly excessive or wrong in law or principle. The amendment would not change that position.

For the reasons I have set out, I urge Members not to support amendments 64 to 66. In essence, they are already covered by the Bill.

I thank the hon. Member for Bexhill and Battle for tabling amendments 54 and 57, which would provide that whenever an appeal against conviction or sentence is made from the magistrates court to the Crown court, the appeal must be allowed, irrespective of whether there is any merit in the appeal. I suspect that was not the intention behind the amendments. If I read them in the spirit that I imagine they were tabled, I think they were designed to remove the permission test, rather than indicating to the Court that it should allow all such appeals.

[Dr Kieran Mullan (Bexhill and Battle) (Con)]

I am grateful to the hon. Member for Wimbledon, who is not in his place, for the advice received in relation to amendment 54, which was drafted with the assistance of the Clerks. The Minister is right that our intention was to unpick the barriers at the permission stage that the Bill introduces. I think her point applies just to the first amendment; the other amendments fit because they are about what happens after a successful appeal and how it might be re-instigated. On that basis, I will not press amendment 54 to a vote. We will table a suitable amendment at a later stage.

[Sarah Sackman]

I am grateful to the hon. Gentleman for that clarification. I was pretty sure that that was what he must have meant and that it was not his intention to suggest that we should, essentially, allow and uphold all appeals as an automatic right. I understand, though, his intention to debate the merits of the permission test in the Bill.

I should make one point about the consequence anticipated in the amendments, in terms of appeals being directed automatically to a jury trial. To be clear, that is not how appeals currently operate, whereby a judge sitting with magistrates rehears the case on appeal in the Crown court. The effect of the amendments together could mean that we would see large numbers of appeals of conviction being allowed and sent to the Crown court for a retrial by jury, absent any permission test or filter. That could mean, for example, that low-level summary-only offences, such as being drunk and disorderly, are added to the Crown court caseload and, by extension, the backlog, which would only increase the waiting times for the more serious offences, which we want to get on with more expeditiously.

I am grateful for the hon. Gentleman’s correction, but we take issue with not just the effect of the amendment but the fact that it would mean that appeals would go to a jury trial, because that would extend the right to, or access to, a jury trial, which we do not want to encourage in this context. I anticipate that the intention was to expand the grounds for permission, so that instead of applying a test, any application for permission would be allowed. This would essentially remove the permission filter and return us to the status quo, where there is an automatic right to a rehearing on appeal, absent any filter for the merit of an appeal.

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The current state of play in relation to the appeal volumes demonstrates that, by and large, magistrates are doing a job in which those who work in the system and are affected by it can have confidence. They are doing a good job of applying the law consistently and accurately. Of course, it is vital that the right to appeal is retained where genuine errors are made. This measure is about proportionality and ensuring a sensible use of court resources while maintaining fair and well-established safeguards against miscarriages of justice. For those reasons, I urge the hon. Member for Bexhill and Battle not to press amendments 54 to 57 and 37. I commend clause 7 and schedule 2 to the Committee.

[Dr Mullan]

It is a pleasure to serve under your chairmanship, Dr Huq. Clause 7 and schedule 2 represent a fundamental and troubling departure from the way that our justice system corrects error. As the Minister said, we have tabled a number of amendments, which essentially form two groups. The first group seeks to reconstitute the existing right of appeal, and amendment 37 aims to stop the Government’s proposal until we have a more substantial and better understanding of how to drive the appeal success rate down, which is our primary aim.

As the Minister outlined, at present a defendant convicted in the magistrates court has an automatic right of appeal to the Crown court, where the case will be heard as a full rehearing before a judge and two lay magistrates. The Bill proposes to replace that long-standing framework with a permission-based model, whereby the defendant must first prove that their appeal is reasonably arguable before a single judge, often based only on written papers and transcripts. I rise to oppose that restriction on access to justice. I will argue that, where an appeal is successful, justice is best served by providing the option of a retrial before a jury.

I will reflect on the Minister’s remarks about how our amendments would operate. I always listen very carefully to what she says and, as I will explain, I think there is some merit in some of her points, so we can reflect on those. The Minister has pointed out the difference between the magistrates court and the Crown court, and processes elsewhere, but my contention is that that is not an accident or happenstance; that is by design, because the magistrates court is very different in many other ways from those other elements of the courts. That is why there is a difference there—for very good reason.

Because efficiency must be balanced with accuracy and fairness, the current automatic right of appeal is not simply a source of unnecessary delay; it is a vital check on a part of our system that others have described as being, to some extent, “rough justice”—a forum in which decisions are swift but carry a higher risk of mistake. The evidence—because let us look at the evidence; this is not just what people might say about it—is that the current system is performing a very necessary function. Around 40% to 42% of appeals against convictions from the magistrates court are successful, and roughly 44% to 47% of appeals against sentences are also successful. That is an extremely high rate of successful appeals. These are not marginal or trivial figures; they indicate, I am afraid, that the lower courts are making meaningful errors in nearly half of the cases in which they are challenged.

The Law Commission actually considered this issue in detail. It rejected the proposals that a permission stage should be introduced and highlighted a number of key points in relation to that. On the importance of correcting error, as I have mentioned, it emphasised the critical role that those appeals are playing. It also highlighted the low volume of appeals. The Minister talked about 4% of receipts in relation to one element; I think 1% of the total number of magistrates court cases are being appealed, so that demonstrates that this measure will make a transformative difference to the backlog.

We can talk about receipts, but the other thing to keep in mind is how long the actual appeals take. Although receipts are one way of looking at it—on a numbers basis—that is also distortive, of course, because appeals are much shorter hearings than the ordinary business of the Crown court.

The Law Commission pointed out that it found no meaningful evidence that this process was being abused, even without that permission stage in place. As we have talked about previously in the Bill, legal representatives cannot support an appeal that is completely without merit. As I have said, due to a combination of the low volume of appeals and the shorter hearing times, our contention is that there would be minimal efficiency gains to weigh against this erosion of an existing right.

Actually, the introduction of a permission stage is something that we welcome, but the work that will have to be done to support it, with the introduction of recordings and making available transcripts, will probably—or could—cost significantly more than will be saved. By introducing a permission stage, the Government are creating a multi-stage system that is complicated and potentially more inefficient than the current situation.

We know that many of those facing imprisonable offences in magistrates courts are currently unrepresented. The Bill simultaneously increases sentencing powers in clause 6 while narrowing the ability to challenge those decisions in this clause. The Bar Council has described this as a

“comprehensive rolling back of safeguards”.

An unrepresented defendant, potentially facing up to two years in prison, will now be expected to navigate the practicalities of reviewing transcripts and preparing permission grounds for appeal without professional help.

The legal aid gap means that many defendants who would have qualified for a solicitor and legal aid in the Crown court will be ineligible in the magistrates court due to the different low-income thresholds—£22,325 versus £37,500. Requiring those individuals to purchase costly transcripts just to ask for permission to appeal is a significant barrier that risks entrenching injustice. If the error rate in the magistrates court remains high, restricting access to the remedy is a recipe for uncorrected miscarriages of justice.

I will move on to our amendments about the case for retrial by jury. If we accept that the current appeal system exposes weaknesses in the original summary trial, we must also look at what happens after a successful appeal. As the Bill stands, if the Crown court quashes a conviction and determines that a retrial is necessary, the case must generally be returned to the magistrates court.

We believe that that is a rigid approach that ignores the complexity, which does not exist at present, of what might have been revealed by the appeal. Because we are introducing a new system of allocation and decisions around allocation, that is a new area of the law that could be contained within appeals. A successful appeal may demonstrate that the case was too complex, or the evidence too sensitive, for a summary disposal in the new division. Returning cases to the same level of court that originally fell into error will do little to restore public confidence.

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[Sarah Sackman]

I am grateful to all the Members who have spoken for the points they have raised. Without repeating myself, they have focused on a number of areas. The first is the concern around access to justice under the new process. We had a good debate on the question of the availability of legal aid in an earlier sitting. As I have said, the Government are committed to fair and accessible routes to legal aid. There are mechanisms such as passporting for those on universal credit. An example given was that the vast majority of prisoners do not have an income. The real picture is that the vast majority of them, unless they have personal wealth, do access legal aid and therefore would be represented and supported by those who are able to give legal advice in what are, of course, high-stakes situations.

As I mentioned in the earlier debate, a hardship mechanism is available where the matter necessitates greater complexity and expenses. I recognise that, where there are litigants in person, there is more to do, and part of the implementation and delivery of these reforms will involve looking at what support can be given to those who find themselves in that position. At the moment, litigants in person in the Crown court on appeal to the Court of Appeal are given targeted information and forms that allow them to formulate grounds of appeal and that make it user-friendly and intelligible to a lay person. That sort of thing will have to be put in place if a permission stage is extended to the magistrates court.

The points that have been made are valid, but I also want to present a realistic picture of the fact that the majority will continue to access legal aid. As I said earlier, the Department has committed to review the position once we know what the final shape of the Bill looks like to ensure that we are not creating a problem in respect of access to justice. However, in the event that there are litigants in person, we also know that we need to strengthen support for them more broadly across the system, not just in the context of these reforms. That will be a vital feature of the implementation.

The second issue raised was about the trade-offs between the efficiency savings versus the introduction of a permission filter to match the sort of permission filter that already exists in the Crown court. While I recognise that the current volume of appeals, in the context of the volume of work that the magistrates undertake, is small, that will grow as the volume of work that the magistrates undertake grows.

The sorts of appeals where success is achieved are precisely the ones that will not be prevented by this appeal test, because it is a low bar; all that has to be shown is reasonable arguability, and a court can identify that straightforwardly. It is not as if, all of a sudden, a huge risk to access to justice is created. However, what is permitted is the filtering out of wholly unmeritorious appeals, the volume of which may grow as the overall volume of cases within the magistrates court expands.

[Dr Mullan]

I direct the Minister to the report from the Law Commission, which said that there was no significant evidence of people abusing the system or lots of unmeritorious appeals. The point is that someone has looked at this in detail, on an independent, non-party political basis, and they do not support the suggestion that there are lots of appeals going through that should not be in there.

[Sarah Sackman]

I will say two things to that. Obviously, that report—as is typical from the Law Commission—is non-partisan, but it predates the reforms we are proposing in the Bill, which will inevitably increase the volume of cases we are talking about. It goes back to the point that, where we have finite resources, if the permission stage filters out only a relatively small number of cases—in fact, that is how I anticipate it will work—then that is all to the good, because even those take up a disproportionate amount of Crown court resources that we can ill afford to have directed to wholly unmeritorious appeals. That is what we are getting rid of.

The other thing is that this test is focused on specific grounds, much in the same way as exists in Crown court appeals. The treatment of that appeal can be directed towards the issue that has been the cause of the appeal, rather than having the whole thing looked at again, which is currently the case.

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[Dr Mullan]

It is about the combination of those concerns, along with the fact that there are unrepresented people. The Minister is right to say that people who have representation, if their appeals are valid, will be able to carry on, because they will continue to meet the test. The reason the Opposition support the broader approach is because there are people who do not know the detail of the law or how to make a successful application. That is why there should be a freer approach. The concern is about those two things combining.

As my hon. Friend the Member for Reigate pointed out, not only are things being made more consequential—longer sentences and a lower likelihood of a jury trial—but at the same time it is becoming more difficult in the other direction. That feels counterintuitive and not in line with what the Government are saying about making the system fairer. On that point, the Government are moving in directly opposing directions.

[Sarah Sackman]

I have heard that argument, but I do not accept it. I do not think the provision makes it less fair. But I accept that there is work to be done, which does not necessarily need to be reflected in the Bill, to support litigants in person, and to examine the approach and the structure to legal aid, to narrow the gap for those who do not have access to it. That way we can reduce the number of people who have to navigate the system without legal representation.

I will not repeat the arguments that I made earlier. For those reasons, I commend the clause and schedule 2 to the Committee.

Question put, That the clause stand part of the Bill.

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[Jess Brown-Fuller]

I beg to move amendment 17, in schedule 2, page 52, line 5, leave out “on payment of a fee” and insert—

“to victims of criminal offence without a fee within 14 days of a request”.

This amendment would make magistrates’ court transcripts free for victims and requires that such transcripts are provided within 14 days of a request.

I first acknowledge that the Government have made steps to improve access to court transcripts after robust negotiations in both Houses and on various Bills, most recently the Sentencing Act 2026, the Victims and Court Bill and now this Bill.

I also put on record the exemplary effort made by my hon. Friend the Member for Richmond Park (Sarah Olney), who has been campaigning to ensure that court transcripts are made available for free for victims of crime, after her constituent was quoted thousands of pounds to access the transcript of her own court case. Nobody should be priced out of seeing their own story.

Why are transcripts important? For many victims, they choose not to attend the entirety of a hearing or trial. Even if they do, there is so much to take in. Being able to process the events of the court case provides a valuable opportunity to better understand why decisions were made and hopefully enables them to move on with their lives.

The Committee had the privilege of listening to the testimony of Charlotte Meijer, alongside other victims, Jade Blue McCrossen-Nethercott and Morwenna Loughman. I would like to remind Members of a few of the things that Charlotte said. She said:

“For me, having transparency really changes things. We talk about justice and the system being closed, so if we have more recording and transcripts, it will really help people. There is something that is not in the Bill that I would love to see; I have fought for the last three years for sentencing remarks to be made free, which we did earlier this year, but I believe that is not going to extend to magistrates courts. If they are now being recorded, my belief is that they should also be free in that way.”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 25, Q49.]

Charlotte spoke about her experience. She did not feel that she could listen to the trial after she had given her evidence, because it was a very small bench and the defendant’s family and friends were sat there. She did not feel like she could go and sit and listen, so she left, but she had indicated that she would like to be there for the sentencing or the hearing. However, she just got a call from her independent sexual violence adviser telling her that he had been found not guilty. She was not given the opportunity to hear that. Charlotte continued:

“For my healing, and for me to be able to move on, I just needed to understand what was said in court, so I went to ask for the transcripts, of which of course in the magistrates courts there are none.”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 26, Q51.]

It is important for victims of crime and victims who see their perpetrators found not guilty to have the opportunity to process that by seeing what happened, whether they were in the room or outside it. The transcript can also be a tool for those who choose to apply to the unduly lenient sentences scheme, which I am pleased that the Government have agreed to improve significantly, after working alongside Baroness Brinton in the other place.

I recognise the concerns raised by the Government, particularly about the cost of producing transcripts and the processing time for redaction, which is all currently contracted out. I am pleased that they have agreed to a proactive trial of AI in courtrooms to improve transcripts, and to a move to record all magistrate hearings. I know that that approach has cross-party support; I have been in the Chamber with many Labour MPs and MPs of other parties who have made exactly the same arguments that I am making now, that providing free court transcripts is a key step towards transparency.

The Minister knows that we have worked collaboratively on reducing the scope in other Bills and have called on the Government to provide judicial summings-up and the route to verdict, including for those whose defendants are acquitted, because there is still a process that they need to go through. I am keen to work with the Government on this. I hope that as the Bill progresses through the House, we can continue the good work that has started on court transcripts.

[Dr Mullan]

I rise to speak in support of amendment 17, which stands in the name of the hon. Member for Chichester. I acknowledge the progress that we have made on the issue; it has not been as fast or as good as personally I would like, but it has absolutely been progress. The hon. Member has laid out some of the important points.

The idea that we will record these proceedings and that the transcripts will exist, but that the victim cannot have them, is obviously not sustainable. If they do not exist at all and nobody has them, that is one thing, but when they are available and some people might be accessing them—defendants, for example—it is really not reasonable that victims cannot, for all the reasons that we have discussed in relation to the Crown court. The existence of recordings will make that less of an excuse. Again, the interaction of different elements of the Bill, with longer sentences, restricted appeals and more serious cases being heard, builds an even stronger case for victims to have access to the transcripts.

The hon. Member for Chichester mentioned the unduly lenient sentence scheme. As we talked about in the context of Crown court appeals and the current use of the scheme, it is pretty hard to appeal an unduly lenient sentence if we do not even have access to the route to sentencing that the judge laid out to explain why they gave the sentence that they did. In my understanding, we have a later amendment that asks for an expansion in the use of the scheme in order for it to be meaningful. We talk about the unduly lenient sentence scheme, but people cannot access it in the magistrates court, even though we are about to put more serious cases into that court. At the minute, people are able to access the scheme when a case is heard in the Crown court. For those reasons, we enthusiastically support the hon. Member’s amendment.

[Siân Berry]

I will speak briefly in support of the amendment, to which I have put my name. Later, I hope to speak about the real difference between viewing evidence—seeing it given in real life, or going into the room where evidence is given—and being able to review it more dispassionately later in writing. Given that we are now producing transcripts, the amendment would be an important measure to provide them free to victims who may want to see what has been said in court, without having to attend court and see it in a more triggering, more visceral way, and without facing a financial penalty. It is important that the amendment is agreed to, along with everything else, to allow for a more compassionate way to treat victims.

--- Later in debate ---

[Sarah Sackman]

I thank the hon. Member for Chichester for tabling the amendment. As she acknowledged, there has been fruitful cross-party working on the issue. I am really pleased to see the progress that we have made, both as a matter of open justice, because timely justice must be fair and transparent, and, candidly, because technology is our friend here and is enabling progress. It must be robust and tested, because the ability of AI to enable redactions where needed has to be properly studied, which is why we have initiated an AI study. But I am pleased with the progress that we have been able to make and that, as a Parliament, we will continue to make.

[Dr Mullan]

I have always struggled somewhat with the question of redaction. If reporting restrictions are in place, what can be shared and so on will be controlled, but anybody can sit in a court and listen to the whole thing, unredacted. I am not quite sure that I understand the absolute focus on transcripts being redacted. If someone could have sat in that court and written down what was said, word for word, why are we worried about its being redacted? The judge is the person who can say, “You can’t report that, beyond what you’ve heard,” but, separately, why are we so much more concerned about transcripts than we would be about open court, where everyone can hear the whole thing?

[Sarah Sackman]

It is context specific, which is exactly why we have a study: to test the level of accuracy. Accuracy is really important; we do not want a lot of judicial time to be taken up reviewing the accuracy of transcripts before they can be put out. That would not be a good use of judge time, which should be spent running trials and getting them concluded. In some contexts, most obviously in family law, redaction is really important.

--- Later in debate ---

[Yasmin Qureshi]

I will not press the amendment, which is self-explanatory, to a vote, but I ask the Committee and the Minister to think about it.

[Dr Mullan]

We now come to a series of considerably less contentious clauses, including clause 8, relating to the admissibility of evidence in our criminal courts. This area of the Bill deals with the sensitive and often contentious issue of sexual history evidence. Of course, we want victims of rape, sexual violence and domestic abuse to experience a justice system that treats them with dignity and protects them from irrelevant, prejudicial attacks. Complainants can be subject to questioning that is invasive and distressing, that may not be relevant or may hold little or no genuine relevance to the legal issues at hand.

Clause 8 seeks to tighten and clarify the rules governing when a complainant’s previous sexual behaviour can be introduced as evidence. The underlying principle is that a complainant should not have their credibility undermined through assumptions, stereotypes or what are often described as rape myths regarding their past.

To achieve this, the clause will replace the current model with a more rigorous admissibility framework. Under the new rules, such evidence may be admitted only if it meets one of two criteria: it must have substantial probative value in relation to a matter of substantial importance to the case as a whole, or it must constitute important explanatory evidence. This shift is intended to ensure that only genuinely relevant material is put before the court.

Furthermore, the clause explicitly requires the court to consider whether the suggested value of the evidence relies on inferences that cannot be properly drawn, to avoid the situation in which evidence is admitted with the defence knowing what inferences be drawn even if it would not be proper to do so. That is another important safeguard designed to prevent the trial process from being distorted by prejudice.

Although the Opposition support the aim of ensuring better protection for complainants, our role in Committee is to ensure that the law is not only well intentioned, but clear, workable and consistent with the right to a fair trial. I am sure the Minister agrees that there cannot be a blanket ban on the admission of this sort of evidence where it meets those tests.

I have a number of questions in relation to the need to ensure that the measure does not create any unintended procedural hurdles. To forewarn the Minister, this will be a consistent question across these clauses, but what assessment has been made to ensure that the substantial probative value threshold is sufficiently precise—not sufficiently high or low, but sufficiently precise—to meet both sides of the coin, and that it is workable in practice? How do the Government intend to monitor the application of the new framework to ensure that it delivers the intended protection for complainants? Is the Minister confident that the drafting strikes the correct balance between protecting victims from inappropriate and invasive questioning and upholding the fundamental right of a defendant to a fair trial?

The need for reform in this area has been well argued, and protecting victims from irrelevant and prejudicial questioning is a goal we all share. However, as I have said, the Committee’s task is to ensure that this clause is the right approach. That is something we should continue to explore throughout the later stages of the Bill.

[Rebecca Paul]

It is truly a pleasure to get to a part of the Bill on which I suspect we will agree more than we will not. I think we will all find that rather refreshing after the last few sittings.

Clause 8 seeks to introduce a new framework governing the admissibility of evidence about the previous sexual behaviour of the complainant. I very much welcome the fact that we are now having this debate and looking to address some of the issues we currently see in the justice system with respect to sexual assault crimes. Rape and sexual violence are horrendous crimes that have a lifelong impact on victims. In oral evidence, we heard this directly from some of the brave witnesses who testified, and I thank them for giving their time so generously and for speaking so honestly and courageously. What was made very clear is that they are keen to see change in how the justice system deals with these types of offences. They want to see justice done swiftly and considerately.

It takes a huge amount of bravery for an individual to report these types of crimes and to pursue their attacker through the courts, so we must do all we can to ensure that the process is quick, supportive, effective and efficient for them, while preserving the principles of natural justice. Although I may disagree with some victims on the limitation of jury trials being a way to achieve this, I share the same ambition: to speed up the process so that justice is no longer delayed and denied.

It is important to remember that most of these crimes are committed by someone the victims knows, making the process even more of an intrusive ordeal. It is deeply personal. That is why it is important to treat victims with respect and care, not to diminish their experiences or feelings, and not to make them feel like they are the ones on trial. It is incredibly important not only for justice, but for deterrence purposes, that the state sends a clear message that those guilty of such crimes will face the consequences. This is much needed at a time when violence against women and girls is rife in our communities. If the state can get this right, we should see more victims coming forward and being more willing to undergo the stress of a trial in the confidence that justice will prevail.

In June 2021, the Conservative Government published the findings of an end-to-end review of the criminal justice system response to rape, which they referred to as the rape review. What it found made for difficult reading. In the prior five years, there had been a significant decline in the number of charges and prosecutions for rape cases and, consequently, fewer convictions. One in two victims were withdrawing from rape investigations, demonstrating a big problem. The Home Secretary at the time, my right hon. Friend the Member for Witham (Priti Patel), said:

“We are not prepared to accept that rape is just ‘too difficult’ a crime to prosecute. We can, and must, do better.”

The review set out that there are an estimated 128,000 victims of rape a year, that less than 20% of victims of rape report to the police, and that only 1.6% of rapes that are reported result in someone being charged. That means that considerably fewer than one in every 100 rapes actually leads to justice for the victim. That shows the scale of the issue. One of the actions set out was that

“only evidence about the victim that is pertinent to the case should be used at court and a victim’s credibility should not be undermined by pre-conceptions or rape myths.”

In the final recommendations issued by the Law Commission in 2025, it was made clear that the use of evidence relating to the previous sexual behaviour of the complainant—for example, previous consensual sex between the defendant and complainant, or between a defendant and a third party—is highly distressing, humiliating and even traumatising, and is often irrelevant and can prejudice a case.

The admission of sexual behaviour evidence has, rightly, long been restricted through so-called “rape shield” legislation, which applies specifically to a trial where a person is charged with a sexual offence. No question can be asked about the sexual behaviour of the complainant without the leave of the court, and various gateways are considered in determining that. However, the Law Commission has criticised those gateways for being too restrictive, too broad and too complicated.

Clause 8 seeks to address some of the issues raised by the Law Commission, and has incorporated the stage 1 recommendation accordingly. It amends the conditions that must be met before a defendant can adduce sexual behaviour evidence or ask questions intended to elicit evidence of sexual behaviour in criminal proceedings. It ensures that such evidence may be admitted only if it

“has substantial probative value in relation to a matter which—

(i) is a matter in issue in the proceedings, and

(ii) is of substantial importance in...the case as a whole”.

However, clause 8 does not include stage 2 of the two-stage framework suggested by the Law Commission, which prohibits the use of sexual behaviour evidence unless its admission would not significantly prejudice the proper administration of justice. The Law Commission has raised that specific deviation in its written evidence. I ask the Minister to give her reasoning for not adopting the second stage, so that we are all clear.

It is reassuring to see the Bar Council welcoming the changes brought by clause 8, which it says

“provide appropriate safeguards for victims and for fairness of trials.”

The Law Society also supports the proposals, along with many other rape crisis and women’s organisations. Having said that, I note that a joint letter from Rape Crisis England & Wales, the Centre for Women’s Justice, Rights of Women, the End Violence Against Women Coalition and Imkaan, while welcoming much of clause 8, raises some specific concerns. It would be helpful to hear from the Minister on those points and whether she intends to make any changes.

[Dr Mullan]

I mentioned this point in my speech, but I will repeat that these clauses interact with the other elements of the Bill that will remove juries. Under the older jury trial system, the judge decides on things that the jury will never hear, so if something is made inadmissible, there is no question at all of it colouring the judgment. Of course, if we remove the jury in potentially more serious cases, we can have all this legislation and all these things that become technically inadmissible, but as we have talked about, we are then relying on the intellectual operation of the judge’s mind. Whether or not people think it is right for them to draw a direct conclusion, it is a matter of fact that judges are a group of people who are more distant and removed from the people we are concerned about. For example, if we are talking about women and girls, judges are more likely to be men. Those are the issues that will become more contentious as a result of the other changes in the Bill.

[Rebecca Paul]

My hon. Friend makes a really important point. There is a lot that is positive about the clause, but, as he rightly says, we have to think about it in the context of all the other changes. Unfortunately, we could find that the other changes unwind the good that is done by this clause. That said, it is still a positive clause, and I am pleased to see it in the Bill and to debate it today.

Lastly, I want to flag that in its evidence, Victim Not Suspect notes a need to address verification and/or the reliability of digital evidence, which it believes is relevant to the admissibility test and has not been addressed in the Bill. It would be useful to hear the Minister’s view on that matter too. Victim Not Suspect says:

“Without forensic verification, including IP address data, account ownership confirmation from platforms such as Meta, and metadata examination, there is no reliable basis for assessing authorship.”

That is a point of detail, but it could become important in certain cases, so it is worth bearing in mind. There may be scope to improve and tighten that up in the Bill during its further progress, which is why I have flagged it to the Minister.

Courts and Tribunals Bill (Tenth sitting)

Kieran Mullan Excerpts

Committee stage
Thursday 23rd April 2026 Public Bill Committees

[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.

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

Clause 12 will make it more routine and straightforward for screens to be used in combination with those measures, helping to provide greater reassurance to intimidated witnesses that they will not be seen by the accused while they give their evidence. These are simple but important steps. Reducing the potential for intimidation or distress will help to ensure that witnesses feel more supported and able to give their best evidence.

[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.

[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.

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[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.

[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.

[Dr Mullan]

On the basis of that discussion, the Opposition do not oppose the clause. We can explore the issue on a good faith basis. I do not think it is critical to the importance of the Bill, so we are happy to proceed. We would, however, welcome some further clarity.

[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”?

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[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.

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[Dr Mullan]

Forgive me if it is published, but if not, perhaps the Minister could write to the Committee on the current state of video technology across the court estate, to support the Bill’s progression.

[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

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[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.

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[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.]

[Dr Mullan]

Will my hon. Friend give way?

[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.

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As Claire observed in front of the Committee, and I think it is a view that is shared by all the members of this Committee, keeping children safe, and the improvements that we need to drive in the family court, do not end with the repeal of this presumption. We think it is important; we think it will send an important direction to the family judges about what we as parliamentarians want them to prioritise; but it cannot end there and it needs to be scaffolded with other measures.

[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.

--- Later in debate ---

The amendments also make a range of consequential amendments to other legislation arising from these reforms. These are generally about deployments or the selection of adjudicators for a range of statutory purposes, such as the provision allowing the Lady Chief Justice to approve deployments to the mental health review tribunal for Wales from the first-tier tribunal or the upper tribunal, where judges operate wholly or mainly within England and Wales. There are further amendments that tidy up the statute book generally—for example, to repeal provisions that insert provision, or to amend tribunal-related statutes when the relevant inserted or amended provision is repealed by the Bill. I commend the amendments 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.

--- Later in debate ---

[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]

I think that, for once, consensus reigns.

[Dr Mullan]

It has a few times.

--- Later in debate ---

[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.)

Courts and Tribunals Bill (Tenth sitting)

Kieran Mullan Excerpts

Thursday 23rd April 2026 Public Bill Committees

[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.

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

Clause 12 will make it more routine and straightforward for screens to be used in combination with those measures, helping to provide greater reassurance to intimidated witnesses that they will not be seen by the accused while they give their evidence. These are simple but important steps. Reducing the potential for intimidation or distress will help to ensure that witnesses feel more supported and able to give their best evidence.

[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.

[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.

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[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.

[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.

[Dr Mullan]

On the basis of that discussion, the Opposition do not oppose the clause. We can explore the issue on a good faith basis. I do not think it is critical to the importance of the Bill, so we are happy to proceed. We would, however, welcome some further clarity.

[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”?

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[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.

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[Dr Mullan]

Forgive me if it is published, but if not, perhaps the Minister could write to the Committee on the current state of video technology across the court estate, to support the Bill’s progression.

[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

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[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.

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[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.]

[Dr Mullan]

Will my hon. Friend give way?

[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.

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As Claire observed in front of the Committee, and I think it is a view that is shared by all the members of this Committee, keeping children safe, and the improvements that we need to drive in the family court, do not end with the repeal of this presumption. We think it is important; we think it will send an important direction to the family judges about what we as parliamentarians want them to prioritise; but it cannot end there and it needs to be scaffolded with other measures.

[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.

--- Later in debate ---

The amendments also make a range of consequential amendments to other legislation arising from these reforms. These are generally about deployments or the selection of adjudicators for a range of statutory purposes, such as the provision allowing the Lady Chief Justice to approve deployments to the mental health review tribunal for Wales from the first-tier tribunal or the upper tribunal, where judges operate wholly or mainly within England and Wales. There are further amendments that tidy up the statute book generally—for example, to repeal provisions that insert provision, or to amend tribunal-related statutes when the relevant inserted or amended provision is repealed by the Bill. I commend the amendments 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.

--- Later in debate ---

[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]

I think that, for once, consensus reigns.

[Dr Mullan]

It has a few times.

--- Later in debate ---

[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.)

Courts and Tribunals Bill (Seventh sitting)

Kieran Mullan Excerpts

Committee stage
Tuesday 21st April 2026 Public Bill Committees

[The Chair]

I will first call Dr Kieran Mullan.

[Dr Kieran Mullan (Bexhill and Battle) (Con)]

I am sure we will get to hear from the hon. Member for Birmingham Erdington shortly.

The proposal in clause 3 is being framed as a mere administrative adjustment—a common-sense fix for a system under strain. The Government’s plan to introduce a Crown court bench division, where a judge sits alone without magistrates to decide the fate of those accused of either-way offences, is being sold to the public as a remedy for the backlogs that currently paralyse our courts. But we must be clear from the outset that the crisis in our courts is not the result of the jury system. The backlog, which sees tens of thousands of cases waiting for a hearing, is the result of long-term challenges and the unprecedented impact of covid on our justice system.

Eroding a defendant’s right to a trial by their peers is not a fix; it is a fundamental reconfiguration of the English legal system. Across the Bill, we see a pattern emerging: a shift away from what we are clear is the gold standard of justice towards a swift model. The evidence supporting it is dangerously thin, and we must resist the permanent eroding of a right that has stood for hundreds and hundreds of years.

The right to a jury trial is often described as fundamental. It is not merely a traditional quirk of our system; it is an important constitutional safeguard. The core of the Government’s plan, as outlined in their impact assessment and the Second Reading briefings, is to remove the right to elect. Currently, if someone is charged with an either-way offence—crimes like theft, assault or certain drug offences—they have a right to choose whether they are tried by a jury in the Crown court or by magistrates. The Government’s plan to strip away that choice in clause 3, under a new bench division model for when the sentence outcome is likely to be three years or less, will remove even the role of lay magistrates from the decision.

The briefing provided by the organisation JUSTICE, which I have referred to several times, makes a compelling case against that. JUSTICE points out that the right to elect is a long-standing protection that ensures that a defendant can seek the judgment of a diverse group of citizens when they feel the state’s power is being unfairly applied. By removing that right, we are effectively saying that the state knows better than the citizen how they should be judged. This is not unheard of, as we have talked about before, but clause 3, combined with previous clauses, represents it being done at a scale never seen before.

This is a dangerous path. When we move cases from juries to a bench division, we are moving from a system of community participation to a system of professionalised adjudication. The jury is the part of our constitution where the greatest number of ordinary citizens have a direct, hands-on role in the administration of justice. It is the primary way that the public grant their consent to the upholding of criminal law. If we remove the public from the process, we risk the law becoming something done to people, rather than something that belongs to them.

The Government’s narrative suggests that a judge-led bench division will be just as fair as a jury, only faster. But it ignores the fundamental and unique aspect of fairness delivered by a jury trial, which they acknowledge by continuing to maintain jury trials for what they describe as the “more serious” offences. A jury is, by definition, balanced. It consists of 12 people from different backgrounds, with different life experiences and different biases, in the crucible of the jury room. Their diversity is its greatest strength; a single judge, no matter how well intentioned, cannot possibly replicate that breadth of perspective.

There is also the phenomenon of being case-hardened: when a professional judge or magistrate hears 50 similar cases of theft or assault in a year, there is a natural human tendency to begin seeing patterns rather than individuals. Evidence that might seem fresh or potentially exonerating to a jury can seem like the usual excuse to a professional who has heard it hundreds of times before.

Juries bring fresh eyes; they are not jaded by the grind of the system. They are instructed to look only at the facts of the case before them. That is why juries are considered—by the Opposition, at least—to be the gold standard. The evidence submitted to the Committee warns that we lack clarity as to why the Government are so eager to discard this standard. If the jury is the best way to ensure an accurate and fair verdict, the burden of proof for removing it must be exceptionally high.

Furthermore, the bench division model threatens to undermine the lay element of our justice system. Originally, as recommended in the Leveson review, the idea was that a judge would sit with two magistrates. That was intended to maintain at least some form of community involvement. However, clause 3 moves towards judge-only trials for many cases, discarding even the judge-plus-two compromise.

I will now address the primary argument made by the Minister in her opening remarks. The Government claim that moving to the bench division will significantly reduce the backlog. However, the Institute for Government has produced an insightful analysis, which we have referred to frequently, suggesting that the evidence for those savings is incredibly weak.

The IFG points out that the vast majority of Crown court time is not actually spent on the types of trials that the Government want to move to the bench division. The cases being targeted are the less serious ones, which already take up less time than more complex cases such as murder, which will remain subject to jury trial. According to the IFG’s modelling, if judge-only trials are 20% faster than a jury trial, the total impact on the overall Crown court backlog would be a reduction of 2%. When we consider the constitutional cost of us losing, at this unprecedented scale, the right to access a jury, that is simply not sufficient.

The backlog is not caused by juries being slow; it is more often caused by ineffective trials that are postponed because witnesses do not show up, because solicitors or barristers are unavailable, or because courtrooms are not fit to operate in. These are systemic failures, and moving a trial from a jury to a judge does not make a witness appear or fix a broken courtroom.

The Bill proposes a threshold of cases likely to attract a sentence of up to three years being diverted to the bench division. Predicting a sentence before a trial is never an exact science, and that is something that magistrates actually have more experience of than judges. That unprecedented scenario—without the safeguards that we sought to add through a right of appeal, which the Government rejected—will create huge questions of impartiality and bias.

A three-year sentence is not a minor matter. Three years in prison is a life-altering event. It can mean the loss of a home, a career and a family. To suggest that a person facing such a consequence does not deserve what they consider to be the fairest possible trial betrays that principle of fairness in our justice system when the consequences are so severe.

There is also the issue of the absence of a sunset clause. If these measures are truly a temporary response to tackle an emergency backlog, they should include a sunset clause that ensures that rights are restored once the crisis has passed. As I have said previously, changes were made during world war two and then reversed when the war was over. The fact that the Government have resisted such a clause suggests that this is not a temporary fix, but a permanent land grab by the state. Once the right to a jury is surrendered for either-way offences, it is highly unlikely that any future Government will be in a position to restore it.

We must see the Crown court bench division for what it is: a policy of convenience, not a policy delivering justice. It is a policy that ignores the findings of the IFG, which would require us to focus more heavily on other elements of the system. It is a policy that ignores the warnings from JUSTICE, which highlight the erosion of the defendant’s right to elect and its impact on public confidence and fairness in the judicial system. It is a policy that even ignores the original, more balanced recommendations of the Leveson review, which at least sought to keep lay magistrates involved.

We are told that we must modernise and that we must be efficient. The purpose of a criminal trial is not to process cases as quickly as possible; it is to arrive at the truth through a process that the defendant, the victim and the public have trust in. If we allow the Government to erode the jury system in the name of the backlog on this occasion to this extent, we are sending a message that this constitutional right is highly conditional, and that it can be traded away whenever the state finds it too expensive or too cumbersome to maintain. As the Minister frequently points out, lots of countries do without it; “Why shouldn’t we?” will be the next argument.

Instead of stripping away rights, the Government should be more focused on the areas that we can all agree on: prisoner transport, early legal advice, more efficient listing, Crown Prosecution Service reviews of cases in the backlog, facilities that work and IT that works. We do not fix a house by tearing it down to its foundations because the roof is leaking; we fix the roof. Jury trials ensure that our laws remain grounded in the common sense of ordinary people. Let us apply some of that common sense to tackling this issue. Common sense will lead us to oppose clause 3.

--- Later in debate ---

[Linsey Farnsworth]

I do apologise, Ms Jardine.

The report by the Deputy Prime Minister, as he is now, was conducted almost a decade ago. It highlighted concern about the sentencing decisions of judges, so it is often cited—understandably—as a reason to be cautious about judge-only trials. New clause 29 would ensure that a review of judge-only trials will be conducted after a year, and should there be disparities in the conviction rates for those of an ethnic minority background and/or for white British persons living in lower-income households, measures can and will be put in place to prevent such disparities from arising.

It is also right that a further review is conducted between 35 and 36 months after enactment, as the new clause suggests, both to check the initial findings and to take account of the fact that things can change. In the review conducted by the Deputy Prime Minister, for example, it was found that where CPS charging decisions were concerned, a defendant’s ethnicity did not affect the likelihood of their being charged. However, subsequent research conducted by the University of Leeds, in which the outcomes of decision making in 195,000 cases between 2018 and 2021 were examined, identified evidence of disproportionality in CPS decision making. Specifically, defendants from minority ethnic backgrounds were significantly more likely to be charged than a white British defendant for a comparable offence.

Additional research by the independent disproportionality advisory group and scrutiny by the CPS itself has led to an action plan to tackle the disproportionality that was found to exist, and to deliver change. There is precedent for ongoing review of disparities in outcomes within the criminal justice system where ethnicity is concerned, and precedent for action being taken to address such disparities.

Recent research by the University of Birmingham identified concern about racial bias within juries, particularly when there is no representation of ethnic minorities among the 12 people serving on a jury. This research cited a case in which an attack on the victim was caught on CCTV, yet in May 2022 a jury with no black members acquitted most of the perpetrators. The researchers concluded that their study raised important questions about whether the public in England and Wales see juries as being fair and just in relation to racial minorities, and that juries in England and Wales remain extremely lacking in diversity; that is what the study found. Another problem the study identified in that case was that the concerns of victims’ families about racial bias among the jury were never investigated.

[Dr Mullan]

Will the hon. Member give way?

[Linsey Farnsworth]

No. I will make some progress; we need to make progress today.

The researchers found that more than 90% of respondents in the survey they conducted believed that discrimination on juries should be reported to trial judges and properly investigated, yet there is no mechanism under current law that allows juries to do so.

Appeal, a not-for-profit organisation, has submitted evidence opposing some elements of the Bill. However, in a paper that it prepared in 2024, Appeal set out concerns relating to majority decisions, as opposed to unanimous jury decisions, and the impact of racial bias. The case of R v. Connor et al was cited, in which questions from the jury suggested that there had been a focus on the defendant’s race and a letter from a juror after conviction confirmed racial bias in the jury’s deliberations.

Section 8 of the Contempt of Court Act 1981 provides for confidentiality in jury decision making. However section 8A, enacted in Scotland, permits the Lord Justice General to allow information about deliberations from the jury room to be disclosed for the purposes of research. That provides an opportunity for the same to follow in England and Wales. Recent statistics show an increase in hate crime, including crime based on race and religion, rates of which spiked after Brexit and, recently, following the Southport murders. Now more than ever, we must be conscious of the impact that discrimination could have on the fairness, or otherwise, of jury trial.

--- Later in debate ---

[Yasmin Qureshi]

No, because let’s face it: in the jury trials we are talking about, people are not getting sentences of more than three years. There is hardly going to be a King’s counsel dealing with those cases—it is not even going to be a leading junior who will deal with those cases. A lot of the barristers will be middle ranking; the KCs will not be dealing with these types of cases. There are enough members of the Bar to fill the capacity issue.

[Dr Mullan]

The hon. Member for Gloucester pointed to what the Bar Council said, but let us be fair and talk about what it said in its completeness. It may well have said that the people currently practising dropped out, but the Minister quite directly asked how it was going to train these people up and get back to that point, and it made the point that the people who have dropped out of practising criminal law have not evaporated into thin air. They are still there; they are just practising in other areas of law, and when the situation is right for them, they can just come back into practising criminal law.

[Yasmin Qureshi]

That is absolutely correct. Of course, one of the reasons why some people left the criminal Bar is the fact that the legal aid funding was not great, but I assure Members that if they did not have other work to do, they would come back to the Bar. There are enough barristers and solicitors in the legal system for that.

--- Later in debate ---

[Yasmin Qureshi]

I entirely agree. The state of some of the courts in this country is sad. They are completely neglected, which creates a lot of challenges.

[Dr Mullan]

We are leaning heavily on the points made by the Criminal Bar Association. The Government seem quite rightly to be extremely concerned about the training of future barristers, but the Criminal Bar Association has made the point that that training often takes place in what the Government are describing as less serious cases. That is where the more junior people get the experience they need to work on the more serious cases. If those cases are not available, how do the Government expect barristers to be trained to the level required to take on the more serious cases with a jury trial?

[Yasmin Qureshi]

I agree with the hon. Member.

I want to set out why we have a backlog and what we can do. Everybody has talked about various things that we could do, such as triaging the cases more effectively and more routinely, like Liverpool Crown court and some of the others that have seen a considerable reduction. There are the issues of transporting prisoners on time and internet connections in court. We have discussed a number of things that can lead to a reduction in the backlog.

I entirely agree with my hon. Friend the Member for Birmingham Erdington and I thank her for tabling new clause 29. The reason why we need it is that, years ago, the importance of jury trials was recognised by the current Lord Chancellor and Secretary of State for Justice, and the fact that the new clause has been tabled shows that we believe they are important. We really should not be restricting jury trials. It is like throwing the baby out with the bathwater.

Courts and Tribunals Bill (Eighth sitting)

Kieran Mullan Excerpts

Committee stage
Tuesday 21st April 2026 Public Bill Committees

[Tristan Osborne]

We are absolutely seeking to reduce the number of cases going before jury trials. It comes back to the thresholds. We have seen a long history of changes to thresholds, as well as changes to those serving on juries. In the early part of the 20th century, women were allowed to sit on juries for the first time, and it was only in the mid part of the last century that we allowed people who did not own property to sit on juries. There has, then, been an evolution in both the composition of the jury and the thresholds that are applied. For example, in 1977 Callaghan changed the law so that some cases—including of theft, burglary and criminal damage offences—could be dealt with in magistrates courts, and many of the debates we are having today happened at that time as well.

[Dr Kieran Mullan (Bexhill and Battle) (Con)]

The hon. Member for Wimbledon pointed out that we are talking about a 50% reduction; can the hon. Member for Chatham and Aylesford tell us the percentage reduction in relation to the points he is making?

[Tristan Osborne]

I do not have the answer for the Callaghan reduction, but my point about the thresholds is that previous Governments of both colours have looked at thresholds, had conversations similar to those we are having today, and concluded that it was a sensible and necessary step—both under Callaghan and Margaret Thatcher.

Sir Brian Leveson, who was independently commissioned, indicated that

“there are certain circumstances where a trial by judge alone is appropriate…based on the need for cases to be resolved in a more timely manner, in a forum most proportionate and suitable to the alleged offence or offences.”

My argument is that the threshold that Sir Brian Leveson defined is the one that I agree with.

[Dr Mullan]

The threshold that Sir Brian recommended was two years, not three years, and the forum that he recommended was a judge with two magistrates, but we are doing just one judge. The hon. Member should be more careful in making claims about what Sir Brian recommended to support what he is saying, because we are not doing what he recommended.

[Tristan Osborne]

The point is that the premise of his inclination was that it is appropriate for thresholds to be changed. Although there will absolutely be principled disagreement between different advocates about where that threshold will be and the appropriateness of who will oversee those cases, be that a bench or a single judge, the reality is that there is consensus, I hope, that thresholds have changed through time. The thresholds in the Bill are a proportionate response to the overwhelming challenge of a court backlog that we inherited from the previous Government. In my view, clause 3 allocates mid-level cases effectively and ensures that demand in Crown courts is reduced. We know the consequences if we do not do this.

To the critics saying this is not fair, the reality is that our constitution says that everyone is entitled to a fair trial, and I believe that everyone in our courts system, be that the 90% who are engaged with magistrates courts, or those who go to Crown court, is dealt with fairly. As has been mentioned, I do not want to create an artificial divide between cases that are heard in one or the other; both are deemed fair, and we believe that people sentenced in magistrates courts are given a fair trial.

The thresholds in the clause are fair and reasonable, and we have to consider this as a wider package of reforms along with the digitalisation of the court system, the modernisation of the estate and improvements to transport and infrastructure, all of which play a part. Fundamentally, it goes back to my central point that those things alone will not bring about the reduction in backlogs that we all want to see.

[Dr Mullan]

I will not speak at length—much to the delight, I am sure, of Government Members—but I want to pick up on a few key points that have been raised. I thank my hon. Friends the Members for Reigate and for Isle of Wight East for their extensive review of clause 3, and also the hon. Member for Bolton South and Walkden, who is not in her place.

Let us be clear about all the things we have highlighted that are lacking. We are talking about a significant erosion for 50% of those who currently enjoy jury trial, and we have made it clear that the evidence for the necessity of that is lacking. In earlier sittings, we talked about the backlog already falling in a number of regions, even though we are so early on in the process of trying to tackle this issue. Today alone, 11% of Crown courts are not sitting—they are sat empty—and it was the same yesterday and it was even higher last week, so there are clearly other things we could be doing.

There has been criticism of the retrospective element of the measures in clause 3, which the Opposition, at least, have agreed is unacceptable. Different standards will be applied because we have not been able to amend the measures on reallocation, so there is a different standard for allocation and reallocation. That is doubled with the lack of appeal, on which we were not able to make progress.

We have covered the lack of community confidence that will arise from these measures. The hon. Member for Birmingham Erdington has tabled new clause 29, which we think is sensible, to try to go at least some way to addressing the issue of community confidence. However, I am not convinced that, even if the Government accept the new clause, we will get any change as a result. Let us say we do the review in a year from now and it finds there has been a deterioration in these issues, will they unpick their reforms? I am not confident that they will.

We have had suggestions that the cross-examination of the defendant is inappropriate. Of course, the reforms will lead to more defendants being cross-examined, unrepresented, in the magistrates court. We have had a suggestion that the changes are not substantial. I made it clear in my intervention that, under any sensible reading of the facts, most people would consider a 50% change to be substantial.

We have laid out, in a clear and detailed way, all the different ways in which clause 3 is wrong and fails on its own merits. I hope the Minister will reflect on that and make some necessary changes.

[The Minister for Courts and Legal Services (Sarah Sackman)]

A number of the points just made were covered in earlier debates. I do not intend to rehearse the Government’s case for why the reforms we are introducing, based on the recommendations of the independent review of the criminal courts, are needed, but we think that they are. The central insight of the independent review was that, absent structural reforms, we simply will not get the shameful delays under control. The three-year threshold that we picked is highlighted in the IRCC recommendation 30, with a three-year sentence being the appropriate basis for allocation to a judge-alone trial.

[Dr Mullan]

Will the Minister give way?

[Sarah Sackman]

I refer the hon. Gentleman to pages 243 and 245 of the independent review. If we want to come back on the detail, we can, but I am going to make progress.

I have dealt with retrospectivity. I want to spend a bit of time on new clause 29, which my hon. Friend the Member for Birmingham Erdington spoke powerfully about. She is absolutely right to highlight the disparities in outcomes across our criminal justice system. This is not something new. The problem was not created by our reforms, but it is something that we seek to transform in the transformation of our courts. We know that, for too long, there have been lower levels of trust and confidence among many minoritised communities. I am keenly aware that those groups experience disproportionality in our criminal justice system. That comes across not just in our courts but in remand decisions, sentencing outcomes and the fact that people who are black or of mixed ethnicity are statistically more likely to be a victim of crime than people who are white.

I welcome the new clause and the intent behind it, as laid out by my hon. Friend. As I said on the first day in Committee, the Deputy Prime Minister committed to an independent review to properly monitor the impacts of not just judge-only trials but all the court reform measures in the Bill on precisely the communities that my hon. Friend is concerned about.

I welcome the opportunity we have had to debate the scope of the review. What I will take away is the fact that some deep thinking needs to be done about having good baseline data, about the scope of the review and whether it could perhaps go even further than what is proposed in new clause 29, about timing to make sure that the datasets can tell us something meaningful about the impacts of the reforms, and about the appropriate feedback mechanism so that Parliament, and future Parliaments, can consider the disproportionality that exists within our system.

It will be important to benchmark the impacts of reforms against the current system. The Ministry of Justice already publishes extensive operational metrics, including on case timeliness, conviction rates and sentencing outcomes, and they provide the insight that we have been debating into the performance of criminal courts today. We have to ensure that we are looking at the right things. My hon. Friend the Member for Birmingham Erdington and I have been discussing an important point. It is about ensuring not just that justice is done, but that it is seen to be done and people can have confidence in the system.

--- Later in debate ---

Since the Secretary of State’s words were written, progress has been achieved. The criminal justice datasets include the equalities data published by His Majesty’s Prison and Probation Service, the Crown Prosecution Service and the Judicial Appointments Commission, and all that rightly shines a light on the disparities that exist within our system. We attempt in this legislation to provide transparency and accountability, whether through the recording of magistrates proceedings or the efforts to make transcriptions available—our feet are being held to the fire on that by Members across the House, but it is important—and transparency and accountability are core principles that run through the Bill. There is also the giving of reasons when a judge takes the decision. It is so important that they justify the conclusions they reach so that the justification can be scrutinised. Of course, there is also the review clause that we will look to introduce at a future stage.

[Dr Mullan]

As I alluded to, it seems like the Government are convinced of the need for a review clause. If the review is undertaken and it finds that the reduction in jury trials has led to greater disparities in the justice system, will the Government commit to reversing the measures?

[Sarah Sackman]

An important point was discussed in earlier exchanges with the hon. Member for Isle of Wight East. While I absolutely accept that marginalised communities experience lower confidence in the criminal justice system, the current data, certainly as regards triable either-way offences and conviction rates—both for men and women, and for black, Asian, mixed race or white individuals—shows that those disparities do not actually exist based on the conviction rate data. All that is set out, and Members can find that on page 51 of the equality impact assessment.

We do, though, need to get a really good sense of the baseline. If the review shows a deterioration of the position, and if the cause of that deterioration is found to be the measures themselves, then of course future decision makers, policy makers and Parliaments will want to respond and mitigate the effects. That is not to be understood as my saying we are going to rip up the Bill, because we believe that what is in the Bill is fair, and guarantees fairness at every level of the criminal justice system. But we want data and information precisely so that if disparities are exposed by the review, and if there is a worsening position, then whether it is me or someone else lucky enough to fulfil this role, someone will no doubt respond. That is exactly the point.

To my mind, this is an opportunity not just to understand and monitor the impacts of the Bill, but to develop a better understanding of outcomes across the criminal justice system, and how we improve them. Given our commitment to undertake a review of the wider reforms, I urge my hon. Friend the Member for Birmingham Erdington not to press the new clause to a vote.

I want to pick up a couple of other points, which we may pick up later. We discussed at some length the application of the law as it stands to the existing caseload and the allocations decision. During Thursday’s Committee, the hon. Member for Bexhill and Battle raised questions with me about three-strike offences. In order not to take up further Committee time, I will write to the hon. Member to address those point, and I am happy to make that correspondence available to the Committee and the wider public. However, I can confirm that clause 3 does not alter the existing statutory framework for those offences.

In a similar vein, we had an exchange about situations where allocations are not amenable to judicial review, and we discussed the operation of section 29 of the Senior Courts Act 1981. I intend—not least because we have also had correspondence from the Bar Council in relation to this issue—to write separately in relation to those questions. I will ask the Chair to publish that letter on the public register of written evidence, so that all Members can clearly see the Government’s understanding of the position.

[Dr Mullan]

The Minister can probably anticipate what I am going to say: this situation is highly unsatisfactory, considering that we will again be asked to vote—not have a view or give an opinion, but be asked to vote—on the system of allocation and reallocation in relation to complex and lengthy trials. Members may have seen the evidence provided by the Bar Council, which makes absolutely clear its view that the Minister was wrong in her assessment that the decision to allocate will be subject to judicial review. That was my view, the view of the Bar Council and the view of the hon. Member for Wimbledon, with his expertise. It is not satisfactory to be told we will vote again later today not knowing what the Government’s clear position is. What the Minister said is now surely under very significant doubt, given what the Bar Council has told us. The Minister should have been able to come here today—rather than writing to us later—to give us the facts. We have had a big gap between Thursday and today, and we should not be left in the position of being asked to vote without the full facts.

[Sarah Sackman]

I was about to get to the essential position, which is that what I said on Thursday is twofold. What we were debating was in the context of whether there was an appeal route in relation to the mode of trial decision—the allocation decision. I have been absolutely clear that nowhere in this Bill is there any specific route to appeal, and I have never sought to suggest otherwise.

Taking a step further, the law points against there being a jurisdictional power for judicial review on an allocation decision. Where the Bar Council’s letter discusses the availability of judicial review, it sets out that section 29(3) of the Senior Courts Act significantly limits the circumstances in which judicial review will be available for decisions affecting the conduct of a Crown court trial. That is the point that is raised in its letter, and to which I will provide a line-by-line response, but the Government essentially agree with that position.

As I have said in Committee—if any of this was not clear, let me be clear about it now—there is a very high bar. There might be exceptional circumstances, which might well be tested when this legislation, if it comes forward, comes into force. For example, if a Crown court judge clearly acts outside the parameters of the legislation by allocating a case that is clearly excluded under these provisions from being judge-only—because it is, say, complex and lengthy or indictable-only—that may fall outside of this rule, but it is certainly going to be only an exceptional case.

The best thing for me to do is write, so that Members can see what those reasons are and see what the Government’s position is. Essentially, we think that what is set out in the Bar Council’s letter as regards the availability of judicial review—there is no appeal route, and I have never suggested otherwise—correctly states the law.

[Dr Mullan]

Just so the Committee is clear exactly what I said and what the Minister said in return, it was in response to an intervention from the hon. Member for Birmingham Erdington, who asked what it would take to get me to accept the Government’s position. I said:

“If the Minister wants to intervene on me and say, ‘I am absolutely certain that there would be a right to judicially review the allocation decision by a Crown court,’ I will be satisfied. I am asking for the Minister to stand up and say that she is absolutely certain.”

The Minister replied:

“If, at a PTPH, a judge makes an error of law, that is amenable to judicial review. Full stop.”––[Official Report, Courts and Tribunals Public Bill Committee, 16 April 2026; c. 271.]

That is completely different from what the Minister has just said now, where she is making it very clear that this will be extremely in its provisions.

The appropriate thing to do is not to vote on amendments and clauses of this Bill when we are not clear on the position. It is open to the Minister to defer and to seek to reallocate the proposals before us today, instead of again asking us to vote when she is telling us that she will send us a further letter with a full, detailed explanation of the position. That is not the way we should be doing things on a matter as important as whether we will remove an expansive existing right to judicially review an allocation decision that sits with the magistrates court.

[Sarah Sackman]

As regards the last point, Ms Butler, I am ultimately in your hands as to how you want to deal with it. I have said how I am going to deal with it, and what I consider the position to be vis-à-vis the operation of section 29 of the Senior Courts Act 1981 and the availability, or lack thereof, of a judicial review route. There is no appeal route. An allocation decision in this context is final, and deliberately so, because we want to speed up the system. There are other appeal routes when one gets to questions of verdict.

I have said that I will set that out. I do not want to rush Members or not provide them with the full information, and I am seeking to be as transparent as I can be. As I said, we will write to the Committee, so that everyone can have the full information. I do not think the issue radically changes the substance of our debate, but given the position the shadow Minister has taken, I will not force the point. I would rather that we ventilate the issues fully, Members get the letter and we then vote accordingly.

Ultimately, I have made it clear that there is no specific appeal right or route to challenge the mode of trial allocation. There are, however, a number of safeguards, including a judge hearing from both parties and giving reasons for the decision. Those all safeguard the allocation process, but if there is any lack of clarity that I have contributed to, albeit inadvertently, in relation to how JR interacts with the Senior Courts Act, let me set the information out, and Members can have it before we proceed.

[Dr Mullan]

On a point of order, Ms Butler. I am being reasonable. On the matters on which the Minister said she would write to us—the three offences and whether there will be amendment in that respect— I have accepted a letter. However, it is not appropriate to ask us to vote when we are unclear about the implications of these changes. We have already had to do that once, and it is not appropriate to ask us to do it again. We can debate the clauses, which relate to the potential loss of an important right, but we do not necessarily have to vote on them. I have never said there was a right of appeal; I have never described it as a right of appeal. I have said that there is a right to judicial review of an allocation decision. It is not right that we proceed without knowing the full implications of that being taken away through the Bill.

[The Chair]

It is up to the Minister how we proceed. We could suspend the sitting—[Interruption.] We are going to suspend the sitting and sit in private.

--- Later in debate ---

[The Chair]

We continue with the Question that clause 3 stand part of the Bill.

[Dr Mullan]

I beg to move, That the debate be now adjourned.

We have had some discussion in private, and I think it will be helpful, while not revealing what was said in private, to illustrate the Opposition’s thinking on the matter. As I explained during our previous sitting on Thursday—there has been a significant length of time since—I was of the understanding that moving the allocation decision away from the magistrates court to the Crown court would lead to a substantial reduction in access to judicial review of allocation decisions. This is not about appeal—we argued separately for appeal. Rather, the point of contention is about the right to judicial review. In that debate, the Minister, I am sure inadvertently, potentially misled the Committee by suggesting that that was not true, and I was called patronising by the hon. Member for Cowdenbeath and Kirkcaldy, the Parliamentary Private Secretary sitting behind her, when I suggested that that was the case.

The Bar Council has submitted evidence to the Committee that supports my argument that there would be a substantial change in access to judicial review. That is directly relevant, not just to clause 3, which we are being asked to vote on, but to the next clause. The Minister accepts that she needs to write to us with further clarity on this issue, so she is conceding that it is not clear, but we are still being asked, by the Government Whip and the Minister, to vote on this measure. That is highly unsatisfactory. I want us to vote with a shared understanding of what the implications are. If the Minister agreed that there would be a significant reduction in access to the right to judicial review, we would have that shared understanding, but I do not believe that she is willing to concede that point.

On the basis that it is unclear what we are voting on, I am afraid that it is simply not appropriate for us to be asked to vote on clause 3. That was not my intention; I was of the understanding—I accept incorrectly—as I think the Minister also was, that we could shelve the vote and continue the debate, so that progress on the Bill was not curtailed. However, the Clerks have advised us that we cannot shelve the vote, so if this is the only available option to prevent us from voting without the full facts, I think it is appropriate that we adjourn the debate until such time as we get them. To reiterate, this was not my intention; I had expected that we would continue the debate and then have an option—[Interruption.] Does the PPS want to say something? No. On that basis, I think that we should adjourn.

[Sarah Sackman]

I oppose the Adjournment because I want us to make progress. Everyone is here to continue the important work of line-by-line scrutiny. I do not think that anything that I have said, to assist the Committee and Members across the House, should undermine that approach, so we should proceed.

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[Mr Kohler]

To my mind, that would appear to be a clarification.

[Dr Mullan]

I think the Minister is accepting that there is no obvious route to judicial review, which is completely contrary to what she said to us on Thursday. I think anyone would interpret that as a significant reduction in rights compared with the existing status quo, so with that clarification from the Minister, I am happy to continue.

Question put and negatived.

Question put, That clause 3 stand part of the Bill.

--- Later in debate ---

Trial on indictment without a jury: complex or lengthy cases

[Dr Mullan]

I beg to move amendment 45, in clause 4, page 10, line 16, leave out “one or more of the offences is an offence” and insert “all of the offences are”.

This amendment would limit judge-only trials to situations where all of the offences are listed in Schedule 3ZA.

Clause 4 relates to the allocation to the Crown court bench division of complex or lengthy cases. The amendment relates to how the mixture of cases presented on an indictment would affect the allocation decision. It addresses a clear overreach and would limit judge-only trials to situations where all the offences of which someone was accused are listed in new schedule 3ZA to the Criminal Justice Act 2003.

As it stands, a case may be directed to be judge-only where only one of the offences on the indictment falls within the schedule list, with only very limited exceptions in relation to murder and related offences, and sexual assault and related offences. It is important for Members to realise just how potentially expansive new schedule 3ZA is. If just one of these offences appears on someone’s list of charges, they will lose their access to a jury trial. They include conspiracy to defraud, cheating the public revenue, offences under the Taxes Management Act 1970, offences of false accounting under the Theft Act 1968, insider dealing, money laundering and bribery—a whole range of offences whereby, just one of which will remove access to a jury trial.

Someone could be accused at the same time of offences as serious as serious physical assault, grievous bodily harm, burglary or theft. Those offences may be many years apart; there may be a series of offences, dating over a number of years. That means that someone may lose a right that the Government otherwise accept they should have access to. Someone could have a serious offence of theft, with a likely sentence that, as we know, can be over the three-year benchmark. They could be facing a sentence of four years, which the Government otherwise agree should allow them to have a trial with a jury, and they will lose access to a trial by jury in relation to one of the other offences.

The test is not about the seriousness of the offences; it is a test of complexity. Someone may have a less serious but complex case, in the Government’s view, and lose access to a right to jury trial. I cannot see how the Government can possibly argue that that is fair. This is a matter of coherence and fairness. Our position is quite clear: only when all the offences, instead of just one of the offences, are those listed under proposed new schedule 3ZA should someone lose access to their right to a trial by jury on the basis of clause 4.

[Sarah Sackman]

I thank the hon. Member for his amendment, which would require cases to be eligible for an order under proposed new section 42A of the Criminal Justice Act 2003 only where all offences listed are schedule offences. We consider that such a method would be overly rigid and would limit the application of clause 4. In reality, most complex and lengthy cases involving fraud and financial crime often prosecute a mix of principal and ancillary offences, some of which would not appear on the schedule of eligible offences. For example, sometimes theft offences, which are not included in the schedule, are prosecuted alongside fraud or money laundering crimes.

Imagine a large-scale conspiracy to defraud and false accounting, perhaps involving multiple offenders operating through a network of shell companies. The prosecution case relies on hundred, perhaps thousands, of pages of electronic banking records, company accounts, internal emails, encrypted messaging data, and expert accounting evidence that traces the movement of funds through dozens of linked corporate entities across multiple jurisdictions. This is in every sense a highly technical and inherently complex case, which is likely to last several months. But there are counts of theft-adjacent offences of, say, handling stolen goods on the indictment. Those counts are not incidental: they are related to the fraud. They provide the fact finder with a holistic picture of the alleged offending. The judge considers the counts to be clearly related and properly joined for trial. If clause 4 were constrained in the way proposed by the amendment, that plainly suitable case—long and exceptionally complex—would be excluded even from consideration for judge-only trial, because those additional connected counts are not listed in the schedule.

Requiring every offence to fall within the schedule would exclude cases that meet the policy intent of clause 4, thereby preventing the court from applying the provision precisely where it is most needed, solely because of the presence of additional non-schedule counts.

[Dr Mullan]

As I mentioned, the Government have chosen to exclude all sexual offences. If that is the logic that the Government seek to apply, why have they chosen to not apply it to an adjoined offence that is a sexual offence?

[Sarah Sackman]

The Government have deliberately drafted clause 4 in a manner that focuses on the overall nature of the case, rather than applying an artificial count-by-count test. The necessary question that we are asking the court to apply is whether, taken as whole, it justifies an order for a judge-only trial, given the policy intent that lies behind clause 4, not whether every individual count meets a particular threshold. Such an approach also risks incentivising artificial charging decisions or indictment charges to determine the eligibility for mode-of-trial decisions, rather than focusing on the effective management and efficient conduct of the trial.

[Sarah Sackman]

My hon. Friend is right. Flexibility is not a weaking of the safeguards; it is what actually allows the statutory test in clause 4 to operate properly and in appropriate scenarios.

Judges will already be required to consider the technicality and length of the case when making an order as to whether to allocate to a judge-only trial. Cases including indictable-only homicide and sexual offences are excluded from the outset because we regard those as cases where a jury trial is in the public interest. For those reasons, I urge the shadow Minister to withdraw his amendment.

[Dr Mullan]

I want to pick up on the point made by the hon. Member for Amber Valley. She has engaged sincerely throughout this debate, so I do not think her comment was a deliberate. We are not saying that someone has to be charged with everything to be eligible; we are saying that anything that they are charged for on that basis that excludes them from a jury trial should only be those offences. We are saying that if someone is charged for insider dealing and the judge decides that the case is complex or lengthy, under the legislation they will get a single-judge trial. The proposed legislation says that if they were also charged with grievous bodily harm, then that case, which would ordinarily continue to have a jury trial, would be seen without a jury. That would mean that just because someone happens to be charged with one of those offences alongside another one, they lose their access to a jury trial on both offences.

[Jess Brown-Fuller (Chichester) (LD)]

The point that the shadow Minister is making is that the clause is a substantial expansion of what we understand the legislation to be doing in terms of a judge-only trial. Somebody could be charged with 10 offences. One of those could be related to a lengthy fraud case, but the rest of the offences would mean that they would still get a judge-only trial, which is a significant expansion of what we believe this Bill is trying to do.

[Dr Mullan]

Absolutely, and there is not even anything in the Bill about proportionality. There is nothing. If someone is charged with one of the offences and the trial will be complex and lengthy—which is different to it being serious—that is it. Whatever else someone is charged with, they have already lost their right to a jury trial. That is a huge expansion.

I intervened to ask the Minister to explain why they have chosen to exclude sexual assaults. If someone is charged with GBH, then they lose their right to a jury trial, but if they are charged with a sexual assault, which in the sentencing guidelines may lead to them having an even lower sentence than a serious GBH, they will continue to have a jury trial, and a fraud offence would continue to be seen by a jury instead of a judge. It is completely contradictory. There is no logic behind the Government’s position. If they had a throughline as to why sexual assault, which is an absolutely terrible offence, is being set to one side, but something as serious as GBH, which can carry a sentence of many years and is also terrible for victims, then there would be more logic to it. But the Government have crafted an approach that is simply unfair and, as the Lib Dem spokeswoman pointed out, represents a massive expansion in all the different types of offences and sentence lengths that could potentially lose access to a jury trial, just because they also happen to be charged with an ancillary offence related to complex fraud. I am afraid there is no rational basis to that at all.

[Jess Brown-Fuller]

In the last couple of weeks, there have been press reports about a particular case that was charged in 2019. I will not go into that because it is going to reopen, but clause 4 would mean, for example, that somebody who has been abusing and defrauding the elderly—perhaps many different elderly people—over many years and has caused significant harm not of a sexual nature, and who is therefore charged with multiple offences, gets a judge-only trial and is not tried by a jury. If there was a sexual offence, they would get a jury, but if they had been harming multiple people and defrauding them, they would be tried by a judge alone. Does he agree that that feels quite perverse?

[Dr Mullan]

It is another example of what we have talked about: the move away from what we would consider to be natural justice. The scenario the hon. Member points to is not bizarre; there are offenders who target elderly women, for example, and will use all sorts of different methods to abuse them, from financial to sexual. I have seen cases of that nature. We see people who, at the same time as physically and sexually abusing a family member, were taking money from their bank account and falsely representing them to claim benefits, which again would be covered by the clause. It covers a whole range of offences, in all sorts of patterns. The Government call our amendment too rigid when, actually, the rigidity is quite clearly in the charging and allocation decisions; it is all on the Government’s side. They are being entirely rigid. If someone is subject to one of these cases and the judge thinks it is complex or lengthy, they will lose the right to a jury trial, end of story. I do not think that is a position that the Minister should feel comfortable advocating, and it is why we intend to press our amendment.

Question put, That the amendment be made.

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To conclude, the question is not whether juries can handle complex cases, but whether we are prepared to remove a fundamental safeguard instead of fixing the system. These clauses do not address the cause of delays or solve the backlog, but they do risk undermining confidence in our justice system, while offering at best uncertain and marginal gains. Therefore, I again ask the Government to reconsider this clause. Let us adopt some of the safeguards, as well as some of the ways we can reduce court delays, so that we can continue with our jury system, which is genuinely known as the best in the world.

[Dr Mullan]

I rise to speak in support of Opposition amendment 46, which is in my name, as we debate elements of the Government’s proposals to remove jury trials and make use of the new Crown court bench division in relation to potentially complex and lengthy trials.

To make sense of this debate, we must consider how the measures will apply. As we touched on earlier, the Government’s stated aim is to reduce the time taken to hear particularly lengthy and complex cases by permitting judge-alone trials and therefore—they say—freeing up additional Crown court capacity. The cases must involve at least one fraud or related financial offence listed in proposed new schedule 3ZA, which includes fraud by false representation, cheating the public revenue, money laundering and other offences, and would not involve an indictable-only homicide offence or sexual offence, including attempts or conspiracies to commit such offences.

We can already see, when considering the written evidence we have received, why there are rightly many questions about how the provisions will operate. In amendment 46, we therefore propose a requirement to ensure that defendants have a route in the law back to a jury trial. I draw the Committee’s attention to the evidence of Dr Natalie Hodgson, from the University of New South Wales, and Dr Matt Thomason, from the University of Nottingham, which was particularly helpful. They point out:

“Currently, the proposed s.42A of the Criminal Justice Act 2003 does not define what is meant by “lengthy” or “complex”...Similarly, the proposed legislation provides no detail as to what judges can and should consider in determining whether ‘it is in the public interest’ for the trial to be conducted by judge alone. The Explanatory Note makes clear that ‘the court will retain full discretion’ as to whether it is appropriate to order a trial by judge alone.”

That is giving judges enormous power over these decisions.

Dr Thomason and Dr Hodgson also say:

“In contrast, we note that in New Zealand—which has a similar provision permitting judge-alone trials in cases ‘likely to be long and complex’—the relevant legislation sets out with greater specificity what a judge should consider in determining whether a case is likely to be long and complex…In particular, the New Zealand legislation specifies that a Court must not order a judge-alone trial unless all reasonable measures and arrangements have been taken to shorten the length of the trial, but the ‘duration of the trial still seems likely to exceed 20 sitting days.’”

So New Zealand was capable, in its legislation, of drawing a line in the sand as to what it considered to be a lengthy trial, but we do not seem to be doing the same.

[Jess Brown-Fuller]

The hon. Member is making a really interesting point about what we perceive to be lengthy or complex, as the hon. Member for Bolton South and Walkden tried to do with her amendment. Amendment 29 seeks to define a lengthy trial as one going beyond the five-month point, but Geoffrey Rivlin KC collected data over six years from Southwark Crown court—the primary venue for complex financial crime trials—which showed that the vast majority of fraud cases lasted less than three months, with only one or two typically lasting more than that, and only two cases in total lasting over six months. Does the hon. Member for Bexhill and Battle agree that it would be helpful for the Minister to clarify what she believes “lengthy” or “complex” to be? The judiciary will also be asking that.

[Dr Mullan]

The hon. Lady is absolutely right. The Minister is always keen to draw lessons from other jurisdictions, and as I said we have a clear lesson from another jurisdiction that is specific. In our system, my understanding is that the practice directions for complex cases are that the prosecution and defence should do everything possible to make sure a trial does not last longer than six weeks. So that is another example where we might expect the Minister’s view.

Dr Hodgson and Dr Thomason go on to say:

“The New Zealand legislation also specifies that judges should consider the following factors in deciding whether the defendant’s right to trial by jury is outweighed by the likelihood that potential jurors will not be able to perform their duties effectively.”

Those include

“the number and nature of the offences with which the defendant is charged…the nature of the issues likely to be involved…the volume of evidence likely to be presented…the imposition on potential jurors of sitting”

for a long time and

“any other matters the court considers relevant.”

Again, that is much more specific than the measures we have before us.

The written evidence continues:

“In New South Wales, Australia—where judge-alone trials can be ordered when a defendant elects a judge-alone trial and the judge considered that a judge-alone trial ‘is in the interests of justice’—the legislation specifies that, without limiting the factors a Court may consider, ‘the court may refuse to make an order…if it considers that the trial will involve a factual issue that requires the application of objective community standards’ such as an issue of reasonableness, negligence, or dangerousness.”

Again, that cuts to the heart of the difference in our approach. We have talked about matters of dishonesty and the different elements of an offence that we might seek to prove. Even if a trial is highly complex, if it comes down to a judgment about reasonableness, behaviour and the choices people make, that is where a jury trial comes in. The approach in the Bill has a comparative lack of clarity and specificity, and that is why I have tabled amendment 46, which would weight things back towards the defendant, who at this stage is still innocent until proven guilty.

Even if the general right to elect for a jury trial is restricted for certain offences, defendants must be allowed to elect for one where they can demonstrate that a summary trial would violate the principles of natural justice. That is vital for individuals with a previously unblemished character or those whose livelihoods are directly imperilled by a conviction. The evidence from the Institute for Government and JUSTICE, and from recent parliamentary debates, is clear that a one-size-fits-all approach to efficiency risks compromising the integrity of the justice system it seeks to serve.

In relation to similar Opposition measures on previous clauses, the Government said that if they supported us, they would lose the court time they were seeking to secure. Let us remind ourselves of how questionable those claims are. The Institute for Government believes that the Government’s claims are highly uncertain, and others have questioned whether the claimed savings will ever actually be made; we will visit that later—for example, when we discuss the summing up the judge will need to make. The backlog is largely a product of longer-term issues related to, for example, judicial vacancies, prison transport, lack of early pleas and all sorts of other reasons not related to jury trials. So the efficiency gain is marginal, and we must ask whether it is worth the constitutional cost.

By forcing complex cases or those with high personal stakes into a bench division, we are essentially prioritising a spreadsheet of data over citizens’ rights to be judged by their peers. A natural justice exception would act as a safety valve, ensuring that speed does not override the fundamental fairness of the proceedings. Why does it matter whether a judge or a jury hear a case? In many instances, the legal outcome might be the same. However, the process of reaching the outcome is where natural justice resides.

In his paper “For Mercy’s Sake”, Geoffrey Robertson KC emphasised the importance of jury equity—the ability of a jury to look beyond the strict letter of the law to the broader circumstances of a defendant’s life. He is right to argue that a jury possesses the unique capacity to dispense mercy where the law, in its rigidity, cannot. For a defendant of previous good character or one whose career hangs in the balance, the collective common sense of 12 citizens provides a bulwark against the mechanical application of statute, which may result in an outcome that is legally correct but morally disproportionate.

That is the essence of my argument: for a first-time offender, the move from a clean record to a criminal conviction is a life-altering transition. In some cases, the evidence may be nuanced or the impact of a guilty verdict may be uniquely devastating, such as the immediate loss of a professional license or employment. In previous debates, we referred to the fact that MPs might suffer those consequences, as would doctors, judges and all sorts of other people. When the defendant can show that the consequences of a trial are so profound that they require the ability to exercise their right to a jury, rather than just a professional bench, the law should accommodate that request.

When we speak of natural justice, we speak of the right to be heard in the manner that is fair. If the defendant can demonstrate that their case involves something that a professional bench might treat with case-hardened cynicism, the system must remain flexible. The Law Society highlights that public trust in the legal system is inextricably linked to the jury, and that the perception of fairness is as important as the reality. If defendants feel that they have been processed through an administrative division, rather than tried by their peers, the moral authority of the sentence is diminished.

Critics will argue that an exception for natural justice will lead to every defendant claiming they are a special case, thereby clogging the system further. That is a misplaced fear; we already have established legal tests for interests of justice in other areas of the law, such as the granting of legal aid or the admissibility of evidence. In fact, just yesterday, the Government accepted a reform to expand the eligibility to apply to the unduly lenient sentence scheme, when it is in the interests of justice to do so.

In an earlier sitting, the hon. Member for Bolton South and Walkden helpfully approached similar issues with an amendment that was more specific about the situations in which we might agree that natural justice should allow for a jury trial—for example, when the defendant is of good character, has not previously been convicted of an imprisonable offence, or will be treated as a rehabilitated person under section 1 of the Rehabilitation of Offenders Act 1974, or where being convicted of the offence or offences for which they are to be tried would likely result in significant reputational damage or their employment or professional qualifications being adversely affected. As I discussed in previous debates, those are all scenarios in which we think not having a jury trial would be against the interests of natural justice, and which our amendment seeks to curtail.

To conclude, the Bill in its current form is too blunt an instrument in relation to the decision to remove the jury. The tests set by the Government are not well defined and are too heavily weighted against the rights of the defendant. That is why our amendment introduces a stronger requirement to consider the matter from the perspective of the, until proven guilty, innocent defendant and what represents natural justice for them. By incorporating this safeguard, we preserve the mercy and common sense that Geoffrey Robertson KC so eloquently defends. Yes, justice must be efficient, but above all it must be fair. Let us not sacrifice the principles of natural justice on the altar of administrative expediency. Let us allow defendants who can show just cause to elect for a jury they deserve.

[Yasmin Qureshi]

I will not press my amendment to a vote. In fact, Ms Butler, I notify you and the Committee that I am not asking to vote on any of my amendments.

--- Later in debate ---

[Yasmin Qureshi]

I thank the Minister for her response. My amendments are short and easily identifiable. I think the offences I have suggested should be included within the categories of certain murders and homicides, but as I said earlier, I will not press the amendments to a vote.

[Dr Mullan]

rose—

[Sarah Sackman]

Forgive me, Ms Butler, is it possible that I have not addressed the amendment tabled by the hon. Member for Bexhill and Battle?

[The Chair]

Amendment 46.

[Dr Mullan]

indicated assent.

[Sarah Sackman]

Finally, let me address amendment 46. As Members will get sick of hearing me say, the courts are facing an unprecedented challenge. Although relatively few in number, cases involving fraud and serious financial crime are some of the longest and most demanding trials in the Crown court. In that context, and in line with the recommendation of the independent review of the criminal courts, we have taken the decision to introduce judge-only trials for lengthy and complex cases. The policy is intended to create an additional, tightly defined and controlled discretion for a very small number of cases where the burden on jurors and court resources is excessive, ensuring that cases are dealt with efficiently while maintaining fairness and judicial rigour.

[Dr Mullan]

I am in danger of not knowing my figures, but I think the impact assessment suggests that 25% of cases in the list of offences will be included, so I am not sure whether it is reasonable to describe that as a small proportion—I do not know whether the Minister said “proportion” or “number”. How many cases does she think it will involve?

[Sarah Sackman]

My understanding of the time saving—we measure it in the context of Crown court sitting days—is that we are looking at around 500 sitting days, which no one is suggesting is a huge number. As I said, the reality of how we expect judges to apply the provision in these cases is that jury trial is the default. The provision in clause 4 is fairly narrowly drawn, so we do not expect that lots of cases will be captured by it, but we expect that lengthier fraud and financial crime cases that come within the provision will result in significant time savings—significant when every little helps, to put it that way. I hope that answers the hon. Gentleman’s question.

As I have said previously, the principles of natural justice—the way in which the amendment is framed—are preserved in the framework provided by these reforms. We think that makes the introduction of an additional, open-ended safeguard unnecessary.

The right to a fair trial, protected under article 6 of the European convention, is preserved here. Judges will be required to apply the statutory test carefully and under the proper safeguards of clause 4, considering suitability and public interest on a case-by-case basis. It is not a category approach; it is based on the individual nature and facts of the case. Judges will also, in accordance with the established principles of fairness and open justice, have to give reasons for those allocation decisions, which we think will also ensure a level of accountability. We think that judges, in accordance with their judicial oath, will do this transparently, fairly and well. For those reasons, the amendment would not add to a procedural safeguard, and I urge the hon. Member not to press it.

--- Later in debate ---

Division 15

Question accordingly negatived.

Ayes: 6

---

Conservative: 3
Liberal Democrat: 2
Green Party: 1

Noes: 9

---

Labour: 9

[Dr Mullan]

I beg to move amendment 47, in clause 4, page 11, line 1, leave out from “is” to end of line 2, and insert

“a right of appeal against a decision to make an order under this section on the grounds of natural justice.

(5A) where an appeal is made under subsection (5), it must not be heard by the judge who made the original determination.”

This amendment would add a right for defendants to appeal against the decision for a judge-only trial for lengthy and complex cases.

Much of our discourse has focused on whether judge-only trials should exist at all, but as with the previous amendments, we must also address the critical procedural omission in the drafting of this clause: the absence of a clear interlocutory right of appeal for a defendant against a decision to allocate them to a judge-only trial. The Government’s stated aim is efficiency, but efficiency without a safety valve of oversight often leads to systemic instability. By denying a defendant the right to appeal an allocation decision before the trial begins, we are not streamlining justice but creating a procedural blind spot.

We believe that providing an immediate right of appeal is not only a matter of fairness, but the most efficient path available to the court. As we debated in relation to clause 3, on the Crown court bench division, the lack of such a mechanism risks baking in errors that can be rectified only through costly and time-consuming post-trial appeals.

The pursuit of headline-ready speed must not eclipse the logistical reality that a trial conducted in the wrong forum is a wasted trial. If an allocation decision is found to be flawed only after a conviction, the state incurs the double cost of the original judge-led hearing and a subsequent jury retrial. If a case is allocated incorrectly, the defendant currently has no immediate recourse, and they must undergo the entire trial in the bench division. If, on appeal against conviction, it is determined that their allocation was indeed improper, the entire proceeding is voided.

An interlocutory appeal lasting perhaps one or two hours is a negligible investment compared with the risk of a three-week trial perhaps being overturned on a procedural technicality regarding allocation. By resolving the question of the right forum at the outset, we ensure that when a trial does proceed, its verdict is final and resistant to procedural challenge. That is the true meaning of efficiency.

--- Later in debate ---

[Sarah Sackman]

The amendment would effectively introduce a new right of appeal against a decision to order a judge-only trial. Once again the Government does not consider that to be necessary in the interests of fairness, or appropriate given the time saving this Bill seeks to achieve. We are seeking, by the process set out in clause 4, to encourage procedural finality and to avoid delay rather than setting up additional procedural layers to add complexity and delay.

Of course, all that should not come at the expense of overall fairness. That guarantee of fairness is expressed in a number of ways: because we consider the different modes of trial that might be afforded to a case to be fair; because a judge sitting alone will be required to give reasons for the allocation itself and then for the substantive verdict, whether a conviction or an acquittal; and because that in itself can be subject to an appeal in the Crown court in the usual way. We regard that as an important safeguard in terms of fairness, but we do not want to encourage mode-of-trial allocations—which we think that judges will do well, transparently, efficiently and having heard from both sides—to be relitigated. For those reasons, I urge the hon. Member to withdraw his amendment.

[Dr Mullan]

I thank my hon. Friend the Member for Isle of Wight East for his remarks. I will paint a scenario for the Minister and ask whether she thinks it is one she will end up regretting if she does not accept at some point, if not at these stages, the idea that appeal is actually serving her own interests in reducing the backlogs. The scenario is that the Bill has passed, has been operating for a year or even two, and there have been multiple complex and lengthy cases heard without a jury under the schedules in this clause—potentially saving, in the Government’s own arguments of its merits, many days of crown court time—but then one of those people appeals post-conviction and successfully argues there was some error of judgment in the judge’s decision to allocate them a trial without a jury.

My understanding of the law is that that would set a precedent and that anybody in those same circumstances allocated a trial without a jury would then be entitled to say that the law as then written by the Court of Appeal should apply to them. We could have a situation where dozens and dozens of cases were then ordered to be retried with a trial by jury. That would not only fail to have made the savings the Government wants to achieve, but make the situation even worse, leading to many more Crown court sitting days being taken up by these cases.

The Court of Appeal approach on allocation will allow the case law to be built up quickly, ahead of trials and convictions, to bring the clarity that judges will need to make sure their decisions are not successfully challenged in the Court of Appeal. We made that argument in relation to clause 3, but it is even stronger in relation to clause 4, because it is just so much more subjective and open to interpretation, and there is so much more room for judges to make decisions that the Court of Appeal find erred against what the Minister is intending through her legislation.

This amendment is a genuine attempt to save trouble down the line. I hope—even if not at this stage—the Minister reconsiders her view that these appeals are necessary. We know that people are not allowed to make meritless appeals. They have to have legal advice from somebody, telling them, “Yes, you have a reasonable case to be made”, and so this will not become some frivolous thing. We have talked about the magistrates court and the Government seeking to restrict that, but even without that restriction, the vast majority of people do not seek to exercise an appeal right—when they already have that right and exercising it comes at a low opportunity cost—even though the Government’s argument is that it can be used as appeal for appeal’s sake.

The idea that an appeal right would flood the courts with those types of cases does not stand up to much scrutiny. Even if that were the case initially, as the case law developed, it would become harder and harder for people to make appeals on this element of the process. On that basis, we will push the amendment to a vote.

--- Later in debate ---

Division 16

Question accordingly negatived.

Ayes: 5

---

Conservative: 3
Green Party: 1
Liberal Democrat: 1

Noes: 9

---

Labour: 9

[Dr Mullan]

I beg to move amendment 50, in clause 4, page 12, line 27, leave out subsection (5)(a).

This amendment would prevent the court unilaterally overriding a reason to issue a revocation order so that a case allocated for judge-only trial under this section could be tried by jury.

[The Chair]

With this it will be convenient to discuss amendment 48, in clause 4, page 13, line 11, at end insert—

“(g) the interests of natural justice for the defendant.”

This amendment would ensure that the interests of natural justice for the defendant are relevant to the decision to revoke an order for a judge-only trial for the offences listed in Schedule 1.

[Dr Mullan]

In earlier sittings, I spent some time testing the basis on which the Government are asking the Committee to accept the changes proposed in the Bill, particularly in relation to the claimed benefits and how the system will work in practice. That is particularly relevant in the context of clause 4, where the justification for removing jury trials rests on the assessment of complexity and length, and therefore on how those judgments are made and revisited in practice. During evidence, I asked Sir Brian Leveson about the modelling underpinning the proposals. His report points to the need for further modelling, but when that modelling was discussed, it was clear that there is uncertainty about the figures and what the impact will be.

That is important context for these amendments; if there is uncertainty about how the system will operate and what it will deliver, it becomes even more important that the framework we are putting in place is clear on how decisions are to be made and what factors will be taken into account. Throughout our discussions, I have also tried to focus on how the provisions will operate and what they will mean for people going through the system, particularly those who are not legally represented and who may find it difficult to navigate more complex procedures. The amendments are aimed at those practical questions.

Amendment 50 relates to a point that is fundamental to how the framework will operate in practice. The Bill sets out conditions under which a judge-only trial order may be revoked, including where the case is no longer sufficiently complex or lengthy. That reflects the Government’s central argument that a jury trial is displaced only because certain features of the case justify it. However, the Bill then provides that, even when those conditions are met, the court may none the less decide not to revoke the order if it considers that

“it would not be appropriate to do so”.

I want to be clear about what that means in practice. If the justification for removing the jury is complexity or length, what is the position when that justification falls away? What is the court expected to do at that point? Is the expectation that the case should ordinarily return to a jury or that, once the decision has been made, it should remain judge-only unless something else actively pushes it back? The Bill does not answer that question, and that matters because, throughout our debates, I have tried to emphasise that it is about not just what is written in the Bill, but how its provisions will operate day to day in real cases.

As I set out in earlier debates, we have a whole range of factors here, and many of them must be weighed rather than applied as straightforward rules. That inevitably leaves a significant role for judicial interpretation. Judicial discretion in itself is not a problem, but when Parliament sets out a structured framework with specific conditions, it is important that those conditions actually do something and have a clear consequence. Otherwise, we risk creating a system in which the criteria exist on paper, but the outcome is ultimately determined by a broader and less clearly defined set of judgments, and that is precisely the concern here.

We are told that if a case is sufficiently complex or lengthy, it may be tried without a jury, but we are also told that if it is no longer sufficiently complex or lengthy, the court may nevertheless decide that it is still not appropriate to return it to a jury. The Committee is entitled to ask, “What weight are we really giving to those original criteria?” In earlier debates, I made the point that courts will look at the legislation, and indeed our debates, to understand what Parliament intends. If we leave this question too open, it is not clear what guidance the courts are expected to follow in practice. If a defendant is told that their case is no longer sufficiently complex to justify a judge-only trial, but that it will nevertheless continue without a jury because it is considered not appropriate to change it, the basis of that decision will not be clear to them.

This amendment is relatively modest but important. It seeks not to remove judicial discretion entirely or create an inflexible system, but to ensure that, where Parliament has set out the conditions for revocation, those conditions have a clear and meaningful effect. If the basis for removing the jury no longer exists, that should carry real weight in the decision that follows. Otherwise, we are in danger of creating a framework in which the justification for removing the jury and the decision to keep the jury become disconnected.

Amendment 48 relates to the factors that a court must consider when deciding whether to revoke a judge-only trial order. The Bill sets out a number of considerations, including delay, the interests of victims and the impact on court business. Those are clearly important issues. We have heard a great deal of evidence in Committee about the impact of delays, particularly on victims, and I do not think anyone would dispute that that is a serious concern.

In my role as shadow Justice Minister, I have focused on the experience of victims in all different elements of the system, including the effect that long delays can have on them. Looking at the list of factors in the Bill, I am interested in what is not included. It is striking that, in the statutory list, there is no explicit reference to the interests of natural justice for the defendant. That omission matters.

In earlier debates, we have been clear that these questions are, in part, about weighing exercises—balancing different factors—and that there are, in reality, more and less fair ways of doing things. We have also discussed that defendants are not all in the same position. The system already recognises that in other ways, whether through good character, prior convictions or the wider consequences that a conviction may have on someone’s life. We treat individuals differently, because fairness requires us to do so. That is why the framework matters.

If the court is directed to consider certain factors, those factors will shape how decisions are made in practice. If fairness to the defendant is not explicitly part of that framework, there is a risk that it will not be given the weight it should be. That is particularly important in this context, because we are dealing with decisions about whether a person should continue to be tried without a jury.

In debates on earlier clauses, I made the point that jury trial is, in some respects, a superior form of justice, even if we accept that it is not practical in every single case. That necessarily means that moving away from it is not a neutral step; it is a step that has consequences for fairness. When the court is deciding whether that position should continue and whether a case should remain judge-only or return to a jury, it seems entirely reasonable that fairness to the defendant should be part of that decision—not assumed or left to implication, but explicitly recognised.

Amendment 48 would not remove any of the existing factors. It would not prevent the court from taking into account delay, the interests of victims or the impact on the wider system, but it would ensure that, alongside those considerations, the court was also required to consider the interests of natural justice. Given the nature of the decision, that seems to be an essential part of a balanced framework.

These amendments are intended to clarify how this framework will operate in practice. They are about ensuring that the conditions set out in the Bill have a clear effect, and that the factors guiding courts’ decision making reflect the full range of relevant considerations.

[Sarah Sackman]

I will address amendments 50 and 48 together. The cases that we are considering in the context of clause 4, which involve fraud and serious financial crime, are, as I have said, among the longest and most demanding trials in the Crown court, routinely running for many weeks and often months. Cases can, and sometimes do, evolve as they progress through the courts—that is not unusual.

Like earlier clauses, clause 4 makes clear provision for orders for a judge-alone trial to be revoked where the circumstances of a case change. That is, again, an important safeguard. For example, a charge on the indictment may be dropped, suggesting that the case becomes less technical, but that is not always clear cut. Money laundering, tax evasion and fraud charges can fall, but cases may none the less remain complex and lengthy in nature due to the volume of digital material, financial accounts or, indeed, the number of defendants involved.

That is why the policy is intentionally designed in a discretionary manner and defines what is required for a judge-alone order, but ultimately a judge, seized of the facts of the case, is best placed to determine whether the conditions are met for each case. Judges must have discretion to determine whether an order is or no longer remains appropriate. In deciding whether to revoke an order, the court must also consider named factors such as delays to the proceedings and the impact on Crown court listings. I am pleased to hear that there is consensus, in this context, about the relevancy of the factors that are prescribed. I do not think that anybody here would disagree that we want judges to have regard to the efficiency of our system and the impact on individual cases.

For all cases under a judge-alone order, it is important to underscore that if an excluded offence is added or the court considers that it is in the public interest for the trial to be conducted with a jury, the order will always be revoked and the case sent to be dealt with in that way, with a jury. Where a jury trial has started already, an order can never be made. That would clearly cause disproportionate disruption within our courts.

In relation to the points around natural justice, the right to a fair hearing, the rules against bias and the duty to act fairly, we consider that those are already upheld within our reforms and therefore do not require the specific provision that is provided for in amendment 48. As hon. Members have heard me say, the fact that a trial happens without a jury does not in itself offend the principles of natural justice.

We have also designed the test for revoking an order, as set out in clause 4, to ensure that relevant interests are properly balanced by the courts. Importantly, parties are given the opportunity to make representations on reallocation, meaning that the defence can draw the court’s attention to how the factors in the Bill intersect with a defendant’s interests, including the issue of delay. At the same time, as we have heard, clause 4 requires the court itself to have regard to the interests of victims when deciding whether reallocation would be appropriate. That ensures that interests are properly weighed by the court, alongside the other factors set out in the Bill. For those reasons, I urge the hon. Member to withdraw his amendment.

[Dr Mullan]

To reiterate, as in clause 3, we risk creating an unfair dual standard for defendants. The Government accept that such defendants should have rights to a jury trial, but they will potentially be denied one unnecessarily because of the circumstances changing throughout their trial, rather than at the outset. Can we create two identical legal tests for the outset versus in the trial? No, but we can certainly make a better effort than we have.

This issue ties back into the question of appeals. If we do not make the process fairer, there is a greater likelihood that defendants who experience failure to reallocate when the circumstances change—who sit there knowing that, if they had been in those circumstances at the outset of the trial, they would have had access to a jury trial—will be encouraged to appeal, post conviction, against the decision not to allocate them to a jury trial. Therefore, again, on the Government’s own test in relation to efficiency, there is a benefit to having a more effective and more balanced test for reallocation during trials. On that basis, we will push our amendments to a vote.

Question put, That the amendment be made.

--- Later in debate ---

Division 18

Question accordingly negatived.

Ayes: 4

---

Conservative: 3
Liberal Democrat: 1

Noes: 9

---

Labour: 9

[Dr Mullan]

I beg to move amendment 49, in clause 4, page 13, line 30, leave out “trial beginning on or” and insert

“cases whose first hearing in the magistrates’ court takes place”.

This amendment prevents the provisions in section 4 coming into effect retrospectively.

We previously discussed the issue of retrospectivity in clause 3, and the exact same questions arise here. As drafted, the Bill provides that the new regime applies to trials listed to begin after a specified day, regardless of when earlier stages in the case have taken place. Subsection (6) makes it clear that this applies regardless of when the preparatory hearing was ordered, for example. That means that cases already in the system may be brought into the new regime before they are heard. We have already considered this issue in debates on earlier clauses, where I raised concerns about how changes to the procedural framework affect people who are already part way through the process.

Defendants do not approach their case in a vacuum. They make decisions at different stages about how to approach it, how to prepare and how to engage with the system, based on the entire framework that applies to them at the time. In this context, that includes the expectation that their case will be heard by a jury. Where a defendant has proceeded on that basis and the case has progressed through the system with that understanding, it is not a small matter to change that position part way through. To change the basis on which a case is to be tried part way through proceedings is not simply a technical or procedural adjustment; it alters the ground beneath the defendant’s feet, and that point goes directly to fairness.

The Government may argue that this is simply a procedural change, and that the case remains in the Crown court with the same offences and the same sentencing powers, but that does not fully address the issue. We have already discussed the meaningful distinction between a trial before a jury and a trial before a judge sitting alone. The Minister has accepted that there is “something special” about a jury trial. If that is the case, removing it cannot be treated as a neutral step. It follows that changing the mode of trial after a case has already entered the system is not simply a question of procedure, but a change that affects how the case is determined.

There is also a practical dimension to this. I have referred to the position of defendants who may have made decisions in expectation of a jury trial. That may affect whether they elect a particular route, how they prepare the defence and how they approach the proceedings as a whole. It has also been pointed out that defendants awaiting trial may be doing so on remand, expecting that their case will be heard in a particular way. Had they known that the framework would change, they may have taken different decisions at an earlier stage. That illustrates that this is not simply an abstract concern; it has real consequences for individuals.

There is also a broader question of how such changes will operate in practice. Applying a new regime to cases already in the system introduces an additional layer of complexity. It raises questions about how existing cases should be treated, how decisions already taken are to be revisited and how the courts should manage that situation practically. We have already heard concerns that this could lead to additional steps in the process, including further consideration of allocation and, potentially, challenge. That has implications for the efficiency of the system. If all the cases currently sat in the backlog to which this applies are subject to a further additional hearing in addition to the new cases coming in, that will create a burden on the courts.

On fairness, it is difficult to justify changing the basis on which a case should be tried after it has already progressed through the system. On practicality, it is not clear that retrospective application will achieve the objectives that the Government have set out—particularly if it introduces additional complexity. In debates on earlier clauses, I also made the point that retrospective measures require a particularly strong justification. We previously talked about the guidance to the House and how stringent those tests are. We have heard an unconvincing case, in my view, that such a justification exists here.

The amendment therefore takes a straightforward and proportionate approach. It would ensure that the new regime applies only prospectively to cases entering the system after the change, rather than to those already under way. That respects the position of defendants who are already part way through the process, avoids the fairness concerns that arise from changing the framework mid-stream, and provides greater clarity about how the system will operate. Given the nature of the change being made, that is a distinction that I think the Committee should take seriously.

This is a question about how changes to the system are applied in practice. The amendment is intended to provide clarity about that and to ensure that the framework is applied consistently to cases moving forward, but not retrospectively.

[Sarah Sackman]

On amendment 49, consistent with our approach to the allocation of cases within the existing caseload but where trials are not yet commenced in relation to allocation to a Crown court bench division, we follow the same approach in relation to questions of allocation with the creation of a judge-only forum for cases of the nature we have been discussing in relation to clause 4—namely those of a lengthy and complex nature. We follow the same rationale and principles that trials should be treated and heard in accordance with the law as it stands at the commencement of trial.

As I said earlier in the debate, applying the measures in the Bill to cases in the open caseload will enable us to bring forward and thereby accelerate caseload reduction, which is one of the main—if not the primary—objectives of the Bill. That approach to the application of the law to the existing caseload is consistent with precedent. For example, Parliament previously legislated in 2003 for judge-only trials in cases involving jury tampering and that applied to trials begun after commencement, regardless of when the case first entered the system. I grant that what we are seeking to do here is bolder and more extensive, but it is the principle of whether trials should be heard in accordance with the law as it stands when the Bill is brought into force.

That also means that we avoid a situation where there are two different procedures running in parallel in the Crown court as a result of arbitrary cut-off dates. Although I do not seek to overstate the impact that that application of the legislation will have on the relatively small number of cases that we are talking about in this context, it is important that we derive, in the delay reduction, every little benefit that we can from the measures that we are bringing forward as soon as we can, because of the extent of the delays. For those reasons, I urge the shadow Minister to withdraw his amendment.

[Dr Mullan]

The only point I would add is that, as the Minister has accepted, this is a relatively small number of cases, so the test of what is justifiable is actually disproportionately weighted against the Minister in these cases, in comparison with the earlier cases on clause 3. People’s rights and expectations remain the same, and from their perspective will be undermined by these measures, yet the benefit that the Government will actually secure from them is relatively minor, as the Minister accepts. I refer to the fact that 11% of Crown courts are sat empty today, and for a very minimal gain we are putting forward measures that make it difficult for people to exercise their rights in the legal system in a fair and reasonable way. On that basis, we will press the amendment to a Division.

Question put, That the amendment be made.

--- Later in debate ---

[Sarah Sackman]

I am going to make some progress— I know the hon. Gentleman has raised this with me. Those responsible for drafting the legislation do not need to add further definitions of what we mean by “complex” and “lengthy”. That is well understood. As I said, given the other safeguards and considerations related to the kinds of cases that will be suitable, we think that the discretionary approach that judges will apply will suffice.

[Dr Mullan]

Will the Minister give way?

[Sarah Sackman]

I will not; I am going to make some progress.

As Sir Brian’s report clearly outlines,

“this is a principled reform based on the need for cases to be resolved in a more timely manner, with a forum well suited to the demands of the case.”

He suggests that allowing a judge to hear these cases alone—in tightly defined circumstances, of course—can cut hearing time by at least 20%. As we have said already, we heard from various witnesses about how that time saving would be achieved. That is a gain for the system and for capacity in the Crown court that can be used to progress other sorts of cases. That is not an abstract assumption. There is not an absence of evidence here: we have heard from those with judicial experience, as well as from international comparators such as New South Wales, where complex cases have been found to be 29% quicker when tried by judge alone.

Let us be clear about what we mean in practice when we talk about long jury trials. Imagine someone being told they are required to serve on a jury in the Crown court, not for the typical two weeks’ jury service, but for at least several months. Imagine receiving that letter and that news. Although we are very grateful for people who do that—I know how willingly so many citizens participate in juries—I have, as the Minister for Courts, received lots of correspondence about the burden that lengthy trials can impose. If someone is self-employed or in insecure employment, the time away can mean a significant loss of income. If they are a carer, it can mean scrambling around to find, or having to pay for, alternative support for a loved one. Even for many in stable employment, it is not just inconvenient; it has a real impact on personal life and finances.

That is why, as policymakers, we need to be proportionate and, dare I say it, judicious about how we use this special resource. Yes, I use the word “special”, and I do not resile from it—sitting on a jury is a special thing. However, we have to use that resource where it is right, proportionate and appropriate to do so. Reducing the need for members of the public to sit as jurors on very long and intensive trials means that fewer people will face that disruption and loss of earnings.

The nature of crime and evidence has changed. It is no longer a couple of paper files and a handful of witnesses; Sir Brian Leveson is clear that modern cases of the sort we are talking about can involve vast volumes—terabytes—of digital material held on servers and hard drives, and highly complex financial records. All that complexity means that directing and explaining the evidence at the pace of the slowest juror, which is the pace that an advocate has to go at, presents additional delay. I am grateful to Sir Brian for making that point clearly in his report.

The scale of “The Crown Court Compendium”, which is the guide that judges use to direct juries in criminal trials, is such that it now runs to some 560 pages, demonstrating the extraordinary time and effort that judges now need to devote to guiding juries in these complex trials. That support is plainly valuable and shows the great effort the system has already made to account for the huge change over the last couple of decades in the complexity of such cases. It also powerfully illustrates the real impact on timeliness, and Sir Brian’s observations only reinforce why it is right that we address the challenge head on. If it was true when Lord Justice Auld talked about the rationale for a judge-only trial in these sorts of cases over 25 years ago, it is certainly even more true now.

As I have said, the crux of the legislation is not whether a judge or a jury is better at understanding evidence or ascertaining the honesty or dishonesty of a defendant; it is about being honest with ourselves about the time that we have, ensuring that trials run as efficiently and effectively as they can, and preserving jury trial for the cases where it makes most sense and matters most. It is important to remember that this is not wholly new territory. Our justice system already recognises limited exceptions to jury trial, most notably where there is a risk of jury tampering, and those trials are conducted fairly by a judge sitting alone.

The clause does not bring about wholesale change to jury trials, which the Bill preserves for the most serious cases; it creates an additional, tightly defined and controlled, discretion for a small number of cases where the burden on jurors and court resources is excessive. It means that no case can be moved into the judge-alone route without a rigorous, transparent assessment against the statutory tests, with both the defence and prosecution having the opportunity to make representations, ensuring that decisions are fair and balanced. A case can only ever qualify if it involves a scheduled fraud or financial crime offence, and even then, a judge must first have ordered a preparatory hearing—something that happens only where a case is genuinely complex or lengthy.

We have also drawn hard lines. The gravest crimes can never be heard under this policy. That is why we have carved out all indictable-only sexual offences and homicide offences, such as rape, murder and manslaughter, which are all excluded. If any such offence is added to a case, the order must be revoked and the case must be sent for a jury trial, without exception. Where a jury trial would be in the public interest, a judge cannot hear the case alone.

The clause is about three crucial things. First, it is about making a reasonable ask of the public in respect of their important civic duties, and not asking them to bear a disproportionate burden on themselves, their jobs or their loved ones. Secondly, it is about taking every responsible option available to us to get the criminal justice system moving again, because justice delayed is justice denied. Thirdly, it is about modernisation. The world has changed, and the nature of these crimes and the evidence that is involved have changed. What made sense in 1971, or even 25 years ago, is not always what works best today. In that reforming spirit, the clause presents a modern, balanced and proportionate approach. It is exactly the sort of thing that is needed in the light of the current pressures on the system. For that reason, I commend clause 4 and schedule 1 to the Committee.

Amendment 51 would remove the power for the Secretary of State to amend the list of offences in proposed new schedule 3ZA to the Criminal Justice Act 2003 by order, and the Government cannot support it. A fixed and closed list would not reflect the reality of modern crime. Fraud and financial offending continue to evolve rapidly, and new forms of criminality and new legislative offences across all aspects of crime will inevitably emerge in the coming years. If Parliament were required to revisit primary legislation every time a new, appropriately relevant offence was created or identified as suitable, that would significantly reduce the agility and effectiveness of this framework. Criminal cases are increasingly shaped by technological change, new technical and digital instruments, and increasingly sophisticated ways of handling evidence. A system that cannot adapt risks becoming obsolete almost as soon as it is enacted.

I have heard concerns that this power amounts to Government overreach, and I want to be clear that it does not and that this is not an unconstrained Executive power. The schedule can be amended only via the affirmative procedure, which requires debate and approval by both Houses of Parliament. That ensures proper democratic oversight, while ensuring that the law can keep pace with the ever-changing nature of crime without unnecessary delay. This is not an unusual approach to criminal legislation. Parliament has adopted similar delegated powers elsewhere in criminal legislation, including provisions now consolidated in the Sentencing Act 2020.

For those reasons, the Government believe that this power strikes the right balance between keeping pace with modern crime and remaining firmly anchored in parliamentary oversight. I urge the shadow Minister not to press his amendment to a vote.

[Dr Mullan]

I rise to speak in opposition to clause 4 and in support of amendment 51 in my name. I remind the Committee that this is not a new debate. As the Minister touched on, it is an idea that has been postponed, debated and largely rejected several times over the last few decades. Each time, the conclusion has been that the jury is not the problem in fraud cases, but a vital component of the solution.

The Government’s current justification rests on two pillars: that fraud causes are too complex for ordinary citizens, and that removing the jury will create significant efficiencies to help clear the record-breaking court backlog. Although we all acknowledge the severity of the backlog, we must ask whether these specific measures are evidence-based or merely an attempt to appear tough on administrative delays at the expense of the right to trial by one’s peers. The Bill will allow a judge to order a trial to be conducted without a jury if they are satisfied that the complexity or length of that trial would make it a heavy burden on a jury. As the hon. Member for Brighton Pavilion pointed out, it would be good to get clarity on whether a judge may make such a determination on the basis of complexity or of length individually, or whether they must do so on the basis of both complexity and length—that was a fair question.

Complexity is highly subjective. For one judge, a case involving intricate cryptocurrency ledgers might seem manageable for a jury, but for another, it may seem impenetrable. By making the right to a jury trial contingent on a judge’s personal assessment of what a typical citizen can understand, we introduce an element of judicial lottery. Furthermore, fraud is fundamentally about honesty and dishonesty, which are concepts that ordinary people are well placed to judge. When we professionalise the verdict in fraud causes, we move away from a community-based standard of morality towards a technical, legalistic one that may lack the public’s moral buy-in.

I draw the Committee’s attention to the evidence provided by the City of London Law Society, which points out:

“The government’s rationale for judge-only trials in ‘complex or lengthy cases’ rests on two assumptions: that juries struggle to understand complex fraud cases, and that judge-only trials will be significantly more efficient.

Neither assumption is adequately supported by evidence.

There is substantial research and practical experience demonstrating that juries, when properly directed and assisted with appropriate case management, are capable of understanding and deciding complex fraud cases. Modern trial techniques have been brought in to address issues that arose in the past, significantly enhancing jury comprehension.

Juries have been involved in many hundreds of fraud trials, following the evidence and reaching rational decisions. The Leveson Review noted that in the Jubilee Line case (one of the longest running in British legal history and one which pre-dated many of the changes that have been introduced to help improve the jury’s understanding), jurors reported ‘a very good understanding of the evidence’, with ‘some commenting that it was not all that difficult’.

More recently, in R v Hayes & Palombo, the Supreme Court opined that a properly directed jury would have no problem assessing dishonesty in the context of a complex financial service-related case.

The assumption that juries cannot cope with complexity is unproven and patronising. It fails to recognise that juries regularly include individuals with professional expertise, financial literacy and analytical capabilities, and that issues of intent and dishonesty are familiar and well understood by the jury.”

The society states that we should also note

“that the cases that have been preserved for jury trial under the Bill are also likely to include complex expert evidence (such as forensic medical or science-based expert evidence or statistical analysis), which undermines the argument that complex trials should be left to a judge alone.

The hypothesis that judge-only trials are more efficient also relies on the assumption that time will be saved by counsel not having to simplify evidence when presenting to a judge rather than a jury. However, this fails to take into account that, without the requirement to simplify charges and evidence, this is likely to encourage increased charging by the prosecution and increased applications for more complex evidence to be presented to judges.”

While judges are experts in the law and legal matters, there is nothing at all to say that they are any more or less expert in cryptocurrency or complex financial matters than a member of a jury. In total, the society continues:

“This will thereby increase the time spent in pre-trial hearings and evidence presentation, as well as the length of and time to produce written judgments.”

In total, this will thereby increase the time spent in pre-trial hearings and evidence presentation, as well as the length of time to produce written judgments.

--- Later in debate ---

The Opposition support amendment 51. If the Government insist on retaining clause 4 and schedule 1, then there is a compelling case for removing the power of the Secretary of State to add further offences to the list by regulation. I am particularly concerned by that unconstrained power. If the Government have currently singled out fraud, money laundering and terrorist funding as the special class of lengthy and complex cases, there is no obvious stopping point. Terrorism, murder, rape and drug trials can also last many months and be highly complex, especially where there are multiple defendants or contested expert evidence.

[Dr Mullan]

If the schedule said complex and lengthy fraud cases, then the Minister might be able to argue that it is constrained, but the schedule is just “Trial on indictment without a jury: complex or lengthy cases”. It actually opens the door to any number of types of offence being added purely because they are complex and lengthy. I think of, for example, the Lucy Letby trial, which was clearly complex and lengthy, but something that clearly needed to have a jury in terms of public confidence. That could end up included by schedule 1.

[Rebecca Paul]

I completely agree with my hon. Friend. What is considered complex and lengthy could be quite subjective. We all know that we are potentially going to end up in the courts over defining exactly what is complex and lengthy. It feels like the Bill is not written clearly enough for us to understand exactly how it will work in reality. Amendment 51 is an important safeguard against those risks.

In his written evidence, His Honour Geoffrey Rivlin KC notes that the schedule 1 list already

“appears to be arbitrary, perhaps the work of a moment; and it goes beyond anything suggested before. But even that is not the end of it.”

That is because part 2 of the schedule gives the Secretary of State the power by order to add or remove offences. He quotes the explanatory notes to show that offences not related to fraud or financial crime could easily be added in the future. He describes this as

“a mighty step along the way to the end of jury trials.”

That does not strike me as overstatement. The Secretary of State will indeed have this untrammelled power, and we should carefully heed this sober warning from a senior judge.

For similar reasons, the Opposition oppose schedule 1 standing part of the Bill. Schedule 1 is the list that gives clause 4 its reach, and the list is already troubling. It is not confined to a tiny, tightly defined category of unusual mega-fraud; it covers a wider class of economic and financial offences, including money laundering and terrorist funding, and can then be expanded later. If we think the core principle of clause 4 is wrong, then the schedule that operationalises it is wrong too.

Rivlin’s description of the list as “arbitrary” is worth keeping in mind. One of the reasons that schedule 1 is objectionable is that once Parliament accepts the principle that a whole category of serious Crown court cases can be singled out for juryless trial on grounds of length and complexity, the argument for confining the list to that category becomes very hard to sustain. The logic of the thing pushes outward. That is why schedule 1 is dangerous: for not only what it contains now but what it invites later.

I am particularly concerned that there is an ideological push away from jury trials. My concern is that this is only the start, not the end of where the Government want to get to. I urge the Committee to think about this carefully. We are taking important decisions for the future.

[Dr Mullan]

As I have talked about in earlier debates, uniquely in this situation we already know what the Lord Chancellor wanted to do. From leaks, we know that five years was the test, in terms of these proposals. The Opposition are being fair in suggesting that this is potentially the thin end of the wedge.

[Rebecca Paul]

I agree with my hon. Friend, as I normally do.

Finally, there is the obvious practical point that there are better answers available. The Law Society says that reform and investment must be strategic, not piecemeal, and warns against stand-alone measures such as changing from jury trials to judge-only trials without convincing evidence that they will significantly reduce the backlog. It says that Parliament should insist on “detailed modelling” and on understanding the Government’s intentions across the whole package of reform, not just on this isolated measure. The existence of pressure in the system does not prove that every proposed constitutional shortcut is justified. The question is whether the shortcut is necessary. With clause 4, the answer is plainly no. For all those reasons, I oppose clause 4 and schedule 1, and I support amendment 51.

Clause 4 offers a constitutionally serious reduction in jury trials for a tiny claimed benefit of 200 sitting days. The evidence does not show that juries are the cause of delay, collapse or miscarriage in these cases. Fraud cases are not too technical for juries. The key issue is dishonesty, and ordinary citizens are uniquely well placed to judge that. The removal of juries in these cases would damage open justice and public confidence. Schedule 1 gives effect to that flawed principle and then goes further by creating a route to ministerial expansion. Amendment 51 is therefore a sensible and necessary safeguard, but in truth, the better course is simpler still: clause 4 and schedule 1 should not be included in the Bill at all.

--- Later in debate ---

[Joe Robertson]

I agree with my hon. Friend. Indeed, the Bill will basically lead to a complete lottery in decision making, depending on the judge a person gets on the day. I suspect that judges ordinarily do not like vague law or having to provide their own interpretation. They are usually more comfortable if the statute is more precise, or if it is backed by caselaw, but there is no caselaw here.

On the issue of length, we know what the Minister thinks because she has told us in this Bill Committee. I do not criticise her for this opinion, but she thinks a case is long if it is disruptive to the personal or professional life of a juror or their wellbeing. That is her view as to what will make a case lengthy, and I do not criticise her for that, but there is no guidance here for the judge to consider those things—[Interruption.] I paraphrase her—she is welcome to intervene if she disagrees about how I characterise her views on what is lengthy for a juror.

[Dr Mullan]

I talked before about how judges will look to what Ministers have said around a measure in trying to interpret it, so if a judge is not clear what was meant by this, and pulls up Hansard to read what the Minister has said, surely they will take from the fact that the Minister has talked about the disruption to a juror’s life that they should have that as the test. What is disruptive to one person’s life is very different from what is disruptive to another’s.

[Joe Robertson]

I agree with my hon. Friend; he actually pre-empts the point I am about to get on to. I thank him for taking me on to that. It should be fairly obvious to most people that there will be a wide range of views as to how much time a person can take out of their ordinary life, bearing in mind that people are not called for jury service at the drop of a hat. They are not told, “You must cancel all your plans next week”; there is a degree of warning.

Most people take quite a wide view on how much time they can afford to give, depending on what is going on in their life. For some people, taking two weeks or even a week out is very disruptive. This theoretical person that the judge has to imagine would make an argument that it is appropriate that the trial should not take place with a jury, because they do not have a week in their busy life to just hand over.

Alternatively, others may say that they see it as a civic duty and a fundamental contribution they make to society to be available for jury trial if called. Perhaps they have never been called and they have reached a ripe old age, and they are happy and prepared to take a month or two out of their life to devote to making a decision on whether someone is guilty.

[Dr Mullan]

Currently, when a person sits on a jury, it is understood that, outside of the most extreme circumstances, they will be there for as long as the case takes. However, if the public get the sense that they can debate what asks are reasonable or unreasonable, I would not be surprised if jury members, in trials that go on a little bit, start sending notes to the judge to complain. They might say, “This has gone on for a week, and I didn’t think I’d be here for that long. I understand that if a trial goes on for too long, it shouldn’t be heard by a jury. This is going on too long. Judge, will you look at that?” That will open a whole can of worms about something that at the minute is extremely constricted in people’s minds.

[Joe Robertson]

Indeed. Might a judge, halfway through a trial, decide that it has suddenly become inappropriate, having heard whatever formal or informal representations are made on that point? Even if there is some objective consensus about how long an ordinary person in this country should be prepared to set aside to serve on a jury, does that in itself make it appropriate that a case should not be heard by a jury?

Even if we could agree, for example, that devoting any more than a month to a jury trial is disruptive to a person’s life, does that automatically make it inappropriate for a case to be heard in a jury trial? No, not at all. If it is inconvenient for someone to sit on a jury for a particular length of time, that does not mean the case is inappropriate for a jury trial. Even the Government are not willing to put a specific time value on that.

[Joe Robertson]

My hon. Friend is absolutely right. There are a number of personal and professional circumstances that can enable people to make that argument and get exempted from jury trial or, indeed, not have to sit on the jury in the original case but have it deferred to a more convenient time. She is absolutely right that flexibility for ordinary people in this country is already built into the way that juries are selected.

“Length” is probably the easiest of these three difficult terms; “complexity” is even harder to nail down. How is a judge supposed to decide what level of complexity makes it appropriate to have a jury? I would argue that the more complex a case, in certain circumstances, the more it should be heard by a jury, especially if the complexity relates to what is in the mind of the defendant, rather than, for example, complex financial papers.

Does the involvement of complex financial papers, on its own, necessarily make a trial more complex, if the real issue in the case is whether the defendant intended to be dishonest? As we have already heard with fraud cases, as well as most of the cases in schedule 1, the real issue is not whether something happened; it is the mindset—the legal term would be mens rea—of the person who did that thing. If they did something by accident or unintentionally, depending on the crime, that would often be enough for them to be acquitted. If they did something knowingly, dishonestly or recklessly, also depending on the crime, that would normally be enough for them to be convicted.

[Dr Mullan]

My hon. Friend the Member for Reigate has given one example, but another, with which I expect people will be familiar, is the LIBOR trials. They were very complicated and sophisticated, and the appeals were successful because of a judge. It was the judge’s misdirection to the jury that led to the LIBOR trials becoming another example of cases collapsing. If anything, the evidence shows that it is the judges who are the issue here, not the juries.

[Joe Robertson]

My hon. Friend is absolutely right. Obviously judges are not infallible. That is not a criticism of judges—judges know that they can make mistakes. On the mindset of the person, I am unclear as to whether the Government or indeed anyone on the Committee, regardless of party, thinks that there is anything more complex than what is in a person’s mind—a mind that cannot be unlocked or opened. We can ask this person what was in their mind, but they want to be acquitted, so we must take a value judgment on whether they are telling the truth or not. Surely the most complex thing there can possibly be is what is in the mind of a human being. A very complex set of spreadsheets or cryptocurrency that only half of us understand is complicated, but there is perhaps nothing more complicated than the motivation and mindset of a human being.

That is specifically what juries are for—to make that sort of judgment on whether it was reasonable for someone to do something. That is why we have 12 members, so that they must come to a view unanimously, or certainly as a large majority. A judge is not in a more privileged position—no one would argue that they are—to decide what is and is not reasonable. They are in a more privileged position to make decisions about the law, and indeed they do make decisions about the law in jury trials and direct the jury on matters of law.

It is incredibly uncertain what “complexity” means. I know what the Minister thinks it means, and I do not criticise her. It is a perfectly reasonable view of what it means. My point is that it is not the only view. She thinks—I paraphrase; I do not seek to put words in her mouth—that it is complex financial evidence, presumably written evidence in many cases, in a fraud trial or crimes related to money. It is perfectly possible to have a great volume of evidence but, as the case unfolds, a detailed understanding of that paperwork may no longer be the issue on which the case turns. Does having a large volume of written evidence and a long list of witnesses make a case complex, or does it depend on what the witnesses might say or exactly what is in those papers?

The Minister has spoken about juries moving at the pace of the slowest member. Is her test for complexity the mindset of the slowest member of a random 12 selected from the British public, or is it the average—one might say reasonable—person? She could help judges making this decision by setting that out in the legislation.

This is not merely a theoretical, academic discussion on the criminal law of this country. I can point to another country. The Minister has taken pleasure in using other countries as examples to justify many provisions in the Bill, as though England and Wales can learn from other jurisdictions. I do not disagree with that premise. I will give her the example of New Zealand, another common-law jurisdiction. It has a similar provision, whereby a judge has to exercise a similar sort of decision making about whether a trial is likely to be “long and complex”, rather than its likely complexity. Set out in its legislation is a legal test. The Minister says that there is a test of complexity in the Bill. I tried to intervene on her to say that there is not.

This is what a test looks like. The law of New Zealand directs a judge to consider, in determining whether a case is likely to be long and complex,

“the number and nature of offences with which the defendant is charged”.

We understand what that means. It also directs them to consider

“the nature of the issues likely to be involved…the volume of the evidence likely to be presented”

and

“the imposition on potential jurors of sitting for the likely duration of the trial”.

It has a catch-all, which is not unusual in legal drafting:

“any other matters the court considers relevant.”

The judge in New Zealand has a test to apply: whether the case is likely to be long and complex. There is absolutely no reason why the Government could not have included a test in the Bill—it does not have to be the same test—to assist the court and give certainty, which would help defendants and victims and would improve efficiency.

--- Later in debate ---

[Sarah Sackman]

Several points have been raised in this debate. First, on the definition and the application of the eligibility test, when I was explaining the rationale behind the provision for judge-only trials in complex and lengthy cases—a realisation of one of the key recommendations of the independent review—I was talking about the importance of considering not just efficiency, but jury burden. While it is of course a relevant policy factor, I was not suggesting that that in itself is the test to be applied.

The terms used in the legislation have been the subject of criticism from a number of hon. Members. I consider that those terms are straightforward and well understood. The notion of a complex case is used in other contexts. Currently, for example, the Crown Prosecution Service and the Serious Fraud Office can send serious and complex fraud cases to the Crown court, subject to section 51B of the Crime and Disorder Act 1998, so there is existing practice. Those are terms with which the judiciary are familiar. If it proves in due course that guiding factors and the Criminal Procedure Rules would be of assistance, that can be looked at. However, I do not think that the definition itself presents the cataclysmic problems that hon. Members suggest.

[Dr Mullan]

To make it really clear, what is the minimum length that the Minister thinks would constitute a lengthy case?

[Sarah Sackman]

I am not going to second-guess how the judges will apply this. As I say, that is for the judiciary and the courts. I am not going to put an arbitrary time length on it; I do not think that is needed.

The second point that hon. Members made was that the provision risks becoming too wide-ranging if a future Parliament or Secretary of State wishes to add to the offences. I addressed that point in my earlier remarks. I do not think that that is a real risk.

Another point that has been made is that none of this will have much of an impact, because we are talking only about a narrowly defined set of cases. I fully anticipate that while the system gets to grips with the use of this legislation, there will be a very small number of cases to begin with, but these are by definition the lengthiest cases and they take up a large amount of the courts’ time. The savings that we are talking about, which are set out in the impact assessment, may sound modest, but in a system under extreme pressure those small shifts matter. Every case heard by a judge sitting alone—as was deemed appropriate in these sorts of case not just by Sir Brian but by Lord Justice Auld and others—saves valuable Crown Court and jury time that can be deployed to serious cases that need a jury. In the context of the emergency in which we find ourselves, I make no apologies for seeking every little impact. For all those reasons, I commend the clause to the Committee.

[Dr Mullan]

I just want to pick up on some points. The point about the scale of the issue was well made by my hon. Friend the Member for Reigate, who pointed to 200 sitting days. She highlighted the criticism from others suggesting that the list of offences was “the work of a moment”, which is probably a fair description of what is going on.

As we have heard, trying to understand what “complex and lengthy” means has proved difficult. A telling point was the Minister’s insistence that it will be obvious to judges. Other jurisdictions have set out a minimum in legislation, but as the person legislating she is not able or willing to give a sense of how long she has in mind. On her suggestion that judges are better placed to understand this stuff, I say with no disrespect that over 70% of judges are aged over 50. I think some apprentices I have met at IT firms in my constituency might have a better understanding of the issues relating to cyber-crime than some of our judges.

The Lib Dem spokesperson, the hon. Member for Chichester, made it clear that it is not a supposition, nor does it take extensive reasoning, to suggest that future Governments will be able to make use of these powers in exactly the way that we have described. That is not a matter for debate; it is about the statutory framework that has been put in place, which will definitely be available to future Governments on the basis of the maximalist, expansive approach that this Government have chosen. My hon. Friend the Member for Isle of Wight East has explained how other jurisdictions have done a better job.

We are looking into the details of the Bill here, but goodness knows what will happen when a Minister has to defend these proposals in the Lords, with the expertise and experience of its Members, who include retired judges. Given clause 4’s lack of appeal, its illogical approach to how fraud and non-fraud offences interact, the minimal savings, the flimsy evidence and the lack of definition, which we have covered extensively, the Minister in the other place will have a very difficult time if the Government do not start being a bit more open to the non-wrecking but sensible amendments that Opposition Members put forward.

Question put, That the clause stand part of the Bill.

--- Later in debate ---

[The Chair]

I remind Members that the House has agreed that the Committee must conclude its work by 5 pm on Tuesday 28 April. We have just passed schedule 1. I have no power to impose a time limit on speeches, and it is for the Committee to decide on how to use its time, but I encourage Members to consider the length of their speeches and interventions in the light of the wish of all Members to consider the whole Bill and the amendments that have been tabled.

Clause 5

Consequential amendments relating to sections 3 and 4

[Dr Mullan]

I beg to move amendment 52, in clause 5, page 14, line 36, leave out subsection (5) and insert—

“(5) The judgment must be given at the time of conviction, except where an adjournment is necessary for preparing—

(a) pre-sentence reports,

(b) psychiatric or medical reports,

(c) victim personal statements, or

(d) further legal advice relating to sentencing.”

This amendment would ensure that judgments are handed down on conviction in all but the circumstances covered by the amendment.

[The Chair]

With this it will be convenient to discuss the following:

Clause stand part.

Amendment 58, in clause 26, page 35, line 19, at end insert—

“(3A) The Lord Chancellor may not make a statutory instrument containing regulations under subsection (3) bringing sections 3 to 5 into force until he has—

(a) commissioned an independent review to assess the length of time required for a judge sitting alone to deliver a judgment after conviction,

(b) laid before Parliament a report on the outcome of the review under subsection (3A)(a), and

(c) made a statement to the House of Commons on the Government’s response to any recommendations from the review.”

This amendment would stop sections 3 to 5 coming into force until the Government had an evidence base for how long these provisions might delay the issuing of judgments after convictions.

[Dr Mullan]

I rise to speak in support of amendments 58 and 52; I will start with amendment 58.

We find ourselves at a significant juncture in the history of our legal system, and the Government have presented us with a Bill framed primarily as a pragmatic response to the current record-breaking backlog of nearly 80,000 cases in our Crown courts. The central justification for their reforms, specifically the restriction of the right to a jury trial, is efficiency; the Government argue that by moving towards judge-led trials, we can streamline proceedings and reduce the demand on the Crown court by almost 20%.

However, when we are asked to curtail a right that has stood as a cornerstone of our democracy for more than 800 years, we must move with extreme caution. We must ask whether this fundamental change is based on robust data or merely an intuitive sense of speed and individual opinions. It is not only reasonable, but essential to ask the Government to conduct an independent formal study into the actual time savings achieved by judge-only trials before they are implemented.

Amendment 58 focuses on one of the more easily measured elements, which could be properly studied. The Government’s case for reducing jury trials is predicated on the idea that it means the trials will be 20% shorter, yet when we examine the source of this figure, its foundation begins to look unstable. Sir Brian Leveson, whose review informed much of the Bill, stated that the estimate of a 20% reduction is subject to

“very high levels of uncertainty”.

He further stated that

“seeking to model how much time would be saved is extremely difficult.”

That point is reinforced by the Government’s impact assessment. Their attempt to quantify the time saving found that it was likely to be in the range of 10% to 30%—potentially half the time saving that Sir Brian claimed—and even that figure is born of what we might call a light-touch engagement session with judges and others, rather than rigorous comparative data. If the primary justification for stripping away a constitutional right is a 20% efficiency gain, then Parliament is entitled to see clear, verified evidence that that gain is actually achievable.

While the Government promise a transformation of the system, independent experts argue that the actual time saved will be marginal. The Institute for Government has analysed the proposals and suggests that the judge-only trials in the new bench division might save only 1.5% to 2.5% of total Crown court time. Furthermore, the Criminal Bar Association has pointed out that the Government’s impact assessment assumes that the average length of a trial in scope is six and a half sitting days when, in reality, these trials typically last closer to three days. By doubling the realistic length of those trials in their modelling, the Government have likely overestimated the potential savings. When we look at these figures, we must ask whether it is right to curtail a fundamental safeguard for a gain that may be as low as 1.5%, when today alone we have 10% of Crown courts sitting empty for no other particular reason than a lack of efficiency.

The Government’s efficiency narrative is focused almost entirely on the front end of a trial, the time it takes to empanel a jury and deliver legal instructions, and the time they claim is taken up by what some have described in evidence as playing to the jury. It ignores the back end of the process, the delivery of the judgment.

In a jury trial, once the evidence is closed, the jury deliberates continuously and provides an immediate verdict of guilty or not guilty. Importantly, in that time, a judge can be otherwise engaged, hearing other cases and doing other work. From their perspective, the fact-finding phase is over instantly.

A judge sitting alone does not have that luxury. To satisfy the requirements of transparency and guard against appeals, a judge must produce a reasoned judgment that addresses every point of law and fact. In other jurisdictions, delivering a verdict and providing those judgments can be reserved, meaning that they are written weeks or even months after the trial concludes.

Unlike a jury, a judge has a full docket of other administrative duties. We risk a situation where the time theoretically saved is then lost through another route. Without a comparative study of what I will refer to as the judicial deliberation gap, we are making systemic changes based on an incomplete set of metrics.

Additionally, because a judge’s written reasoning provides a detailed map of their logic, we are likely to see a significant spike in appeals. A jury’s verdict is difficult to appeal on the facts; a judge’s written judgment invites scrutiny for any minor error in law or logic, further clogging the higher courts. The Government have spoken frequently about the lack of availability of professionals within the legal system to hear criminal cases, and it will be the same KCs and others who will be stuck in the Court of Appeal on these cases, instead of being in the Crown court hearing cases from the backlog.

For those reasons, we propose a simple, pragmatic pause. We are asking the Government to commission an independent study of the length of time required for a judge sitting alone to deliver a judgment after conviction. This is a matter of sequencing: evidence first, implementation second. In any other field, be it medicine or engineering, we would never implement a change of this magnitude without a pilot study or a comparative dataset.

We picked this element as something amenable to study; there is nothing preventing the Government from commissioning a series of either sitting or retired judges to sit in the public galleries of trials happening in the ordinary way and then to go away and consider what reasons they would present and how long that would take. The Government could then measure and study the reality of that. Of course, that would vary from judge to judge, but a study with sufficient statistical power, with enough people taking part, could give us a genuine insight into how long these things will take.

If the Government are confident that this process will be short and sharp and able to save time, I see no reason why they would not want to know it for sure before proceeding on that basis. If that study showed that that 20% saving was a myth, and that the time taken on the back end cancelled out any gains made during the trial, of course the reforms should be paused or reversed. We should not trade a system that works for one that merely looks faster on a spreadsheet.

Jury trials are not an obstacle to justice; they are a safeguard against its abuse. It is important that we gather the facts and measure the actual time it takes for a judge to provide a reasoned judgment. If the evidence does not support the Government’s assumptions, we must have the courage to stop these reforms before we permanently damage one of our most valued constitutional inheritances.

I now move on to amendment 52. As I have mentioned, we are debating the important element of reforms that are historic in their reduction of our access to jury trials. They are predicated on the idea that that is the sole and only way that we can tackle the backlog in the Crown courts. If we are to accept the Government’s claim that trials without juries are a tool for efficiency, we must hold the system to that standard. For that reason, it seems sensible and necessary to require that, in any trial without a jury, the judge must provide their verdict and their reasons immediately.

Allowing a judge to delay their reasoning is not just a procedural flaw, but a logical contradiction that undermines the very efficiency that the Bill seeks to achieve. The Government’s most frequent argument for restricting juries is that they waste time due to the need to go slowly through the evidence and the unpredictable length of deliberations. The Government promise that a judge, as a legal expert, will streamline the process. However, that argument collapses the moment that a judge says, “I will give my verdict, but you will have to leave it with me while I go away and write it up.” The goal is to save time but, if there is a separate process that requires significant enough time that it cannot be done as part of the trial, where is the saving?

In written evidence, we were warned of what might be called a bottleneck shift, where we might clear courtroom space more quickly, only to move the delay into the judge’s chambers. As the Criminal Bar Association points out, the reasonable time provision is currently too vague. I understand that it is not unheard of in other jurisdictions with judge-alone trials, such as Canada and New Zealand, for parties to sometimes wait months for the full reasons to be given for the verdict. By contrast, a jury provides a benchmark of finality. They do not go home to handle other business for a month; they deliberate while the evidence is fresh and stay until the job is done. As I pointed out earlier, while they are doing that, the judge is free to carry on with other matters.

A case awaiting a verdict is a frozen case. It hangs over the court’s docket. It prevents the defendant from moving to the sentencing or appeal phase and potentially requires the judge eventually to relearn and reacquaint themselves with the full details of the case, perhaps weeks later. We are told that judges are professional triers of fact and that, precisely because of that expertise, we should be able to expect a system that reflects it.

A jury of 12 people must be taught the law from scratch, whereas a judge, who already knows the law, should be taking structured notes and filtering and identifying relevant and irrelevant information in real time. By the time closing arguments are finished, a professional judge has been living with the facts and the law for days or weeks. They are in the best possible position to explain their logic at that moment. When a judge delays a verdict and the reasons for it, they are forced into double-handling the evidence, re-reading transcripts and notes to recapture their original thoughts. That is not efficiency—it is a waste of judicial resources.

The requirement for immediacy is also a vital safeguard of the integrity of the law. There is potentially a subtle temptation for a judge who announces an initial verdict on a Monday, but writes the reasons for it on a Friday, to reverse engineer the logic of their original conclusions, even if inadvertently. Instead of the reasons leading the verdict, the verdict begins to dictate the reasons. The judge may subconsciously highlight only the facts that make their decision appeal-proof, rather than providing a raw, honest account of why they believed one witness over another. Members may well be familiar with the idea of confirmation bias; it is something that we are all affected by. If we make a decision and then come back to it at a later date, we have an inherent human failing of tending to dwell on, have our attention drawn to and be more mindful of things that reinforce our decision, rather than things that take away from it.

Therefore, immediate reasoning ensures that judges are ruling on the evidence as it was heard. If the Government claim bench trials are superior because they are reason-based, those reasons must be robust enough to be stated out loud at the moment of verdict, forcing a level of intellectual honesty that is the only acceptable substitute for the collective common sense of a jury.

Critics may argue that some cases are too complex for an immediate ruling. However, as some of the evidence suggests, very good reasons to delay should be defined strictly and should not include a busy schedule or a desire to write at another time. A very good reason should be limited to genuinely unforeseen situations. Indeed, as amendment 52 provides:

“The judgment must be given at the time of conviction, except where an adjournment is necessary”

for specific and well understood purposes, such as preparing medical or psychiatric evaluation reports, victim personal statements that were not available or that they sought to amend, or further legal submissions. However, the substance of why must be given when “guilty” or “not guilty” is uttered.

The Government cannot have it both ways. They cannot strip away, to a great extent, the historical right to a jury trial in the name of streamlining the system and allow that system to grind to a halt while a judge reserves a decision for days, weeks or potentially even months.

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[Joe Robertson]

I accept that judges can do all this, and indeed sometimes do all this. Surely, however, the Minister will accept that, given human nature, there is a limit to the extent to which a human being can be so well trained or so professional that they can simply disregard something that they have heard as though they had never heard it. Indeed, that is one reason why we have jury trials. It is also one of the leading reasons why in more complex cases or longer cases—in cases involving murder, or sexual offences, or in all those cases that have to be heard by a jury—we have a jury. It is to separate the decision makers of fact from the decision makers of law and procedure.

[Dr Mullan]

As we are touching on these issues, those of us on the Opposition Benches are happy to say that we have to work harder on judicial accountability and decision making, and we are not afraid to say that we think it is better that juries do these things, because judges err.

There is an irony really, because at the heart of the Bill is another measure in relation to the powers that we give family court judges. My hon. Friend will know that the impact assessment says that the law at the moment basically says that judges already know—based on the law—that the welfare of the child comes before visitation rights. The Government accept that that is what the law says, but they do not trust judges to understand and accept that law. They want to introduce measures that further restrict judges’ decision making. The Government cannot have it both ways; they cannot introduce measures in the same Bill that are based on the idea that judges are not sufficiently enacting the law as written, and then say that we are wrong to have concerns about judicial decision making in these sorts of scenarios.

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The Crown court backlog is at a record high. Everyone in the system—victims, witnesses and defendants—is already waiting too long for justice. In that context, the Government do not believe that it is responsible to delay the commencement of clauses 3 to 5 pending the commissioning and completion of a further review, particularly when we have the views of senior and retired Crown court judges who have been clear that they do not expect the delivery of judgments to involve significant delay. Sir Brian Leveson considered the matter in part 1 of his review and was clear that he did not anticipate that such judgments would need to be lengthy or even in writing. For that reason, I urge the shadow Minister to withdraw his amendment.

[Dr Mullan]

I want to pick up on a couple of points the Minister made, particularly the one that our amendment, in relation to a study, would require primary legislation. That is simply not the case. We specifically identified an element that could be studied without a need to change the law. No law would need to be changed to allow some retired or sitting judges to sit in on a court case and provide the judgment that they would have given had they been hearing it. No legislation is required for that.

The Minister leans heavily on the experienced judges who agree with her, but more than 3,000 legal professionals, including senior retired judges, disagree with her. And of course, to move away from opinions, the Government’s own study, which attempted to turn opinions into a quantitative exercise, found that the savings could be half those that Sir Brian Leveson said are achievable. It found that they could be between 10% and 30%, whereas Sir Brian said they would be 20%.

The Minister said that time would be saved on summing up. I sincerely hope the defendant will get to hear the same things a jury would have got to hear. If they do not, I suspect we will see a further increase in appeals.

The Minister spoke about the time taken. A Bill that will have a seismic impact on our legal system has been introduced without a public consultation or pre-legislative scrutiny, and the Committee time has been less than that given to the Railways Bill. As I understand it, the Bill has been given roughly the same time as the Salmon Act 1986, which introduced the offence of salmon handling, so it is reasonable to ask whether it has been given sufficient time.

If the Minister thinks there will be no real gap in time in terms of judgments, there is no reason for the Government to oppose amendment 52, which says that those should be immediate. Given the controversy and the varying opinions from experts on both sides of the debate, a non-legislative study is a perfectly reasonable thing for the Opposition to ask for. We will press amendment 52 to a vote.

Question put, That the amendment be made.

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[Siân Berry]

I will speak as quickly as I can. I support the amendments tabled in this group by the Liberal Democrats, which would limit any increase in the sentencing powers of magistrates beyond 12 months; amendment 34, which was moved by the hon. Member for Bolton South and Walkden; and the Liberal Democrat and Conservative amendments that would ensure that, if that limit is not accepted, any further changes are made by the affirmative resolution procedure.

I am sure we will all remind the Minister that Sir Brian Leveson specifically made his reforms to jury trials contingent on not increasing the sentencing powers of magistrates. He stated that specifically in paragraph 71 of his report. He also stated:

“My strong recommendation is that the maximum should remain at 12 months.”

That followed, in paragraph 70, another important caveat that the Government seem to have overlooked:

“While removing the right to elect for certain offences may streamline the judicial process and alleviate the burden on the higher courts, it raises concerns about balancing the right of the defendant with the broader interests of justice.”

We have to admit that the Government are taking a risk with the moves they are making. The magnitude and volume of that risk increase with the number of extra cases that are pushed to the magistrates courts through other provisions in the Bill, while the consequences of that risk increase with the higher sentences made possible under clause 6. This is not a step we should take alongside those other steps. They increase the risks to justice.

In oral evidence, we heard from Claire Davies, the leader of the south eastern circuit, who said of magistrates courts:

“There are errors and mistakes made, but if the length of sentence is extended, it will potentially increase that risk.”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 51, Q99.]

We also heard from Emma Torr, from APPEAL, who described

“swift and speedy justice in the magistrates court. It is often rough and ready; we are talking about cases being tried by lay justices, some of whom may be experienced but some may not be, and we are also talking about less experienced judges. You often find in the lower court, the magistrates court, that advocates are more inexperienced and tend to be at the start of their career.”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 86-87, Q185.]

This point was also emphasised by Fiona Rutherford, the chief executive of JUSTICE, who said:

“There is a question mark about the accuracy of the way in which magistrates are making decisions.”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 82, Q174.]

These are the risks we are talking about compared with having a judge and jury.

Risks also come from the surrounding bureaucratic situation, which could lead to more defendants being unrepresented. When the shift is made, we will be leaving them without legal aid, because of the changes in the income requirements. We heard from Fiona Rutherford of JUSTICE that without this representation there could be additional risks to victims.

The Minister needs to admit that this part of the Bill goes too far. On top of the other things she is doing, she is adding more consequence, not just more volume, to the risk equation. That is a poor step to take. Clause 6 should not stand part, and I support all the amendments.

[Dr Mullan]

I rise to speak to my amendment 53 and to amendment 13, tabled by the Liberal Democrat spokesperson, the hon. Member for Chichester.

Clause 6 includes a provision that seeks to expand the Secretary of State’s power to vary the maximum custodial sentence that may be imposed by magistrates courts for triable either-way offences. At present, the general limit for such sentences stands at 12 months, having been increased from six months in 2022. The Bill proposes that we allow that limit to be further increased, by way of regulations, to 18 or even 24 months. While the Government frame that as a necessary tool for operational flexibility, it represents a significant extension of the custodial powers of our magistrates courts.

The central question we must address is not merely whether the powers should be increased, but how such a decision should be scrutinised by Parliament. The Bill allows the changes to be made under the negative procedure. Through amendment 53, we propose that any future exercise of the power be subject instead to the affirmative procedure, requiring the explicit approval of both Houses of Parliament. As I have said, I also support amendment 13 from the Liberal Democrats, which says the powers should not be increased full stop.

Increasing the maximum custodial sentence a court can impose is not a minor or technical adjustment; it is a substantive change in the fundamental balance of our criminal justice system. When we discuss the power to deprive a citizen of their liberty for up to two years, instead of one, we are discussing one of the most serious powers the state can wield. Magistrates courts are designed for summary trial, which is a process intended for the swift disposal of less serious, low-level cases. Allowing that framework to pass two-year sentences is a major shift. As laid out by the hon. Member for Brighton Pavilion, the evidence we heard explained that such an expansion will mean that more serious and complex cases will be dealt with by lay justices.

For a change of this magnitude, the negative procedure provides an inappropriately low level of scrutiny. To understand why the affirmative procedure is necessary, we must look at the mechanics of parliamentary oversight. Under the negative procedure, a statutory instrument is usually made by a Minister and becomes law immediately upon being laid before Parliament. It remains law unless either House successfully votes to annul it, through a process known as praying against an instrument, within a set 40-day period. In reality, the power to object is rarely used and even more rarely successful. I understand that the House of Commons has not successfully prayed against a negative instrument since 1979, and the House of Lords has not rejected one since 2000. The procedure essentially relies on the absence of objection to grant legitimacy to a change in law. In an area as fundamental as the power to imprison citizens for extended periods, Parliament should not rely on a lack of noise to signify consent. It must require explicit, recorded approval.

The affirmative procedure provides a much more robust safeguard. Under that route, a statutory instrument is laid in draft and cannot become law until it has been actively debated and approved by both the Commons and the Lords. That ensures that the Government must stand at the Dispatch Box, in the same way the Minister has been doing all week, in a Committee Room just like this, and openly justify why the increase in sentencing powers is necessary and proportionate.

That level of scrutiny is essential, because the Government’s current justifications are contested. The Government argue that the powers will allow more cases to be retained in magistrates courts, thereby reducing pressure on the Crown court backlog. However, independent bodies such as the Institute for Government have noted that assumptions about time savings in magistrates courts are highly uncertain. There are serious concerns that magistrates courts, which already face their own peak backlog of over 370,000 cases, simply do not have the capacity to absorb that work. Although the provision in clause 6 will not lead to an immediate increase in sentencing length, it is reasonable to assume that the Government would not have introduced it if they did not have some intention, at some future point, to increase the sentencing powers available to magistrates and therefore to retain more cases in the magistrates courts.

We must also consider the differential quality in justice administered under the expanded powers. As we have heard, critics, including the Criminal Bar Association, warn that extending summary justice to cases carrying two-year sentences is a recipe for—[Interruption.]

[The Chair]

Order. I suspend the Committee for 15 minutes for the first vote and 10 minutes for each subsequent vote. I aim to resume at 8.25 pm.

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[Christine Jardine in the Chair]

[Dr Mullan]

Thank you, Ms Jardine, for taking the Chair as we continue this later sitting. Before we suspended, we were debating my amendment 53 to clause 6 in relation to the use of the negative procedure rather than the affirmative procedure to change sentencing powers. I was talking about the importance of considering the nature of the justice delivered in the magistrates court when making changes to the powers of that court. As I have said previously in Committee, the fact that we have some criticisms of elements of the magistrates court does not mean it should be got rid of—we accept that these must be balanced measures—but it is important for us to consider that when expanding its powers.

Critics, including the Criminal Bar Association, warn that extending summary justice to cases carrying two-year sentences is a recipe for what they describe as “rough justice”. The procedures in magistrates courts are streamlined. For example, the Government’s own impact assessment assumes that even these more serious trials will be completed in a matter of hours. Furthermore, there is a significant disparity in access to legal representation. The income threshold for legal aid in magistrates courts is much lower than in the Crown court. That means that a defendant who would have been eligible for a publicly funded lawyer in the Crown court might be forced to represent themselves in the magistrates court, even when facing a two-year prison sentence. If we are to allow a system where unrepresented defendants face longer custodial terms in shorter hearings, that decision must be subject to the highest level of parliamentary debate.

It is also worth noting that the Government’s proposals depart from the recommendations of the very review they claim to follow. Sir Brian Leveson, in his independent review of the criminal courts, recommended that the Government’s ability to amend magistrates’ sentencing powers by statutory instrument of any kind should actually be repealed. He suggested that the current 12-month maximum should be made permanent, rather than leaving it as a “variable” that the Executive can adjust.

Crucially, when we have previously raised the question of the Government varying from Sir Brian’s recommendations, the Minister has prayed in aid Sir Brian saying that the Government could go further in some circumstances. This could not be further from that. He said that the reforms he recommended were “contingent” on the Government also introducing a power to cap the sentences that could be passed by magistrates. The use of Sir Brian as evidence of opinions across the board is reaching farce now. We have the Government disagreeing with Sir Brian on whether there should be a judge and two magistrates, disagreeing with Sir Brian over the maximum sentence for triable either-way cases in the magistrates court, and now they are directly opposing what he wanted them to do in relation to magistrates’ sentencing powers.

It is important that we read what Sir Brian said:

“My strong recommendation is that the maximum should remain at 12 months. Furthermore, I recommend that the legislation be amended so that the Lord Chancellor no longer has the power to reduce the maximum to six months via a Statutory Instrument. The 12-month maximum should be made permanent.”

Here we have another example of the Government wanting us to set aside all our concerns about the erosion of jury trial rights on the basis of Sir Brian’s expertise and experience, at the same time as ignoring it themselves. If the Government intend to move in the opposite direction of expert legal advice, it is only reasonable that they be required to obtain explicit approval from Parliament through the affirmative procedure every time they seek to do so.

We must look at the cumulative impact of the Bill. While clause 6 increases the power of the magistrates courts at the front end, clause 7 restricts the right to appeal those decisions at the back end. The Bill replaces the automatic right of appeal and full rehearing with a permission-based model. That creates a clear and troubling shift: more power is being exercised at the lower level, while the ability to challenge those decisions is being constrained.

With around 40% of appeals against conviction from magistrates courts currently successful, it is clear that the system is correcting a meaningful level of error. Increasing sentencing powers while simultaneously narrowing the mechanisms for correcting those errors is a double blow to the rights of defendants. The combined effect makes it even more imperative that any increase in power is not snuck through via the negative procedure. As we have heard from other Members, there is a backlog in the magistrates courts of 379,000 cases. Anything that increases their workload will potentially have adverse consequences.

In summary, increasing the maximum sentence in magistrates courts is a major constitutional change that affects the liberty of the citizen. It is not a matter of administrative convenience that should be left to the fast track of the negative procedure. If the Government are confident that increasing the maximum to 18 or 24 months is the correct solution to the backlog, they should have no objection to making that case openly and seeking a positive vote of approval from both Houses.

We must ensure that our fundamental rights are not treated as administrative details to be checked off on a spreadsheet. For those reasons, I support the proposal that any future increase to magistrates’ sentencing powers must be subject to the affirmative procedure, as well as other amendments that seek to constrain the Government’s actions in this regard.

[Joe Robertson]

I support the position of my hon. Friend the shadow Minister. There is a degree of cross-party support on the Opposition Benches; we heard some very good submissions from the hon. Member for Brighton Pavilion, which seems a while ago now.

The Government’s position on many of the contentious issues in Committee has been anchored on Sir Brian Leveson’s report—indeed, why would it not be? It is an independent report that the Government commissioned. But they freely depart from his recommendations, seemingly on a whim, without any substantial justification. This is one of those cases. Sir Brian Leveson was very clear that magistrates should continue to have sentencing powers only up to a year, and the Government are effectively doubling those sentencing powers.

This is about more than just sentencing powers; it fundamentally changes what magistrates courts are for and how our criminal courts are structured. The Crown court, whether sitting with only a judge or with a jury, is for more serious cases, with more serious sanctions, because it is able to deal with levels of complexity, be it in relation to evidence or procedure. We have heard about “rough and ready” justice in the magistrates court. That is not a criticism; it is a way of characterising the absolute foundations of our magistrates courts. They do a huge amount of criminal work in this country, but they are meant to be summary courts; they are meant to be courts that act quickly and do not have the rigour or probity of the Crown courts. That is their particular purpose, and it is therefore right that they have always had limited sentencing powers when it comes to deciding whether to lock someone up. Fines and community orders are the sort of sentences that are far more typical of magistrates courts.

Depriving someone of their liberty is a very serious matter. It is one thing to deprive someone of their liberty for months, especially given that such sentences are often reduced—in practice, a year can be reduced to months—but it is another thing to deprive someone of their liberty for two years. That would suddenly make the magistrates courts’ summary-style justice, or rough justice—call it whatever; I do not mean any of those words as a criticism—incredibly inappropriate for the powers that the Government would like them to exercise. The clause therefore does much more than just fiddle with thresholds, or however the Government might want to characterise it—we will soon find out. It fundamentally alters what magistrates courts are for.

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[Joe Robertson]

This is a strange venue to ask for an apology for previous Government legislation from an MP who, like me, has been in this place for less than two years. The hon. Gentleman and I were on broadcast media yesterday; that might have been a better venue for him to ask me to apologise, but I would have rejected his invitation at that time, and I will certainly reject it in Committee. This is not about previous Governments’ views or opinions; it is about the views and opinions of this Parliament.

[Dr Mullan]

This happens all the time. We point out deficiencies in the Government’s position, so Members get their Whips’ handouts with suggestions to “just point out to them what they did on x, y and z.” But the public do not care. That is a zero defence of their position—[Interruption.]

[The Chair]

Order. I think we are getting a bit off track.

[Dr Mullan]

I will be quick. The public care about the Government’s justification for what they are doing, not what we have done. If the Government are leaning on what we have done in the past, it shows how weak their arguments are.

[Joe Robertson]

Indeed, it is quite interesting that the Government’s benchmark is the previous Government. I do not recall them making that clear at the last election. I will leave it there.

[Dr Mullan]

I rise to speak in support of amendment 22 tabled by the Lib Dem spokesperson, the hon. Member for Chichester. This is another element of the Bill that will not survive contact with the Lords. It is quite clearly unfair.

I want to pick up on some of the points that were made. There are key reasons why the amendment is sensible. In other parts of the debate, Government Members have raised the negative impact of cross-examination by defendants, which they do not think is a good thing. They do not think it is a good thing that victims may be cross-examined by defendants, yet they will not support a measure that would reduce the risk of that happening, and it does happen. The context of all the different parts of the clause is important to bear in mind.

[Rebecca Paul]

Does my hon. Friend agree that Government Members and the Minister have spent a lot of time talking about victims being central to all of the changes, so why on earth would they not support the amendment if it is really about protecting victims from being cross-examined?

[Dr Mullan]

The consistent position is that unrepresented defendants can take up more court time and can cross-examine victims, and that is more difficult for victims. As other Members have touched on, this takes place in the context of the other things that we have been unsuccessful in changing this evening. Sentencing powers are increasing and the right to appeal is being watered down. There is a pernicious erosion of the fairness of our courts at the same time as the yardsticks are being essentially changed in relation to access to legal aid.

This is important in the wider context of what is happening with legal aid. The Minister wants to say all the time that the Government are stretching every possible sinew to do everything else they possibly can to improve the backlogs in the courts. Yet we heard in evidence from the Criminal Bar Association and the Bar Council that the £34 million of legal aid announced in December still has not filtered through into the system and is still not available. We are now in April.

[Sarah Sackman]

Will the hon. Member acknowledge that one of the first things this Government did when we came into power was invest £92 million, focusing primarily on duty solicitors who deal with cases at the coalface, including those involving unrepresented defendants? That money is in play. It is in their pockets. Will he acknowledge that?

[Dr Mullan]

Yes, absolutely. I have acknowledged that on a number of occasions, along with what the Government have done on Crown court sitting days and a number of other ways that I recognise the Government have improved things. The point I have made repeatedly is that the Crown court backlog prior to the pandemic was lower than the backlog we inherited from the previous Labour Government. Again, I think the Minister might get a better hearing from us Conservatives if she was fairer in that regard, in terms of her criticisms of our record—if she actually acknowledged the record in its entirety in relation to the backlogs prior to covid.

I mentioned that £34 million because the Minister cannot have it both ways. She cannot say, “We are doing everything possible,” and then react so vociferously when I point out a clear example of where the Government are not doing everything possible. If they were doing everything possible, that £34 million would be available to practitioners through additional legal aid. So right now, the Government are not doing something that they could do to help increase things such as the availability of legal advice and the number of people choosing to practise in the criminal Bar.

Again, in relation to legal aid, this is a perfectly reasonable amendment. I am pretty confident that the Government will have to announce or concede to this change at some point, and it is purely for party political reasons that the Minister will not concede this point—because it is a Lib Dem amendment. I would eat my hat, if I ever had one, if this Government do not end up conceding this point in the end anyway.

[Yasmin Qureshi]

On a note of clarification, I understand that Opposition Members have mentioned defendants cross-examining victims, but, in fact, the procedures have been changed. For sexual or domestic abuse-type offences, a defendant cannot cross-examine the victim or complainant himself, or herself. Instead, the court will appoint a solicitor or barrister to do the cross-examination for them. I just add that for clarity.

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[Sarah Sackman]

Clause 6 introduces a measure to extend the Secretary of State’s regulation-making power to enable the general limit on magistrates court sentencing powers to be set at 18 or 24 months of maximum imprisonment for single and multiple triable either-way offences. Currently, magistrates court sentencing powers are set at 12 months. The Government can already vary magistrates’ sentencing powers between six and 12 months by secondary legislation using the negative resolution procedure. That has been done twice, and used to good effect, since July 2022.

However, the Crown court is now facing significant pressures, and many triable either-way offences currently heard and sentenced there can, as we know, be fairly and expeditiously dealt with in the magistrates court. Increasing magistrates court sentencing powers is one of the ways in which we will increase the range of cases that magistrates courts can hear and sentence, freeing up valuable Crown court capacity for the most serious and complex cases. By enabling the powers to be increased in that way, the clause will help us to free up capacity in the Crown court to the tune of 8,000 Crown court sitting days in the 2028-29 financial year, making a significant dent in the backlog.

Magistrates are well prepared to take on that responsibility. They are dedicated and highly trained volunteers who give back to their community, working alongside highly trained legal advisers and an impressive cadre of district judges. The magistrates undergo an extensive selection process and work tirelessly to ensure that justice is delivered swiftly and fairly, currently assuming responsibility for 90% of all criminal cases.

The clause does not increase magistrates court sentencing powers; instead, it enables the Secretary of State to set the general limit in the future at 18 or 24 months. As I have said, any such change would be made through a statutory instrument under the negative resolution procedure, when necessary, to respond to changing circumstances and manage unsustainable pressures across the criminal justice system.

Importantly, the clause also ensures that the aggregate maximum term available for consecutive sentences will track the general limit. It also provides a safeguard that magistrates courts cannot impose a sentence exceeding the offence-specific maximum available on indictment, even if the general limit is set at 18 or 24 months. As such, I commend clause 6 to the Committee.

[Dr Mullan]

I oppose clause 6, which, as we have discussed, grants the Lord Chancellor the power to increase the maximum sentencing limit in magistrates courts from the current 12 months to 18 or even 24 months. While the Government present that as a necessary measure to relieve the backlog in the Crown court, we must look closely at what is being sacrificed in the name of speed.

This proposal is not a minor adjustment; it is a fundamental shift in the nature of summary justice. It would allow magistrates—volunteers who have to sit only 13 days a year and who on average sit 17 to 23 days—to deprive a citizen of their liberty for up to two years. That expansion of power comes at a time when the system is already under immense strain in the magistrates courts, and it is the view of the Criminal Bar Association, JUSTICE, the Bar Council and others that this move is unnecessary and potentially unsafe for the integrity of our legal system.

The central concern shared by legal professionals is that magistrates courts are simply not designed to handle the complexity of cases that may, at some point, carry two-year sentences. As the Criminal Bar Association pointed out in its evidence, the “practices and procedures” of those courts are “necessarily ‘summary’ in nature.” They were built for the swift disposal of what some consider to be minor offences, not for the intricate legal and factual disputes that characterise more serious crimes. The Criminal Bar Association has been blunt in its assessment, calling the extension of summary justice to cases carrying two-year terms a “recipe for rough justice”. That concern is backed by the Government’s own impact assessment, which assumes that magistrates will complete those more serious trials in just a few hours. As the CBA notes, that assumption is

“clearly naïve in the extreme”.

Either the cases will not receive the scrutiny they deserve, or the predicted time savings will never materialise.

One of the most troubling aspects of increasing sentencing powers is the legal aid gap. Given that we were unsuccessful with amendment 53, it is important to reiterate the impact of that gap when considering the clause as a whole. At present, the income threshold to qualify for a publicly funded lawyer is significantly lower in the magistrates courts, at £22,305, than in the Crown court, at £37,500.

JUSTICE has highlighted the severe unfairness that this creates. Individuals in full-time, minimum-wage employment, who would be eligible for legal aid in the Crown court, will find themselves ineligible in the magistrates courts. We face a reality where a defendant could be facing a two-year prison sentence while being forced to represent themselves, because they cannot afford a lawyer and do not qualify for state support. As JUSTICE warns, unrepresented defendants are often observed to receive harsher sentences, as they do not know how to mitigate. We cannot call a system just if it increases the stakes of a trial, while simultaneously stripping away the means for a professional defence.

We must also confront the impact of these changes on minority communities. The Bar Council and JUSTICE both point to the findings of the 2017 Lammy review, as it is referred to in shorthand, which identified juries as a

“success story of our justice system”,

because they do not appear to discriminate between different ethnic groups when returning verdicts. However, the review found that the positive story of jury equity was not matched in magistrates courts. The Minister has previously spoken about the lack of disparity in sentencing outcomes, for example, but specific statistical analysis showed that black, Asian and mixed ethnic women were more likely to be convicted—conviction is the question we are considering here—in magistrates courts than white women.

We have discussed before how that may not necessarily be a direct causal relationship, as it could just be correlation. However, as the Lammy review points out, it is incumbent on Governments of any colour—Conservative, Labour or whatever they might be—to justify and explain those disparities. As we have discussed previously, we have not managed to justify and explain them, yet we are introducing measures that could potentially exacerbate them.

Beyond ethnicity, the Lammy review noted a great cultural gulf between predominantly white, middle-class judges and magistrates and the defendants appearing before them. By forcing more serious cases into the magistrates court, and removing the right of defendants to elect a jury trial, the Government are moving cases away from the most trusted and equitable part of our justice system into one where public trust, at least for some communities, is already fragile. JUSTICE notes that any reform that reduces choice risks deepening existing disparities and exacerbating distrust for minoritised communities.

The Government’s primary justification is efficiency, but the Bar Council argues that these reforms will likely consume resources without bringing down the backlog. As we have said, there is also a challenge with the backlog in the magistrates courts, which are currently facing their own record high of 370,000 cases. The system is also facing a critical shortage of magistrates and legal advisers. The loss of sitting days due to the absence of legal advisers, who are often trainees, even for better-paid work, is a persistent problem. Some estimates suggest that there are more than 20,000 sitting days-worth of work from professional judges in the Crown court. Expecting that to be absorbed into an overstretched and shrinking cohort of volunteers in the magistrates courts would, as the CBA describes,

“transfer the burden from one over-stretched part of the system to another.”

Finally, we must look at how the clause interacts with the rest of the Bill. While clause 6 increases power at the lower level, clause 7 restricts the ability to challenge those decisions by removing the automatic right of appeal and replacing it with a permission-based model. The Bar Council describes this combination as

“a comprehensive rolling back of safeguards.”

At present, around 40% of appeals against conviction from magistrates courts are successful, and 47% of appeals against sentence are upheld, demonstrating that the lower courts frequently make meaningful errors. Doubling their sentencing powers, while simultaneously making it harder for a defendant to correct a wrong conviction, is a dangerous path to take.

It is also worth noting that the Bill departs from the recommendations of the very review that it claims to implement. Sir Brian Leveson recommended that the current 12-month maximum should be made permanent. I draw attention to a previous response from the Minister, when she again raised the possibility that the review invited the Government to go further. We have discussed that this might be a relevant argument to make if, for example, we were talking about a recommendation on which the review did not clearly oppose the Government going further.

If I was Brian Leveson, I would feel a bit like I was being mugged off by the Government, because they are saying, “We agree with what you want to do, but we’re going ignore you on the position that you are fundamentally clear on. Indeed, we’re not only ignoring your specific recommendation, we’re ignoring what you said about the other recommendations being contingent on the Government doing this thing around controlling the sentencing”. It is doubly insulting to Sir Brian to then suggest, as the Minister did, that he would be relaxed about this, and that he invited them to go further. Certainly, no reasonable person would interpret his suggestion in that way.

There is also a question about the numbers. We know Sir Brian’s central recommendation is that we reach 130,000 sitting days. That is the number that he arrived at. We must assume that he has arrived at that number contingent on the Government sticking to his advice that we do not increase the maximum sentencing powers of the magistrates. If the Government are claiming that that will be a further 8,000 sitting days, there must be some juggling with the figures. If the Government are seeking to achieve 130,000, and Sir Brian thinks that is the right number, and the Government’s plan has got an additional 8,000 that Sir Brian never envisioned, does that mean we have 8,000 to play with in some other regard that Sir Brian did not understand? Can the Minister explain how we have ended up with the same figures and the same goal, but in a completely different way, with a further 8,000 that Sir Brian never anticipated or wanted?

We also heard the argument that this is fine because the youth courts do it. We had that argument in an earlier sitting, and I made it clear that there are some fundamental differences. It really undermines the concept of having a specialist court if what goes on in that specialist court is then used to support an argument of general application. That goes against the whole point of a specialist court—we have gone out of our way in that case, because we recognise that the circumstances are special. For example, the types of custody, the implications for criminal records and the style in which cross-examination happens are all different in the youth court and the adult estate. We must therefore recognise that we are in a completely different position.

The Minister also talked about how the negative resolution procedure is already used in this area. The crucial difference is that we are taking a leap to 24 months, in terms of the impact of these decisions. What might have arguably been permissible at the lower end of the threshold does not automatically translate into an assumption that it is therefore appropriate at the higher end of the threshold. It is because the measure will apply towards the higher end of threshold that we think it is inappropriate. We failed to persuade the Government, and as a result this clause remains concerning.

In summary, the proposal to increase magistrates’ sentencing powers to 24 months is a move towards cheaper, faster justice that is likely to be neither cheap nor fast, and it will certainly not be just. It risks creating a surge of unrepresented defendants, exacerbating racial disproportionality and displacing the backlog into a court jurisdiction that is structurally ill-equipped to handle it. We should not trade away fundamental procedural protections for a marginal gain in court sitting days.

If we want to solve the backlog, we should focus on the low-hanging fruit identified by the Bar Council and others: open all existing courtrooms, more than 10% of which are closed today and were closed yesterday; fix prisoner transport, an issue that costs us thousands of days every year; and properly resource the legal profession. We must reject the 24-month limit and maintain the 12-month cap to ensure that serious custodial decisions remain subject to the full rigour and safeguards of our Crown courts.

[Jess Brown-Fuller]

Clause 6 expands the Secretary of State’s regulation-making power to change the general limit on the custodial sentence that a magistrates court may impose. It replaces the current list of possible maximum terms—six or 12 months—with a new list of six, 12, 18 or 24 months. That will allow the Secretary of State, by regulation, to change the general limit within these set terms.

The sentencing powers of the magistrates court were increased in 2022 from six months to 12 months. This clause would allow the Lord Chancellor to further increase the maximum by statutory instrument to either 18 or 24 months. The result will be more triable either-way cases being heard in the magistrates court. The practical reason we oppose the clause is that magistrates courts are facing their own increasing list—Members can decide whether they want to call it a backlog or a list. I recognise the Minister’s comments that we should not describe the 379,000 cases waiting in the magistrates courts as a backlog and I agree with her assessment that we need a certain number of cases in order for the magistrates court to function.

--- Later in debate ---

[Joe Robertson]

The central issue here, as with so much of this, is the impact that a single provision, or a single intention—in this case clause 6—has on other areas of the criminal justice system, and indeed provisions in the Bill. There is a lot of interplay between clauses 6 and 7—we are about to discuss clause 7, so I will save my comments on that for a few minutes’ time.

The central issue is the unintended consequence, yes, but also the other provisions that Parliament will not get to debate. In this case, Parliament will not get a proper opportunity to debate the fairness of having magistrates courts sentencing up to two years, because the clause effectively creates a power for the Secretary of State to do that job instead. That is why this Committee is having to debate whether it is right that a summary court should suddenly have the power to sentence someone up to two years.

The Government can argue that at least some of the provisions that the Opposition do not agree with are anchored somewhere in Sir Brian Leveson’s report. I would argue that this provision is specifically argued out by Sir Brian Leveson. Indeed, he talked about it being contingent on the magistrates court continuing to have sentencing powers of up to only one year. When the Government appear, in my view, to be doing something that specifically runs against Sir Brian Leveson’s report, rather than is simply absent from it, they need to explain their position. It is not good enough to run the same old arguments. The central argument in all this seems to be efficiency. How much will the Government sacrifice at the altar of efficiency? Efficiency cannot trump all, and certainly not the justice arguments already made by me and others, which I will not repeat.

If the Government cannot explain where these provisions have come from, when they run counter to Sir Brian Leveson’s report, they should rightly submit these proposals through a proper procedure so that they can be debated by Parliament, rather than just giving a power to the Secretary of State.

As I say, I will restrict my comments to the interplay between clause 6 and clause 7, which restricts the right of appeal. We have already heard some good arguments about legal aid, and it does not do much for the Minister, who is quite exercised by the previous Government’s record on legal aid. This is about not necessarily increased funding for legal aid—she says she is doing that already—but the right to it when the state is trying to lock someone up.

[Dr Mullan]

If people end up being seen in the magistrates court when under the old measures they would have been in the Crown court, there will be lengthier trials and, potentially, a more expensive legal aid bill. It may not necessarily even be an issue of resource; it is just about making sure that legal aid follows the cases where they are being heard, which may well even save money.

[Joe Robertson]

That is entirely right but, of course, we do not know, because the assessments in respect of the Bill are so light—there is not one on that point. It may or may not at all mean more spending. So many times, the argument on this issue, and on many others, is, “Oh, it doesn’t affect that many cases,” or, “Don’t worry.” Well, it deeply affects the person whose case it is. If a defendant wants to exercise the right that the Government are pulling away, it is hardly an argument for the Government to say, “Well, we’re not pulling that right away from very many people.” For that defendant, the right has been lost.

The same applies to the argument when it is about victims or complainants. The Government are rightly willing to focus an argument on individual victims; they should be prepared to do that for the individual defendants who will lose rights and, in the case of sentences of up to two years, may suddenly no longer be able to access legal aid because the regime is focused on the venue rather than on sentencing power. That should be adjusted not because of what previous Governments have done, but because this Government are moving the goalposts on sentencing powers in the magistrates court, so they should make the matching adjustment when it comes to qualifying for legal aid. For that reason, I do not agree with clause 6.

--- Later in debate ---

[The Chair]

The way we can best deal with it individually is by being succinct and not repetitive.

[Dr Mullan]

Further to that point of order, Ms Jardine. I seek your guidance. We are discussing issues on which amendments were tabled, but we were unsuccessful with those amendments, so is it not perfectly legitimate for us to discuss all the consequences for the Bill that flow from the fact that the amendments were denied? The Minister may be frustrated and think that that is not a good use of time; we were previously debating things that might not have happened, but now that the amendments have failed, we know exactly what the Bill will do, so it is perfectly in order to go back through the concerns we had. That is my understanding of it.

[The Chair]

I will check with the Clerk, but my understanding is that if an argument has been rehearsed and heard in full and a decision taken, we move on from that argument; we do not go back and re-rehearse it. To that extent, the Minister is right. If you have already debated an issue in connection with an amendment and voted on it, you do not go back and bring it up in relation to a further amendment, unless it is a new aspect that you have not debated before. Does that help?

--- Later in debate ---

[Sarah Sackman]

Members have asked about the intended impact of the clause. As I explained earlier, the reason why we are making this change is that we have confidence in our magistrates and because it would save a significant number of Crown court sitting days.

This is a tried-and-tested approach: the sentencing power of magistrates courts was raised from six months to 12 months for a single triable either-way offence in May 2022, under the previous Government—Conservatives can look to their own record to see the evidence for what we should do—and a review of the impact between May 2022 and March 2023 confirmed that increasing magistrates sentencing powers had helped to reduce to pressure on the Crown court. In that context, there was a 21% reduction in the number of defendants sent by magistrates courts to the Crown court for sentencing, and a further 6% reduction in the number of theft offences sent for trial to the Crown court by March 2023. That shows how recalibrating sentencing powers—[Laughter.] I did not realise it was that funny, but we are getting into the witching hour, so I am going to be kind to everybody. That reduction is just one of the ways in which we think the clause can assist with the backlogs.

I addressed the points about legal aid in my remarks on amendment 22, tabled by the hon. Member for Chichester. I have set out the justifications both for extending the powers and for the flexible, agile mechanism that the negative procedure affords us.

[Dr Mullan]

Will the Minister give way?

[Sarah Sackman]

I am not going to give way. For all those reasons, I commend the clause to the Committee.

Question put, That the clause, as amended, stand part of the Bill.

Victims and Courts Bill

Kieran Mullan Excerpts

Consideration of Lords message
Monday 20th April 2026 Commons Chamber

[Alex Davies-Jones]

I welcome the hon. Gentleman’s comments. I was not inadvertently misleading the House; if he looks at the details of Lords amendment 5C, he will see that that is not what it does. The amendment does not simply extend the time limit—it does much more—and it does not extend the time limit for everyone. As I will explain in my comments, this amendment is for the families and for the victims directly. It is not for everyone, as was proposed by the Opposition. This amendment does not just do what the Opposition’s amendment would have done, as Tracey Hanson said in her own words; it does much more with respect to its application, and it is for the bereaved families and victims directly. There is also a statutory duty in this group of amendments to directly inform victims and their families about the ULS scheme, so that they are aware of it in the first place.

[Dr Kieran Mullan (Bexhill and Battle) (Con)]

There will be some back and forth about who wants what elements of this scheme and in what ways, but I think the Minister was wrong to say that our focus was on it being for everybody. I have been clear from the start that our focus was also on extending the provision for victims and their families, and not for everybody.

[Alex Davies-Jones]

I appreciate that clarification. The hon. Gentleman is correct, but Lords amendment 5C does much more than that, through listening to victims campaigners such as Tracey Hanson and Katie Brett directly. The measure is a direct tribute to them, because for them the status quo was neither fair nor acceptable.

I would also like to extend my sincere thanks and gratitude to Katie Brett. Katie, your commitment and courage in campaigning in memory of your sister Sasha has been truly remarkable. I do not need to remind the House that Sasha was brutally murdered at the age of just 16, and since that devastating loss, Katie has worked tirelessly to ensure that the families of victims have the right to be informed about the ULS scheme and that, where they are not told, they are given a fair opportunity to make a request to the Attorney General beyond the 28 day limit. I have felt privileged to get to know you all over the course of this Bill.

Before I turn to the motions that we will debate today, I would also like to thank those who have contributed to recent debates on amendments related to homicides abroad and court transcripts. I thank Members across this House and in the other place for the thoughtful way in which they have engaged with those issues. I pay particular tribute to the hon. Member for Maidenhead (Mr Reynolds), who has campaigned to ensure that support is available for families bereaved by homicide abroad as they navigate such tragic events. In the other place, the Government committed to working jointly with the Foreign, Commonwealth and Development Office, and the Home Office, to undertake a review of how support is provided to those families and to assess how current arrangements are operating.

--- Later in debate ---

[Madam Deputy Speaker (Judith Cummins)]

Order. Before I call the shadow Minister, Members may wish to refresh their memories. According to the rules of behaviour and courtesies in the House of Commons, we must never directly address visitors in the Public Gallery.

[Dr Mullan]

It is a pleasure to take part in this debate on the Lords message on the Victims and Courts Bill.

The Bill has been debated extensively in the other place. I thank the Lords for their care and consideration in trying to improve it, as we tried to do in the Commons. Members will know that, when the Bill was last in this House, we were sadly defeated by Labour MPs on a number of provisions relating to court transcripts, the victims code and the unduly lenient sentence scheme. Since then, the Lords have done a good job in securing concessions from the Government, including an agreement that there should be a clearer and more defined set of rights for victims of homicide abroad, which the Minister mentioned.

Although it is not the subject of the debate, I join the Minister in acknowledging the campaigning by the relatives and MPs of Olivia, Zara, Sabina and Jan, which we have discussed a number of times in the Chamber as we passed specific amendments.

Today we are considering two remaining provisions added in the Lords. I begin with the Government amendment in lieu of the Lords amendments on the unduly lenient sentence scheme. Many Members of this House will be familiar with the ULS and will have used it themselves. Anyone, including a victim, a relative of a victim or a member of the public, can ask the Attorney General to consider whether a sentence should be referred to the Court of Appeal as being unduly lenient. If the Attorney General considers that it might be, they refer it to the Court of Appeal for review. However, there is a strict 28-day limit within which the Attorney General is able to refer a sentence to the Court of Appeal—and, by extension, a 28-day limit within which the victim or a member of the public can refer the case. If the Court of Appeal finds that the sentence is unduly lenient, it may alter the sentence or substitute it for another.

I have used the scheme on occasions when I have considered sentences to be unduly lenient, including, most recently, in relation to the horrific murder of Alana Odysseos, who was murdered by her boyfriend, Shaine March. He stabbed her 19 times when she refused to have an abortion. Despite having been convicted of murder and released on parole for that offence, when he committed this second murder, he was given a second life sentence—a term that is increasingly unfit for purpose—with the prospect of leaving prison again. That was plainly wrong, and after I referred his case to the scheme, his sentence was overturned and replaced with a whole-life order, meaning that he will never be released. I have had the pleasure of speaking with Alana’s sister, Jasmine. She has told me of the importance of that outcome, which means that Mr March is serving a sentence that reflects the gravity of his crime. That demonstrates how effective the scheme can be in certain circumstances, but it does not always operate as we might want it to.

I have had the privilege of being able to meet and work with a number of victims and their families. They explained to me clearly the pitfalls in the scheme, and drew particular comparisons between the rights and privileges of the criminals and those of victims and the bereaved, in relation both to awareness and notification of the scheme and to the time available to use it. MPs and others can refer cases to the scheme, but those most likely to have an interest in making a referral or appealing a sentence are the victims or their families, and they do not always know about the scheme.

There is not much point in people having a right if they are not told about it. The Government have agreed to a statutory duty to notify victims of the existence of the unduly lenient sentence scheme, which will mean that victims and bereaved families can easily find clear information about the ULS and about their rights in the victims code. Will the Minister clarify which body she envisages will have responsibility for that? It is important that we have some kind of plan to ensure that notification is working. I am sure that the various bodies involved would say that they like to think that everybody is told about it, but that is not the case, so how do the Government plan to ensure that whoever is given that job follows through on it?

My hon. Friend the Member for Bridgwater (Sir Ashley Fox), who is no longer in his place, spoke about what the Government did or did not agree to. The Government’s original plan for the ULS in the Bill was not to give victims more time, but to give themselves more time. It was not on their radar, in any way, shape or form, to extend the time available to victims and their families. When we sought to amend the Bill in that respect, we were told that it was not possible and that we would have to wait for the findings of the Law Commission’s review of criminal appeals. I think the Minister must now accept that that was not true—as we knew at the time—because here we are making amendments before those findings are published.

I do welcome the amendments, however. I pay tribute to those I have worked with directly, many of whom the Minister has mentioned. I have worked closely on this issue with Katie Brett from the campaign group Justice for Victims. I pay tribute to her MP, the hon. Member for Blackpool North and Fleetwood (Lorraine Beavers), who made a particularly powerful and effective speech on this matter last time it was before this House. She has been very effective behind the scenes in driving forward this change.

Katie’s sister, Sasha, was murdered in 2013. This is difficult to talk about, but it is the reality of what people are going through. Aged just 16, Sasha was raped and stabbed more than 100 times, and her body was set on fire. Katie and her family believed that Sasha’s killer met the existing criteria for a whole-life order, but he was given only a minimum sentence of 35 years. In reality, that meant that there was every possibility that he would end up getting out of prison. Despite all Katie’s amazing work on this issue, the scheme is not retrospective, which is something the family will have to accept.

Katie was so upset about being unable to successfully appeal the sentence that she collected more than 10,000 signatures on a petition to remove the 28-day limit for appeals.

The way that Katie described the situation has always stuck with me, and I have used it in discussions with Ministers and others. She said that 28 days is the amount of time we have to take something back to a shop. Someone has the same amount of time to decide whether or not they like a top that they have bought. How can we have the same test for something so serious? That measure was a cross-party one—we did not amend it when we were in government.

I also met Ayse Hussein, another member of Justice for Victims, who campaigns on behalf of her cousin, Jan Mustafa. Jan’s killer had raped, tortured and imprisoned various girls and young women. He murdered Henriett Szucs and Jan and hid their bodies in a freezer, one of top of the other. He did not receive a whole-life sentence and may leave prison one day. Again, Ayse and her family never knew anything about the scheme.

I have also had the pleasure of meeting Lauren Redmond, who lost her ability to appeal a sentence purely because of errors made by the Crown Prosecution Service. When a request to appeal the sentence was placed, the Attorney General’s office asked for the relevant files. The CPS sent the wrong date to the Government, who then worked towards an incorrect timetable. As a result, Lauren was denied the right to appeal.

I have also had the opportunity to meet Tracey Hanson. You have given us guidance on addressing visitors in the Public Gallery, Madam Deputy Speaker, but the Minister has already done it for us. Tracey has campaigned for many years on this issue, and works on victims’ behalf more generally through the Josh Hanson Trust, which is named after her son. I know that she has been supported by the Victims’ Commissioner in that work. As the Minister said, Joshua was 21 when he was murdered in an unprovoked knife attack. Tracey and I have not always seen eye to eye on exactly how the scheme should be reformed, but that in no way diminishes the incredibly vital role that she has played over many years in campaigning for improvements to the scheme. I pay tribute to my hon. Friend the Member for Mid Bedfordshire (Blake Stephenson), who has done a great job of advocating and lobbying on Tracey’s behalf.

I am glad that the Government have been persuaded to act. They will now allow up to six months for victims and their families to make use of the scheme in certain circumstances. I want to allow space for Katie and Tracey’s words on those changes. Katie said:

“It’s a relief that, in Sasha’s memory, victims and their families will have 6 months to challenge an unduly lenient sentence, and the new legal duty to be notified means every family will know their rights to be able to do so. No family should ever be left in the dark like we were, every victim deserves support. We’re grateful these steps are being taken to redress the balance that so often feels weighted against victims.”

Tracey said:

“After…years of relentless campaigning through the Josh Hanson Trust, this is a significant and long-awaited victory for victims’ rights. Following our extensive advocacy, the Government has agreed to transformative amendments to the Unduly Lenient Sentence (ULS) scheme. These changes represent a hard-fought victory in ensuring that families are no longer left in the dark or rushed through a traumatising process during the most painful moments of their lives. These reforms are a testament to Josh’s memory and the passion and dedication of everyone who stood with the Josh Hanson Trust. We have moved forward, but the fight for full equality in the eyes of the law continues.”

Courts and Tribunals Bill (Fifth sitting)

Kieran Mullan Excerpts

Thursday 16th April 2026 Public Bill Committees

I ask the Minister to consider whether jury equity might be needed to ensure natural justice in a number of cases, and to open up the discussion more fully. I am not yet convinced that she has taken my point on board, and I do not expect her to give in directly in our proceedings today, but I hope that I have argued and at least given her pause for thought on this matter, and that she will now think about what she is doing to this centuries-old principle of common law, and how together we might remedy it as the Bill progresses.

[Dr Kieran Mullan (Bexhill and Battle) (Con)]

It is a pleasure to serve under your chairmanship, Dr Huq.

I want to begin by touching again on the question of necessity. One of the key arguments for clause 3, and one of the reasons why the Opposition think there is a debate to be had, is that we do not feel that the new provisions are entirely necessary to bring down the backlog, and that there might be other means by which we might do so.

We have had a debate about what the figures say, and I have laid out why I think they are important. They are important because the Government accept that, quite plainly, they have not yet implemented the reforms that they think are absolutely necessary to bring down the backlog. While the Government and the Opposition recognise that some steps that might help have been taken, such as the lifting of the cap on sitting days, the Minister herself accepts that even that measure will not have had full effect yet. On other measures, such as on prison transport, there has not been any significant reform or undertakings to do things differently. We are at a very early stage of the approach to bringing down the backlogs in the significant way that the Minister and the Opposition would like to achieve.

In that scenario, given that so little has been done in comparison with what we would hope to achieve—with or without the Bill—if there were some suggestion that backlogs were falling, that would be incredibly important for the Committee to understand. It would give us the confidence to question whether, at this early stage, there is an alternative approach. If we are managing to bring the backlogs down in some parts of the country, we could base that approach on understanding what is happening in those areas and expanding on it before taking the unprecedented step of restricting jury trial rights.

The Minister and I had an exchange about this in an earlier debate. I suggested that there have been positive developments and a reduction of the backlog in some areas. I want to be clear about what I said to the Minister:

“What is happening right now with the backlogs is extremely important to this debate. If the backlogs are coming down in some places without these changes being introduced, it is vital to know and understand that.”

I echoed those points in other parts of the debate. The Minister responded:

“I checked this during the adjournment of the sitting: the CBA’s point relates to new receipts in certain courts, rather than the state of the backlogs, which, as I said, continue to rise. I absolutely welcome the progress in some parts of the country in lowering receipts, which is obviously good news for the courts, but that does not yet reflect any lowering of the backlogs. As we would expect, the investment will take time to kick in.”––[Official Report, Courts and Tribunals Public Bill Committee, 14 April 2026; c. 159.]

In response to my question as to whether the backlogs were coming down in some parts of the country, the Minister told the Committee—on the record—that they were not.

As Members might imagine, I went away and had a further look at the data to ensure that that was the case. My understanding of the latest available published statistics is that the Minister may have inadvertently misled the Committee in stating that the backlogs were not coming down in certain parts of the country. As of December 2025—the latest period for which we have this data is from quarter 3 to quarter 4—there has been a drop in the backlogs in the south-east, the north-west and Wales. We have seen a drop in the backlogs in the quarter-on-quarter data in three parts of the country, and it is extremely important that the Committee understands that.

[Alex McIntyre (Gloucester) (Lab)]

As the shadow Minister has the backlog data to hand—I do not—would he mind sharing with the Committee the data for all the other regions and the overall backlog picture for the whole country?

[Dr Mullan]

In all the other regions and overall, the backlogs are going up. That is why we have to understand what is happening regionally and why I asked the Minister about that. Throughout this Committee, one of the main arguments from Opposition Members, the Criminal Bar Association and other opponents of the Bill has been that if we are able to replicate what is happening in the best parts of the system, we should be prioritising that.

For example, Liverpool Crown court does not have what might be called unacceptable levels of backlog. As Sir Brian and others have pointed out, every Crown court has a backlog in the sense of a trail of cases that are due to be heard. That is a normal and needed part of the process of case management, and no one argues that there is an unsustainable and unacceptable backlog in Liverpool Crown court. If Liverpool and whole regions can get it right, surely we should be prioritising trying to replicate that.

[Yasmin Qureshi (Bolton South and Walkden) (Lab)]

The shadow Minister is talking about the north-west, and I am an MP for that region. The numbers are going down in Preston, Liverpool and even Bolton Crown courts, and one reason for that is that they have taken a proactive approach to case management. They are regularly monitoring cases, and going into courts to judge whether cases are trial ready. That is unlike in some parts of the country, where a case is set for trial in two or three years’ time and nobody looks at it or tries to sort out problems until literally two days beforehand, which then leads to a delay.

[Dr Mullan]

The hon. Member has articulated extremely well that these things can be done differently and have a different outcome. I heard about case management directly from Liverpool Crown court. It has an aggressive approach to case management: it swept the cases and was clear whether it needed to be hearing a case or whether it could do any work to get a plea. It does a lot of work, and if every court was doing that, it would deliver different outcomes. The Minister might rightly point out that different courts have different circumstances, but surely the goal should be to correct those circumstances so that the positive things enabling some courts to bring the backlogs down can be done everywhere.

[Linsey Farnsworth (Amber Valley) (Lab)]

My point follows on from the powerful point the hon. Member is making about the need to look at good practice, which is something we should all get behind. Over my many years of working for the Crown Prosecution Service, I saw various schemes aimed at doing just that, but unfortunately, given that we are here today, they did not sort out the issue entirely.

Does the hon. Member recognise the evidence Sir Brian Leveson gave specifically about Liverpool Crown court, in which he cautioned against suggesting that that case could simply be replicated across the whole country? Liverpool Crown court deals with a single police force and Crown Prosecution Service, and has a very small local Bar that work together well. Although we would like it to be, that is not necessarily the case across the country. Does the hon. Member recognise that those circumstances are unique and may not be possible for the whole country?

[Dr Mullan]

Yes, absolutely. In the NHS, I worked on what we might call change and improvement programmes or quality improvement programmes. We worked hard to replicate the best clinical practice everywhere, but it is simply not possible to directly replicate everything that goes on in every unit, although that is not to say that we cannot do some of what goes on. As the hon. Member for Bolton South and Walkden pointed out, we are not talking about a single court; that is why I was clear about looking at this on a regional basis. I do not think that the data in any of these regions is getting better because of one court that has specific circumstances that cannot be replicated. That is why we have to show a high degree of interest in understanding what can be replicated and in trying those measures.

As we heard from the representatives of the criminal Bar and the circuit, we should give them a chance to try some of these things before we do something so unprecedented that will lead to a curtailment of rights. Nobody thinks that the other, positive parts of the Bill, or the measures that do not even require legislation, take away from anything else; they are just exceptionally positive things we could be doing where we do not pay some kind of price. Surely, we should try those before taking the step proposed in the Bill. Whether or not we think this step is reasonable—Labour Members have made it clear that they do—I doubt they think it will not lead to a loss in relation to jury trial rights.

[Rebecca Paul]

My hon. Friend is making a powerful point about the existing backlog starting to go down, and why it is important that we look at that and understand the impact that other measures are having. Does he agree that the recent change to suspensions for three-year sentences, which went live only a few weeks ago on 22 March, will decrease receipts to court, as it will increase guilty pleas? Whether that is good or bad is a totally separate debate, but it will surely reduce the backlog further.

[Dr Mullan]

Yes, and my hon. Friend did an excellent job of pointing out that although that might have been in some non-statutory documents, we do not know, because we do not have the details. We do not know whether that was included in the impact statement or the modelling that the Government have relied so heavily on to make their case. As I have said, it is extremely important that the Minister said, on the record, that there was no lowering of the backlogs in any of the regions. The data I can see suggests that there has been a quarter-on-quarter lowering of the backlog in three regions.

[Alex McIntyre]

For the sake of clarity for the whole Committee, is it not also true that quarter-on-quarter data generally shows a decrease in backlog between Q3 and Q4 in most years for which we have data, because there is a drop in receipts around that time of year? Does the hon. Member recognise that if we look at the data for the overall year, the backlog has been reduced only in the north-west, and by only 2%? If we reduced the backlog by 2% a year, it would take 50 years to clear.

[Dr Mullan]

I accept the first point. If the Minister had said, “Yes, there is a drop in the backlog in those three regions, but we tend to see that because of this,” citing the points the hon. Member made, we would be having a different discussion, but she did not say that; she said there was no drop.

On the second point, the hon. Member is also right: if that rate of drop was all we were ever going to get, it would not make a material difference to the backlog. That is why I was very clear that, if we are getting a drop, in a context where everybody agrees we are very early in the process and have done a fraction of the things we could do, it is important for us to look at it. If we were at the end of the process and had done all the things we all agree are positive and should be done, and that was the rate of return we were getting, we would be having a different debate. But we are not at the end of it; we are at the start.

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[Paulette Hamilton (Birmingham Erdington) (Lab)]

I thank the shadow Minister; I am listening to what he is saying and I am finding it really interesting. But let us not forget that, until 2019, we had a backlog of something like 40,000, and that has now doubled to nearly 80,000. The Tory party was in power at that time and presided over all this. We are trying to make a difference. It has been said that everything that has been done is wrong, but I ask the shadow Minister why he did not bring in at least some of the preliminary changes that he says we should have brought in. At least then we would have some of those statistics to work from now that we are trying to make changes in the system.

[Dr Mullan]

I draw the Committee’s attention to my remarks at the outset of our proceedings: our judicial system, victims and defendants and how we manage crime in this country are my personal priorities. That is primarily the reason why I sought to be elected to this place, so I will never disagree that justice should get a higher priority than it has historically. I also pointed out that Labour Members more broadly have accepted that justice getting insufficient priority in our political system has gone on for many decades.

The hon. Member for Birmingham Erdington is right in pointing out the backlogs that existed prior to the pandemic, and they were actually lower than those we inherited from the previous Government. If we are talking purely about what happened with the backlogs, our record prior to the pandemic was an improvement on that of the previous Labour Government. That does not mean it is okay; that does not mean we say, “We did a great job,” but it is important, in balancing and understanding the debate, to know that.

In terms of what we did in relation to the covid pandemic and all the challenges it posed, we had uncapped sitting days and Nightingale courts, and we took steps to try to address the backlog. I served on the Justice Committee, scrutinising what the Government were doing at that time. I was very frustrated, because we would visit Nightingale courts and one of the biggest challenges they faced was the lack of certainty about whether they would be renewed in the future. I questioned Ministers at the time about that. To all of us on the Committee, on a cross-party basis, it was obvious that those courts would need to carry on for longer—why not just get on and agree that and let them run in that sustained way? There were many things we could and should have done better. That is not to say that we did not do anything or that, prior to the pandemic, our record did not compare favourably to that of the previous Labour Government.

As I said, in that particular example we introduced the innovation of making the provisional data available earlier. In June, given the challenges with that data being wrong on occasion, a decision was taken to temporarily stop publication, to see if we could close that gap. If that data is significantly different from the revised published data, there is sense in looking again at the methodology and seeing whether the gap between the provisional and final data can be closed. But here we are, almost a year later, and the Government have not chosen to reinstitute the publication of that provisional data. I think everyone on the Committee would benefit from seeing that data, so I would be interested to know whether that is the basis on which the Minister has said the backlogs in some regions are not going down, when in fact, from the evidence and data I have seen, they are.

Our amendments are aimed at delivering a fairer system. Amendment 23 also seeks to achieve that outcome, in a more specific but equally valid way. As my hon. Friend the Member for Reigate said, human beings in criminal cases are not neat, so we need a degree of flexibility. There is not flexibility in all parts of the system at the moment, but allowing a judge, on their own, in these types of cases, to allocate, hear the case, determine guilt and issue a sentence is unprecedented in our judicial system—

[Linsey Farnsworth]

District judges in the magistrates courts sit alone every sitting day and hear cases and trials. They then go on to sentence if that person is convicted, or to release them if they are acquitted. That happens every day, so there is precedent within our criminal justice system. District judges hear the most serious and complicated cases that go to the magistrates courts. So there is already precedent for this, and indeed in the youth court as well.

[Dr Mullan]

Although not intentionally, the hon. Member cut me off before I made the point I was going to make, which is that this is unprecedented in cases of this nature, with sentences of this length.

[Linsey Farnsworth]

I am afraid I have to disagree with the hon. Member, because the youth court has powers to sentence people for up to two years, so it already has higher sentencing powers than magistrates. Many of the cases we are talking about in the Crown court bench division would command a sentence of perhaps two years.

[Dr Mullan]

I covered that in earlier remarks, when I pointed out that those people are not adults, so it is a different set of circumstances. If the hon. Member is asking me to be ultra-specific—I am happy to be—what is proposed is unprecedented for cases of this nature, with adults, with these sentence lengths. That is, of course, the vast bulk of our justice system. There are lots of things that we do differently for children than we do for adults in the justice system. I am not familiar with arguments suggesting that those distinctions cannot be made, and that something we do with the youth custodial element or judicial process must therefore be perfectly acceptable with the adult estate. We do not do that.

[Linsey Farnsworth]

But the hon. Member is happy that youths are treated fairly in the criminal justice system, even if a single judge hears their case.

[Dr Mullan]

Again, we talked about this before. There are degrees of fairness. Specifically on whether a defendant will get a judge who is as fair as possible in terms of representation, understanding their background and so on, I think it is less fair than a jury system. But I made it clear that other factors are given greater weight in the youth court. For example, the intimidation that a young defendant might feel in the adult court versus the youth court is given greater weight. I might think overall that the deal, so to speak, for the youth defendant is fair and reasonable, but that does not mean that I cannot say that the absence of a jury might be less fair for a youth defendant in some regards.

[Linsey Farnsworth]

I think the hon. Member is saying this is a balancing exercise. It is about having a fair trial, but one that is equipped within our criminal justice system. That is exactly what the Government are doing here. Of course we need fair trials, but we also need a criminal justice system that is fair, and justice delayed is justice denied. That is not fairness. Would the hon. Member recognise that?

[Dr Mullan]

To use the word that the hon. Member used at the start of her intervention, it is a balance. We in the Opposition are clear that the Government have that balance wrong, which is why we oppose the measures. As I said, the Government want to have this both ways: on the one hand, when it suits them, they say that it is a balancing exercise, but on the other hand, when we point out flaws in the balance, they say, “Everything’s fine. You would be just as happy in a trial with or without a jury.”

The Government should be consistent. If the Government just said, “This is a balancing exercise. There will be some detriment to people as a result, but we believe that it is right”, and then stuck to that line, at least it would be intellectually coherent. The Minister might think that makes it a debating point, but I think it is pretty important in politics to be intellectually coherent. We take a different view from the Government.

The other point that we think is different, too, is that the proposal will not achieve the desired outcome. Even if we agreed, in theory, that the balancing exercise was correct and that the trade-off that the Government seek to achieve were a reasonable one to make against the loss of the rights that we are talking about, we do not think that the Government will get those outcomes. We therefore think that the Government’s argument is fatally flawed in two respects, which is why we continue to oppose the Bill.

As I said, fairness is important. We focused on the example where a first-time offender might end up with fewer rights in our judicial system than a repeat offender; in respect of, for example, loss of respect, reputation, employment or income, the person who has more at stake has their rights removed. That is a point made clearly by JUSTICE, which supports our amendment 39. JUSTICE states that the three-year threshold is likely to lead to outcomes that are seen as unfair by those within the system and by the public. Repeat offenders are more likely to qualify for a jury trial, because their previous convictions would push the likely sentence above three years, while first-time offenders committing the same offence may be denied a jury trial.

When we put that to Ministers, as I said, they say that it is perfectly fine for those people to have a trial without a jury, and that is fair. Ministers also say, however, that they are keeping jury trials for the most serious cases—but if they are keeping it for the most serious cases, they must at some level accept that it is a superior system in some way. Otherwise, why keep it for the more serious cases, as they define them? The Government cannot hold both positions coherently.

Absolutely, as I said, the core issue is fairness. The Government want to have it both ways in this argument, but of course the defendants will not get to have it both ways. The defendants will just have what they are told by the judge, without any ability to exercise their rights in the way that they think is fair or consistent with the broader point. We therefore continue to press our amendment 39 and that is why I ask Labour Members to think carefully; this might not be universal, but how many of them would feel happy if they—with their previous good character, and all the damage that could happen to their reputation and income from a conviction—were not allowed to have the option of a jury trial? I cannot say for sure, but potentially some of them might feel differently then.

[The Minister for Courts and Legal Services (Sarah Sackman)]

It is a pleasure to serve under your chairship, Dr Huq. I thank my hon. Friend the Member for Bolton South and Walkden and the hon. Member for Bexhill and Battle for their amendments. I will address amendments 23 and 24 first.

The test for the clause is framed intentionally framed around a single condition: the likely sentence. We are ensuring that jury trials are preserved for the most serious offences. Under proposed new section 74A, indictable-only offences will always be tried by a jury. In all other triable either-way cases, the likely sentence provides the clearest and most objective way of identifying seriousness, ensuring that cases where the likely sentence exceeds three years’ imprisonment or detention are heard by a jury. That follows recommendation 30 of the independent review of the criminal courts.

That is already a feature of our system—every day, magistrates courts determine allocation by assessing the likely sentence on conviction. The clause applies that well-established approach in the Crown court; it is not, in that sense, a departure from the current system, but a consistent extension of it. We do not exclude broad categories of defendants from such an assessment in the existing system, and nor do we intend to do so under the reforms. Doing so would risk undermining the impact that the reforms are designed to deliver.

As such, the test does not introduce separate gateways based on the personal characteristics of the defendant; it is focused rather on the seriousness of the offending. Introducing such gateways would remove a significant number of cases from scope. Nearly a quarter of those convicted in the Crown court are first-time offenders, and these amendments would carve out even more cases than that, as they include wider defendant-specific factors, thereby undermining the purpose of the creation of the Crown court bench division, which is to ensure more efficient processing of cases to reduce the overall backlog on a sustainable basis.

As a general rule, those defendants are not given automatic priority in procedural decisions; case management decisions, such as on adjournments, disclosure directions and trial scheduling in the Crown court, do not tend to turn on the characteristics of the defendant. The amendments would change that approach by determining mode of trial by a number of independent defendant-specific factors. Every defendant in the Crown court will receive a fair trial, and that is not affected by the mode-of-trial decision. We have confidence in our judiciary, who take a formal judicial oath to act independently, impartially and fairly.

[Dr Mullan]

Why does the Minister think it is important that some cases remain with a jury trial? What are the material differences that she sees between a jury trial and a non-jury trial that cause her to seek to allow some to continue with a jury trial?

[Sarah Sackman]

As I have said consistently throughout this debate, we regard jury trials as a cornerstone of British justice. They are part of our legal culture, for all the reasons that Members on both sides of the House have articulated, and we do see a role for citizen participation in our justice system, not least to preserve its legitimacy. But what corrodes the legitimacy of our justice system is a backlog in which we see appalling delays, causing people to lose faith—whether they are witnesses, complainants or indeed defendants—and to pull out of trials. That is corrosive of trust in our justice system. We therefore of course want to preserve juries for our most serious cases. But trust in a system is built on many foundations, and the timeliness and proper administration of that system, including the proper resourcing of the system—which was not the case in the previous 14 years—is paramount when it comes to trust in the system.

[Dr Mullan]

Does the Minister accept that there are elements of a jury trial—not necessarily as a whole, but some elements—that are superior to a trial without a jury?

[Sarah Sackman]

The premise of not just these amendments, but amendments that we have already debated, is that other tiers of the system, whether that be the magistrates court or the proposed Crown court bench division, somehow offend the principles of natural justice. The principles of natural justice are essential; they are foundational. They are based on impartiality, freedom from bias and fair process. All those things are guaranteed under our current system in the magistrates court, and would be guaranteed in a judge-only trial, as articulated by my hon. Friend the Member for Amber Valley; district judges make those decisions on a daily basis.

The hon. Member for Bexhill and Battle wants me to say that, somehow, this would be a lesser justice. I will not say that. I am recognising that there is something special about jury trials—of course there is; it is why I have said consistently that they are a cornerstone of our legal system—but we have to deploy what is a very particular resource that demands a great deal of jurors. We have not spoken about jurors all too often in this debate, but there is something called jury burden. That is why, as we will hear when we come to the clauses that deal with judge-only trials for long and complex cases, particularly for fraud, which place a huge burden on jurors, often with cases lasting months on end, we have to use that resource and deploy it carefully.

However, as I have said repeatedly, and I will say it again, the state’s obligation at every level of the justice system, at every level of seriousness, is to guarantee an individual defendant a fair trial that upholds the principles of natural justice, which is what the hon. Member’s amendment actually focuses on. I am firmly of the view, and the Government are firmly of the view, that, whether by lay magistrates, by judge alone or by a judge and jury, our system upholds those principles of natural justice and is therefore fair throughout.

--- Later in debate ---

[Sarah Sackman]

It is a good question and one that we touched on in our earlier debate in the context of clause 1, where we were discussing the proposal to remove the defendant’s right to insist on their choice. When we step back and look at the entirety of the system, if a person is charged with a summary-only offence that will be considered by the magistrate, there is no choice; you are allocated directly to a trial by the magistrate’s jurisdiction. If a person is charged with an indictable-only offence—a more serious offence—there is again no choice and that person goes to the Crown court whether they like it or not.

Under our system we have this feature of triable either way, where we extend the choice to defendants in a category of cases that we, as a society, have chosen. As I have said, lots of other jurisdictions—and I use the Scottish one as an example because it is proximate—do not have this feature. In many ways, when I came to this debate and to reflect on the policy choices that we might make, driven by the critical—dare I say emergency—context in which we find ourselves, this feature of our system seemed to me quite strange. I cannot deny that it is a choice that people have obviously enjoyed and utilised, with many opting for Crown court trials even when the seriousness of their case meant that it could have been dealt with a lot more swiftly and efficiently in the magistrates court.

We know that people are making those choices, so there must be a reason for that the preference. It might be driven by lots of things: because of confidence and also presumably because people think that they will get some advantage and perhaps a better chance of being acquitted if the trial is heard in the Crown court. However, it is strange when thinking about public services and how we triage and ration what is ultimately a limited resource.

That is why I use the health analogy—and not just because my hon. Friend the Member for Birmingham Erdington is so experienced in that field. When we think about how we triage finite resources within the NHS, we give patients choices around their healthcare, but ultimately the triaging is done by the experts. In this context, the expert is the court. The court knows, based on the seriousness of the offence, what mode of trial is most suitable in the context. Under these reforms, we are saying that it is the court that should decide, rather than the defendant being able to insist on their choice, even if that choice comes at the expense of the complainant, who might end up being the victim in the case, and needlessly dragging things out.

We must be honest and pragmatic. It seems to me a quite unusual feature of our system that it is the defendant that always has the right to insist when, in lots of contexts, the defendant does not get a choice. It is only in this narrow cohort of cases that they do.

[Dr Mullan]

I have a background in healthcare. The Minister has talked about triage being led by healthcare professionals, but there is another side of healthcare where people can insist on choice. This Government have introduced Martha’s rule, where the family member can not only insist on choice, but override what the treating clinical team think is the right course of treatment. They are given a route to go around them, to call someone, to insist that they are wrong and that they fundamentally disagree with them, and to get somebody else in who will challenge what the consultant in charge of the patient thinks is right. The Minister points to one element of the healthcare system where the state has a greater degree of control, but does she accept that there are other aspects of the healthcare system where we allow people to override what the healthcare team want to do?

[Sarah Sackman]

I do not want to labour the analogy—forgive the pun—but in many senses, we do allow that. Under this system and the reformed system, we preserve the right of the defendant to appeal. Having allocated the trial to the venue, be it judge-only or the magistrates court, if the outcome is perverse in some way or the defendant takes issue with it, they can appeal the verdict, provided that there is a proper legal and rational basis for doing so.

--- Later in debate ---

[Sarah Sackman]

I am going to make a little progress—

[Dr Mullan]

Will the Minister give way on that point?

[Sarah Sackman]

I have to make progress. Expanding the test for eligibility beyond seriousness would dilute the focus and risk undermining both the clarity of the allocation framework and the savings these reforms are designed to deliver. I therefore urge my hon. Friend the Member for Bolton South and Walkden to withdraw her amendment.

Amendment 39 would introduce a new route to jury trial, where the defendant demonstrates to the court that the circumstances of their case are such that to be tried without a jury would amount to a breach of principles of natural justice. As I have already said and sought to reassure the Committee, those principles of natural justice are, I believe, preserved in the reforms. Those include the right to a fair hearing, the rule against bias and the duty to act fairly and to give reasons where required. As such, I do not consider that the amendment would add substantive protection beyond the safeguards already in place.

I want to pick up on one or two of the points raised earlier in the debate. There was an exchange between the hon. Members for Reigate and for Chichester relating to change of circumstances. That is dealt with in clause 3, which makes provision that where a charge is added to an indictment—an indictable-only charge—the case would be reallocated to a jury trial. Similarly, there are change of circumstances provisions where there is material new evidence meaning that the judge can make a decision that a case should be more appropriately heard before a jury. That is provided for and is intended to meet the sorts of complex scenarios that both hon. Members raised.

The hon. Member for Brighton Pavilion raised again with me the issue of jury equity. I have heard the arguments. I have listened carefully to her as she has raised them on a number of occasions and I listened to the witness who raised them as well, but we do not think it is appropriate to make a specific carve-out for a specific category of offences in this context.

Finally, the hon. Member for Bexhill and Battle raised again with me the argument that we either do not need to do any of this, or we should wait to see how our other measures pan out—the huge investment in lifting the cap on sitting days and in legal aid, the workforce and the efficiency drive.

[Sarah Sackman]

I am rejecting the addition of any other carve-outs or exceptions beyond the test of seriousness that we lay down in these measures, which is dictated by the likely sentence, the test proposed by the independent review of the criminal courts.

[Dr Mullan]

The Minister said earlier, and she just said again, that it was the test recommended by the independent review. But if we are being specific, the test that was recommended was two years. The Government have made the test three years, so it is not the test that was recommended. It is important that the Minister does not repeat that inaccurate phrase.

[Sarah Sackman]

The point that I was making is that it should be the seriousness of the case that is the sole dictator of the mode of trial, and that likely sentence is the best and most objective test that we have. We must also be mindful of how we administer a system. Sometimes, adding lots of tests not only leads to complexity and introduce uncertainty, but introduces one of the things that we are trying to eliminate—delay. If we have a straightforward, well-understood test that is consistent with the sorts of allocation decisions that magistrates routinely make, we can apply that test consistently.

Returning to another point that the hon. Member for Bexhill and Battle made in relation to necessity, we maintain that we have a serious, nationwide problem. We maintain that that the national overall backlog of 80,203 outstanding cases in the Crown court, as it stood in December 2025, is an emergency. The central projection for the number of sitting days we are likely to need in very short order is 139,000. If I took an optimistic view that the central projection was too high, even in a low scenario we would need 130,000 sitting days. That is not to say that there are not, on a short snapshot basis, parts of the country that are doing better. I have given evidence to the Justice Committee where we have looked at that. Historically, there are parts of the country—Liverpool and Wales are often cited—that have lower backlogs. But there is no doubt that as a national picture—we do not want a postcode lottery in our justice system—the situation needs tackling.

--- Later in debate ---

[Sarah Sackman]

Miscarriage of justice should concern us all. That is why I am happy to see the responsibility for looking into miscarriages of justice being given to the Criminal Cases Review Commission under the leadership of Dame Vera Baird. She gave evidence to the Committee, and her support for these measures is notable. I am not sure why the hon. Member for Reigate thinks that miscarriages of justice will increase under them; there is no evidence for that. One miscarriage of justice is, of course, one too many, but I do not accept the premise of her question, which is that the reforms introduced by this aspect of clause 3 will somehow lead to an increase in the number of miscarriages of justice.

[Dr Mullan]

The hon. Member for Bolton South and Walkden highlighted the Post Office scandal. She talked about those involved in that case as an example of people who supported the defendants feeling that there was a risk of greater miscarriage of justice, so it is not a proposition that my hon. Friend the Member for Reigate has plucked out of thin air. Other people with direct experience of these matters think that is a risk, so would the Minister at least accept that it is a valid concern?

[Sarah Sackman]

The circumstances of the Post Office Horizon scandal are incredibly serious. Part of the reason why they came about is because people were essentially fabricating evidence and using computer evidence in a way that was fundamentally dishonest. However, I do not think that the reform that we are talking about in this context, which is the allocation test, or mode of trial, and allocation to a Crown Court bench division should of itself reduce the confidence that the public can have in the integrity of our justice system. For all those reasons, and the way in which clause 3 is drafted with a focus on delivering swifter justice for victims, witnesses and defendants alike, I urge the hon. Member for Bexhill and Battle not to press amendment 39.

--- Later in debate ---

When I used to practice, we more or less just gave every disclosure document to the defence, apart from those documents that had to be edited or redacted. We sent a whole bundle to the defence and they could have a look. Now, it is different. The prosecutors were told—I know this because I was prosecuting at the time—that they could not just hand over unused materials. The defence has to make the case about why they should have unused materials, and the prosecutor has to sit there and work out why they should be able to have which documents. Those processes have added time. If the defence disagrees, there is an argument before the court on what should be allowed in or not.

[Dr Mullan]

The hon. Member is doing a good job of highlighting the whole additional set of complexities of the new system. We cannot predict how those are going to pan out. She referenced the separation of what a judge will hear and what a jury will hear, to preserve the fairness of the jury’s sentiment. We are now going to be in a position to a much greater extent—it might happen in other courts and other circumstances—where the judge has to hear material that is not going to be deemed relevant to the finding, and then make a finding. I am sure that there is going to be a whole new set of case law, with challenges where defendants and potentially prosecutors will say, “That clouded the judgment. That made the judgment unsound.” There is unpredictability and greater complexity in using this system.

[Yasmin Qureshi]

Yes, absolutely. At the moment, one of the beautiful things we have is that the judge determines sentence and directs on law, and the jury decides on the innocence or guilt of a defendant. It is fantastic, because that also protects the judges.

In a system where judges are going to be dealing with Crown court cases—we will come on later to complex cases and fraud cases, where they are going to be spending months and months on cases—the judges are going to have to write very long decisions. This is not similar to a district judge in a magistrates court, where the average trial takes maybe half a day or a day, two or three at the most. That is normally the limit.

In the Crown court, the average trial date is two to three days or five days to a week. The judge is going to be writing up all that evidence; because he or she will have to make the decision at the end on innocence or guilt, they have to pencil their decision in a very detailed way, covering not just the law, but an assessment of each witness who gave evidence—for example, “I accept the evidence of that witness because of this, this and this; I don’t accept the evidence of that witness because of this, this and this; this witness is unreliable because of this, this and this.”

All of that will have to be included; if it is not, the defendant who is found guilty will want to appeal, and so the judge is going to spend ages writing decisions.

Courts and Tribunals Bill (Sixth sitting)

Kieran Mullan Excerpts

Thursday 16th April 2026 Public Bill Committees

[Yasmin Qureshi]

It is a pleasure to serve under your chairmanship, Ms Jardine.

Amendment 25 relates to the retrospective allocation of cases to the Crown court bench division. I am asking that provisions for the allocation for trial without jury do not apply when election has already happened. The point is that in all jurisprudence in the world, retrospective legislation is bad law and bad jurisprudence, going against the rules of natural justice. Why? Because there is a breach of legal certainty.

A core principle of the rule of law is that an individual should know the legal consequences of their actions. People also have a legitimate expectation of the procedural framework in place at the time of the commission of an offence. Retrospective allocation rules disrupt that expectation and weaken trust in our justice system. It is a selective tightening of procedures by the state, which risks an abuse of legislative power and an inconsistency.

Article 7 of the European convention on human rights argues against retrospective criminal law penalties. While it is correct that with this clause we are not talking about retrospective criminal penalty, I would say that article 7 is being breached, because even if penalties are not increased, legitimate expectations are being undermined. The defence and legal representatives prepare cases based on existing court structures, and on known procedures and practices. Suddenly to set new procedural rules and different evidential expectation is just not cricket.

The state is being given an advantage, because there should be an equality of arms. Administrative convenience should not override fundamental rights. The courts have repeatedly stressed that fairness is more important than efficiency, because it generates among people confidence in the state and in the criminal justice system. That is why—I repeat—our judicial system is recognised to be one of the best in the world.

[Dr Kieran Mullan (Bexhill and Battle) (Con)]

It is a pleasure to serve under your chairmanship, Ms Jardine. I rise to speak in support of amendment 43, tabled in my name, and to amendments 25 and 12. Again, on this issue the Opposition and the hon. Member for Bolton South and Walkden have alighted on the same challenge or issue—the same thing we think is unfair. We have gone about our amendments in different ways, but we recognise the same issue. As we heard, the amendments address the retrospectivity built into the Government’s approach.

The Bill makes it clear that the new allocation regime will apply not only to future cases, but to existing Crown court cases that are due to begin on or after the specified day on which the measures are implemented. In other words, cases that are already in the system, in which defendants may have made decisions on the basis that they expect a jury trial, could be reallocated to a judge-only trial. Our amendment 43 would prevent that by ensuring that the new regime applies only to cases in which the first magistrates court hearing takes place after the change, and not to cases already in the pipeline.

The Government say the change is merely procedural and can therefore be applied to ongoing cases, but that understates what is happening. To change the allocation part-way through proceedings would not simply be technical; it would alter the ground beneath the defendant’s feet. In written evidence, JUSTICE shared our concerns, saying:

“The retrospective application of the provisions is contrary to the rule of law.”

It pointed to the House of Lords Constitution Committee’s legislative standards, which state:

“Retrospective legislation is unacceptable other than in very exceptional circumstances”

and

“must have the strongest possible justification”.

It is worth considering that legislative guidance, which states, first, that enacting legislation with retrospective effect should be avoided. Secondly, provisions that have retrospective effect should be drafted as narrowly as possible. Thirdly, individuals should not be punished or penalised for contravening what was, at the time, a valid legal requirement. Fourthly, laws should not retrospectively interfere with obligations when the liberty or criminal liability of the citizen is at stake. Fifthly, laws should not deprive someone of the benefit of a judgment already obtained. Sixthly, laws should not prevent a court from deciding pending litigation according to its merits on the basis of the law in force at the time when proceedings were commenced. Seventhly, retrospective legislation should be used only when there is a compelling reason to do so. Eighthly, a legislative power to make a provision that has retrospective effect should be justified on the basis of necessity and not desirability.

Having heard those points, we can immediately see the issues. On the principle that laws should not retrospectively interfere with obligations when the liberty or criminal liability of the citizen is at stake, it is clear that that liberty is absolutely at stake in these matters.

On necessity, we have repeated throughout the debate that the Government, in our eyes, have completely failed to make the case successfully that the measures in the Bill are the only way to drive down the backlogs. This morning, we debated the fall in backlogs in some areas seen in the latest published data; that happened without the measures in the Bill, and without other measures that we all think are necessary to help to drive down the backlogs. To our eyes, the retrospective element clearly does not meet the test of exceptional circumstances or necessity.

JUSTICE says that, given that the curtailment of jury trials will have a marginal effect on the backlog, it cannot see how retrospective applications can be justified, and I agree. It argues that it is deeply unfair for defendants who elected for a Crown court trial in expectation of a jury to have their cases heard by a judge alone under a process that did not even exist when they made that choice. Defendants who have opted for a jury trial may be incarcerated on remand awaiting trial by jury. Had they known that this would never materialise, they may well have opted for a magistrates trial and already been released.

There is, then, a risk that the reallocation of cases that are already in the Crown court caseload to the bench division will be subjected to judicial review. There is clearly no ouster clause in the provisions. How do we know whether many of those affected might decide that they should challenge the decision in the courts? JUSTICE suggests that it could happen with each and every case in the backlog that is allocated to trial without jury. This would require additional hearings and the preparation of representatives for every affected case already in the backlog, creating further delays and placing unnecessary burdens on the defendants and the prosecution who, as we have all accepted, are already under significant pressure.

What did the Prime Minister say about retrospective measures? We have already covered what the Prime Minister previously thought about the importance of jury trials, which he seems to have forgotten, but what did he say about retrospective measures? He said that

“they are usually a very bad idea”.

That is a direct quote from our Prime Minister. He said they were usually a very bad idea, yet here is his own Government enacting one.

Of course, we know what the Deputy Prime Minister thought about this issue. He appeared before the Justice Committee on Tuesday 16 December last year. He was asked about this issue by my hon. Friend the Member for Solihull West and Shirley (Dr Shastri-Hurst), who said:

“There are currently in the region of 17,500 prisoners on remand in this country. Will these reforms apply retrospectively?”

What did the Deputy Prime Minister say? He said: “No.” The Committee must have to assume that that was his view of the right thing to do at the time. Why else would he have said no? It is reasonable for us to ask the Minister to explain why the Deputy Prime Minister has changed his mind.

Of course, the Minister herself has already been asked about this in the Justice Committee. My hon. Friend the Member for Bridgwater (Sir Ashley Fox) pointed out that a defendant committed to trial in the Crown court will expect a jury trial. He said,

“you will relook at cases that have been committed for trial at the Crown court and push some of them through the swift court—that is what you are telling me.”

The Minister replied:

“I think that is something we have to look at.”

My hon. Friend the Member for Bridgwater said to her:

“So when the Lord Chancellor said it will not be retrospective, that was not a wholly accurate answer.”

The Minister replied:

“I think the answer he was giving was in the context of a question around the impact on remand hearings; I think that was the context in which he may have addressed that.”

My hon. Friend replied:

“No, he said the changes would not be retrospective, and now you are giving me a slightly different answer. If someone elects to go to the Crown court at the moment, it is on the assumption that there will be a trial by jury. What you are saying is that it might not be; they might be diverted to the swift court.”

The Minister agreed with that, saying: “That is right, yes.” That can be interpreted only as a suggestion that there was no difference with or without a jury as they are still in the Crown court—an extraordinary response.

My hon. Friend the Member for Bridgwater said:

“Minister, if you have been committed to trial in the Crown court at the moment, you are expecting to have a jury trial, and what you are telling me is that once these changes take effect, you will divert those people committed but whose trial has not started into the swift court.”

The Minister agreed, saying: “Yes”. My hon. Friend said to her:

“That is not what the Lord Chancellor said before Christmas.”

The exchange concluded with the Minister making this point:

“It is a change in relation to the procedure that applies to those cases. They are still getting a Crown court trial under the new proposals.”

We are back to an argument that we have revisited a number of times. When the Minister is pressed on a disadvantage in one form or another of having a trial without a jury, she insists that it does not make much of a difference as they will still get a trial that, in her view, has all the merits of a trial with a jury, to some extent. We made some progress on that earlier today, when the Minister acknowledged that there is something special about a jury trial. If there is something special about it, she must surely accept that those people who do not get one are missing something special and are therefore in some way disadvantaged.

JUSTICE is not alone in its criticism of the retrospective element of the proposals. As I have said previously, Mr Robertson, the founder of the chambers that the Prime Minister, the Deputy Prime Minister and the Attorney General all practised at—someone they surely give some weight and credibility to—is critical about this. He writes:

“Those charged by police with offences currently carrying a right to elect a jury trial will go through newly devised ‘allocation proceedings’ where they will lose that right if it appears to the court to be more suitable to have a non-jury trial or if it appears to the court that the value of the property involved exceeds a sum to be set by the government.”

By that, I think he means in relation to the severity of the case.

Mr Robertson goes on:

“This means, for all 80,000 cases in the backlog, more time—days perhaps—will have to be set aside for novel pre-trial proceedings featuring arguments about suitability and value of stolen property. There will be legal challenges to the government’s proposal that such legislation should apply to defendants who have already been charged or are awaiting trial. Applying these changes retrospectively amounts to a fundamental injustice, undermining legal certainty and the long-standing principle that individuals should be tried according to the rules in place at the time of the alleged offence.”

He is right, is he not?

Mr Robertson is not alone. The Bar Council says:

“The application of this proposal retrospectively inevitably will face a constitutional challenge. The Criminal Bar Association estimates that up to 30,000 cases will be affected. Not only is this extraordinarily unfair to those who have already elected the Crown Court, understanding that it is a jury trial, it interferes with legal certainty and runs the risk of tying the courts up in appeals, further increasing the backlogs.”

I hope that the Minister can reflect, as always, on those clear views, as well as the views of thousands of other legal professionals, academics and former judges, that provisions in the Bill are not necessary to bring the backlog down, and therefore should not be enacted retrospectively. They are fundamentally unfair, unconstitutional and against the usual practices of this place when it comes to retrospective legislation. I hope the Minister will support our amendment to make sure that the measures are not applied retrospectively.

[Jess Brown-Fuller (Chichester) (LD)]

Although I have proposed the removal of clause 3 in its entirety—we will come to the arguments for that later in proceedings—I will speak to amendment 12, tabled in my name, which seeks to remove subsections (2) to (4) of the clause. Those subsections provide that cases can be assigned to be heard by a judge alone, even if the case has already been assigned to be heard in front of a jury.

--- Later in debate ---

[Joe Robertson]

I do. Perhaps I could encourage a Tea Room conversation between the hon. Members for Gloucester and for Bolton South and Walkden, in the hope that her wisdom might rub off on her hon. Friend when it comes to pitching this as a contest between victim and defendant.

Of course, on a technical point, it is not the victim or complainant who brings the case; it is the Crown—the state. Yes, there is a victim who must see justice, but in criminal law, the offence is seen as a crime against the state. In countries where there is not a monarchy, it is the people versus the defendant, because the defendant’s crime is an affront to the people. We have a monarchy in this country, and we know it is the Crown against the defendant.

[Dr Mullan]

Further to the intervention from the hon. Member for Bolton South and Walkden, it might be helpful to remind the Committee of the letter written by dozens of organisations representing women and girls. I was very clear that that letter actually represented women and girls as victims, but it absolutely makes the hon. Lady’s point about the criminalisation that is sometimes attached to women and girls as a result of coercion and other circumstances that they might go through, so they have an interest in ensuring that they have access to a fair trial. As she said, the division between the two is not as black and white as some Government Members seem to want to make it.

[Joe Robertson]

Yes. Let us get back to principles here. I support what the Government are trying to do in reducing the backlog. Of course, that is the right thing to do, and it benefits both those awaiting trial and the victims and complaints who want to see justice.

On amendment 25, my particular issue here the retrospective application of the law. Even if Members agree with the Government that either-way offences should go and that people who commit or are accused of committing a crime in the future should no longer have the right that people used to, the clause will apply that new law to things that have already happened. That is highly controversial and an affront to the common law legal system in this country.

--- Later in debate ---

[Joe Robertson]

I continue to be grateful to the hon. Member for hanging on my every word, and I am grateful for the opportunity to expand on that. As I said, it is a basic tenet of English common law, and the ECHR effectively replicates what is already in our legal system. I am very happy to engage in a wide-ranging debate on the ECHR, but I fear that you, Ms Jardine, are also hanging on my every word and may stop me.

[Dr Mullan]

I absolutely think that we should leave the ECHR, because I do not like the mechanism that it operates under, but I absolutely support some of the rights and protections in principle that it advocates. I am struggling to see why there is a contradiction. There are lots of times when we might support elements of proposals without supporting the manner in which they are handed down.

[Joe Robertson]

Again, I invite a Tea Room conversation —although we may have to meet somewhere geographically in the middle of the Tea Room.

Any measure that materially and detrimentally alters the regime to which a defendant is subject in a way not foreseeable at the relevant time engages article 7. The Government’s own ECHR memorandum on the Crime and Policing Bill of April this year acknowledged that article 7 is engaged where the defendant could not “reasonably have foreseen” the application of a measure “at the material time”. At least we can agree that article 7 is at least engaged. A defendant who elected Crown court trial under the existing law could not have foreseen that that election would be nullified, not least of all because some such defendants have been waiting rather a long time—and that is the issue this Government are trying to deal with. I say again that I support what they are trying to do, although I disagree with some of the means they are using to achieve those aims. This is precisely the kind of unforeseeable retrospective detriment that article 7 exists to prevent.

While we are on the ECHR, I turn to paragraph 2 of article 6, on the right to a fair trial, and pending proceedings. Paragraph 1 guarantees the right to a “fair and public hearing” before an “independent and impartial tribunal”. The European Court has repeatedly held that the principle of the rule of law and the notion of a fair trial preclude any interference by the legislature—that is, Parliament—other than on “compelling grounds of the general interest”, with the administration of justice designed to influence the judicial determination of a dispute. This principle was established in a number of cases and applied domestically in Reilly (No. 2), 2014.

Where a defendant has an existing elected case in train, the application to them of the new clause 3 regime is precisely the form of retrospective interference with pending proceedings that article 6 prohibits. The Government must demonstrate compelling grounds of the general interest. Processing efficiency—the rationale advanced for these reforms—does not satisfy that threshold, in my view. I say again that we are talking about cases that are already in proceedings.

The Government’s own Criminal Procedure Rules 2025 identify, as part of the overriding objective, the recognition of the rights of a defendant, particularly those under article 6 of the European convention on human rights. Retrospective removal of the elected mode of trial is directly at odds with the overriding objective that the Government have enshrined in their own procedure rules.

I turn to the more recent Reilly litigation that went on between 2013 and 2015, because, although this is a historic principle, it is one that has been repeatedly upheld. The R (on the application of Reilly) v. Secretary of State for Work and Pensions litigation provides, in my view, the closest and most instructive domestic parallel.

In 2013, Parliament fast-tracked the Jobseekers (Back to Work Schemes) Act 2013 to retrospectively validate regulations that the Court of Appeal had already found to be unlawful. The Act was introduced before the Supreme Court appeal was complete. That is a direct analogy to the present situation, in which the Bill would alter the mode of trial for defendants who are already part-way through criminal proceedings.

In Reilly (No. 2), Mrs Justice Lang held that the 2013 Act was incompatible with article 6(1) of the ECHR, in that it had interfered with—

--- Later in debate ---

[Joe Robertson]

I think it is for the Government to set out the state of emergency. I do not accept that there is one; in fact, I do not think the Government are saying that there is one, when it comes to taking away a right that someone has already elected. We are not talking about getting rid of jury trials for a trial for either-way offences. I disagree with that; we have dealt with that, and we will go back to it. In this clause, we are talking about applying that to a number of people who have already made an election. It is for the Government to set out the emergency. I do not believe that there is one, and I think that they have not set it out because they do not believe that there is one.

[Dr Mullan]

As I pointed out, at some point in these proceedings, even the Justice Secretary did not think it necessary. When he was considering these matters, the Justice Secretary agreed that it was perfectly reasonable for it not to be retrospective. We are actually making an argument with which, at one point, the Justice Secretary agreed.

[Joe Robertson]

The shadow Minister is absolutely right. I invite the Minister to address that point head on in her speech. Even the Government themselves do not seem to be saying it is an emergency, whereas when any previous Government, Conservative or Labour, have tried to enact something retrospectively, they have at least made the case for an emergency. Heinous crimes committed during a war, loopholes that have left the state open to repeat, ongoing litigation into perpetuity—those are the sorts of threshold that have been met in previous times.

I hope that that goes some way to answering the question asked by the hon. Member for Gloucester. Let us hear from the Government why retrospective application in this case is so urgent. The answer cannot be about future cases; it must only be about those who have already elected trial.

I draw attention to a post on the UK Constitutional Law Association blog in July last year, which addresses and objects to the idea of using the Crown court backlog crisis to justify this provision. It is not an adequate justification that it is equivalent to wartime. Jury trials were not suspended even in the first world war, the second world war or the covid pandemic, all of which produced a more acute systemic issue than the one we have today. The present difficulties, however real they are—and I say again that they are real—do not plainly reach that threshold.

The Government’s own stated policy is that they must balance conflicting public interests and consider whether the general public interest in the law not being changed retrospectively may be outweighed by any competing public interest with regard to ECHR. The Solicitor General’s answer to a parliamentary question set that out explicitly. For the sake of brevity, I will not repeat that answer. However, whatever views are taken about that balancing exercise, there appears to have been no such exercise on which to take a view. It is apparent in the Bill’s explanatory notes. No compelling justification for retrospectivity is advanced. It should be in the notes, and it should have been done already, but at least the Minister can address it now.

This has not been a case of closing an unforeseeable loophole. It is not an emergency requiring same-day legislation. It is not a response to a systemic injustice in wartime. It is a policy reform that operates perfectly well on a prospective basis if that is what the Government want to do, although I do not agree with abolishing jury trials. But the retrospective reach of clause 3 appears—I hope—to be inadvertent. The amendments would correct it.

The Government’s reform agenda could be delivered even if the amendments are made. Future cases would be fully captured by the new regime applied prospectively. Where defendants have already elected—and there will be relatively few of those over the lifetime of this law, compared with all the crimes that it will capture in future—their cases can be resolved under the existing system. It raises the question of what happens when we take a number of cases and put them straight into the magistrates courts now, rather than allowing the natural wasting away of the election to trial by jury for those who face what, today, are either-way offences.

The cost of honouring the amendments is minimal, even to the Government. The cost of not honouring them is significant. I will not repeat the arguments that I have already made. In my view, the Committee should support amendments 25, 12 and 43. They are constitutionally proper and correct, legally secure and practically proportionate. The Government have offered no principled justification for the retrospective application of clause 3. In the absence of such justification, the presumption against retrospectivity must surely prevail. The Government can still achieve the aims of the Bill, no matter how much I disagree with a number of them.

--- Later in debate ---

[Dr Mullan]

I beg to move amendment 40, in clause 3, page 5, line 38, at end insert—

“(7) Where a court has determined in accordance with this section that a trial is to be conducted without a jury, the defendant may appeal that decision if he can demonstrate that the circumstances of their case are such that trial without a jury would amount to a breach of the principles of natural justice.

(8) An appeal made under subsection (7), must not be heard by the same judge who made the original determination.”

This amendment would allow a defendant to appeal the decision to have a judge-only trial on the basis that it is in the interests of natural justice for the trial to be with a jury.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 18, in clause 3, page 9, line 17, leave out “no” and insert “a”.

This amendment entitles a defendant to appeal against a judge’s decision to allocate the case for trial by judge alone.

Amendment 28, in clause 3, page 9, line 20, after “hearing” insert—

“only if the prosecution and defence have waived their right to the hearing”.

[Dr Mullan]

I rise to speak in support of amendment 40 in my name and to consider other related amendments. At this point, we are considering in more detail the allocation decisions, how they work in practice and the likely legal risks and pitfalls inherent in the new process.

I will begin by laying out the process that will exist. The Bill will introduce a Crown court bench division where cases are tried by a judge alone. To ensure that jury trials remain in place for certain crimes, only triable either-way cases that are assessed as likely to receive a custodial sentence of three years or less will be allocated for trial in a bench division. Indictable-only offences cannot be tried there.

To determine whether a triable either-way case should be allocated for trial in a Crown court bench division, a Crown court judge will assess whether the offence or offences to be tried are likely to attract a custodial sentence of three years or less. That decision will be taken at the first opportunity for the defendant to enter a plea in the Crown court using a plea and trial preparation hearing. If cases involve multiple defendants, judges must assess eligibility based on the highest likely sentence of any one defendant. Offences to which defendants have pled guilty are not included in the assessment of a likely sentence, and youth defendants are not exempt from the bench division.

The bench division will operate as a lower tier in the existing Crown court—that is important. The Bill will not create a separate jurisdiction or intermediate court. The usual Crown court procedures will apply in the bench division, including the appeal route from the Crown court to the Court of Appeal. Judges sitting in the bench division will also retain the full sentencing powers of the Crown court and may impose sentences of more than three years where appropriate, even if the allocation was initially based on the likelihood that they would not do that.

The Bill and explanatory notes are clear that no new appeal route is created for decisions to allocate a case to the bench division. It is important to set out the distinctions between different types of allocation decisions both now and in the future, if these proposals are passed. There are some elements of allocation decisions at present that we would all agree are not subjective, but based on offence classifications. I may be wrong, but I do not imagine there remains much debate about allocation decisions in those scenarios. Summary and indictable-only offences will be heard in the magistrates court or the Crown court based on that classification, though there are some exceptions that I will ask the Minister to clarify later.

Under the Government’s proposed reforms, there are similar black and white scenarios, with summary-only remaining with the magistrates and indictable-only going before a judge and jury. However, we will continue to have decisions on either-way offences, which consider the subjective—the not black and white—consideration of what the likely sentence length is. The consequences for defendants are entirely new territory for criminal defendants for the offences concerned.

Of course, defendants may disagree with allocation decisions at present, and may want to stay in the magistrates court, but the court may decide that they must be heard in the Crown court. However, importantly, as I understand it, a defendant cannot actually legally challenge that decision through judicial review. I am not a legal expert, and if the Minister receives advice that that is wrong, I would welcome that clarification, but as I said, my understanding is that judicial review would not be possible in that scenario. I also understand that it would not be the case in relation to the Crown court where the allocation would take place. Importantly, as I pointed out at the start, this will be taken in the Crown court, not some new or different court, so we should read across the rights and procedures that already exist in the Crown court.

As I understand it, triable either-way offences, if heard in the Crown court, are then in legal terms considered to be a trial on indictment. If a triable either-way offence is tried in the Crown court, it becomes a trial on indictment as if it were an indictable offence as per the other offences that are always indictable. Again, I am happy for the Minister to say whether that is the case, but that is my understanding of it.

Why is it important? Because there are constraints on the use of judicial review in relation to a Crown court trial on indictment. Under sections 28 and 29(3) of the Senior Courts Act 1981, no appeal by way of case stated or judicial review is possible in respect of matters relating to trial on indictment, so it will not be available with regard to any decision relating to the conduct of a Crown court trial on indictment. These measures, in this important way, are specifically taking away an existing legal right: the right to challenge an allocation decision. That cannot be right, fair or reasonable, and I am not even confident, as it is not mentioned, that I have seen in any of the Government publications related to this that it is something the Government have recognised they are doing.

It is also potentially a mistake in another way: in relation to the efficiency and smooth running of the courts that the Minister is seeking to achieve. At conviction, the defendant can apply for leave to appeal in the Crown court. At that stage, is the proposal that the defendant will be prevented from appealing the allocation by the judge, so a defendant might argue that a judge could act unlawfully on allocation with no appeal safeguard?

I have not had my attention drawn to an ouster clause. More generally, there is the provision that there is no specific appeal to the decision in isolation, but not an ouster clause in terms of the appeals that are allowed in the Crown court. I am confident that there will be legal arguments about that, at least to start with, until common law settles the matter. It would be extraordinary for the Government to introduce such a clause. We might find examples where a judge in the Crown court has completely incorrectly and legally unjustifiably allocated a case, and when that is brought up as part of the appeal at the point of conviction, be told that that is not a matter on which the court can have an opinion. I think that would be extraordinary.

Does the Minister think it would be right, if it forms the basis of an appeal against allocation happening after conviction, for the Court of Appeal to be constrained from having the power to return the case for trial by jury if it agrees the allocation decision was unlawful? I cannot believe that she would think that was right. Therefore, we create the exact opposite effect of what we are seeking to do—to make the best possible use of Crown court time—particularly in relation to barristers and other people working across the courts, by not allowing an earlier appeal. That is with regard to both appeals that take place and, more importantly, where a whole new trial may have to be ordered before a jury because it is found that the initial allocation decision was wrong.

Consider the scale on which that may happen—hundreds of cases may suddenly have to be retried. If, for example, the measures are in place for seven, eight or nine months, there is no onus or expectation regarding at what point a defendant—a convicted criminal at that point—might seek legal advice and then successfully choose to challenge an allocation decision. That would then be heard by a court, and then that court of appeal will make a ruling as to whether the circumstances under which that person was allocated were unlawful and a retrial with a jury is required.

If any other case has been allocated under those same circumstances that the appeal court determines are unlawful, every single one of those who had been convicted would have the right to say that the precedent has been set that the way they were allocated was unlawful and has to be retried. That could happen six months, a year or two years in. We are talking about a huge potential reallocation and retrial of all cases if the Minister insists that there should not be an appeal on the right of the allocation decision.

A separate initial safeguard—an appeal against allocation at the stage that it happens—is not only the right thing to do to ensure that an existing right is not eroded, but the more efficient way to approach these things. The amendment is sensible, rational and will provide greater confidence in the new court that the Minister is insisting on creating, and its processes.

I ask the Minister to clarify an important matter of law in relation to the allocation decisions in the first place—just the sort of thing that might be appealed if it is not clarified by the Minister during the passage of the Bill or through amendments to the legislation. We are clear about the idea of summary offences that go to the magistrates court. Indictable-only offences will have a trial with a judge and jury. In a number of cases, however, the offence is triable either way, but provisions that this House has introduced mean that in particular circumstances it can be tried only on indictment.

Some examples of that are three-strikes class-A drug trafficking offences, three-strikes dwelling burglary offences, dwelling burglaries involving violence or threats of violence, and the minimum mandatory sentences for firearms offences. Those were decisions taken by Parliament to say that, while the offence more generally could be tried either way, these cases in those circumstances are too serious to be heard by a magistrates court; they must be heard by a judge and a jury.

What are the consequences of the Bill on those scenarios? Will the Government respect the will of Parliament in relation to considering those cases to be more serious, as the Government accept for those cases that retain a jury trial, and that they should therefore remain with a jury trial? It is important that we have clarity on this issue specifically because, as I said, it is something that would almost certainly be subject to appeal if clarity is not provided.

I finish by reiterating the point that, if the Government refuse to accept our amendment, they will be actively legislating away a right to appeal allocation decisions that currently exists in our system. They will be actively choosing to do that if they are unable to insert a similar right through other means, such as through our amendment or an amendment at a future stage. I think it is important that the Committee reflects on that, and I hope the Minister can agree.

[Jess Brown-Fuller]

I will speak to amendment 18, tabled in my name, which seeks to ensure that a defendant has the right to appeal against a judge’s decision to allocate a case for trial by judge alone, whether because of the likely sentence length or because the case is assessed to be complex or lengthy. I will also be supporting amendment 40, tabled in the name of the shadow Minister, and amendment 28, tabled in the name of the hon. Member for Bolton South and Walkden.

As stated, triable either-way offences, with potential sentences of up to three years, could be tried in the new Crown court bench division swift court. I argue that cases where a defendant may receive a sentence of up to three years are not minor offences; we are talking about life-changing sentences. Often in this category, we are talking about possession with intent to supply, actual bodily harm, death by careless driving, or section 20 unlawful wounding or grievous bodily harm, including where there is a grave injury. We must safeguard those sorts of cases against rough justice—an issue that much of the legal profession has warned could arise. It is vital that the Government provide an appeal system against decisions on whether to allocate a case for trial in front of a judge or jury.

I would like some clarification from the Minister: when we talk about summary offences, indictable offences and then triable either-way offences, are the measures being introduced in this Bill removing the concept of triable either-way offences? Are we then moving all those categories of offences into what are described as summary offences—these offences that carry long, life-changing sentences?

Briefly, amendment 28 would add a procedural requirement, but it is an important one because it would mean that the court could not simply decide, on the papers, to move a case to a judge-only trial; both parties would have to have first been given the opportunity to argue the point at a hearing, and only if both sides expressly gave up that right could the court proceed without one.

That goes back to the point that I raised earlier about the Canadian model, which I know the Government have been exploring and have spent time in Canada looking at. There, people have the right to elect a judge-only trial, so there is still an element of choosing what that looks like. That is not what this Government are proposing; they are proposing that there be no choice in the system, and that there be no legal precedent for it. I would appreciate the Minister’s answer to that.

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[Rebecca Paul]

That is not the case. The hon. Lady has just set out that it is about setting out the worst possible cases with respect to the sentence—so they absolutely could do that. It is exactly what will happen. They will always be looking to achieve the best for their client—particularly if their client is not guilty. Let us remember that we are talking about some people who will not be guilty.

Again, they know that if they have done a social media post—and we have seen that people have gone to prison for these things—they are much more likely to not go to prison if they end up in front of a jury. However, if they end up in front of a judge—my goodness me—there is a much higher chance that they will go to prison.

[Dr Mullan]

As I said at the outset, there is a fundamental safeguard of people being able to have a judicial review of the allocation decision. It is all well and good for the hon. Member for Amber Valley to talk about the scenarios where it sails plainly, everyone is in agreement and it is all good. However, if it did not, at the moment, a defendant has a right to a judicial review of the decision to allocate. If these proposals go through, they will lose that right and have no ability to question legally the decision to allocate—even if it was a factual error of the law. We are not even talking about a subjective element. Let us say that the judge just gets it completely wrong, misunderstands the facts presented to them and allocates incorrectly. At the moment with magistrates that person could go straight to judicial review and the case does not proceed as was intended. However, we would now lose that right.

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[Dr Mullan]

I hope the Minister will go on to clarify whether it is actually subject to judicial review.

[Sarah Sackman]

There is no specific ability to appeal, but of course, a decision in relation to mode of trial could be subject to judicial review. Those familiar with the judicial review process know that that is a high bar. We are talking about public law grounds of vires—whether it is within the scope of the statute—and rationality. It is a high bar, but there is no unique route of appeal. That is in order to promote procedural finality and to avoid delay when we are talking about the allocation decision itself.

I reiterate that several important safeguards are in place to ensure fairness and transparency. Both parties will be able to make representations on mode of trial decisions, and judges will give reasons for their decisions. Of course, the wider system of appeal—that is, to the substantive determination on a verdict and, indeed, on sentencing—remains in place.

[Dr Mullan]

I think the Minister would accept that it is a high bar, but also that it is sometimes successfully crossed. Allocations are sometimes successfully challenged, which demonstrates just how important this provision is. If it is there and is used when things have gone so significantly wrong as to meet that high bar, it is vital that the same test is available in extreme scenarios, but it will not be available in relation to allocation by the Crown court.

[Sarah Sackman]

I think I have been as clear as I can be. If a mode-of-trial decision is so out of order or unlawful that it is challengeable by way of judicial review, it can be challenged in that way.

[Dr Mullan]

This is very important. I have read the legislation to the Minister, and highlighted the point that a non-conviction element of the Crown court proceedings cannot be taken to judicial review. The Minister should either say that I am wrong about that and that something like an allocation decision in the Crown court can be judicially reviewed, or that I am right and that what she has just said means there should be something that is not there. The whole Committee needs to know whether I am correct in saying—I believe I am—that that sort of hearing from a Crown court cannot be judicially reviewed.

[Sarah Sackman]

My understanding, and I will happily correct the record if I am wrong, is that there is no bar to judicial review in that context. However, there is not a specific route of appeal, which is what amendment 40 seeks to allow. To reiterate, several important safeguards are in place to ensure fairness and transparency.

[Dr Mullan]

Will the Minister give way on that point?

[Sarah Sackman]

I am going to make some progress.

Both parties will be able to make representations as I have said. We also recognise that cases can and do evolve as they progress through the courts and a number of examples were raised. Clause 3 makes clear provision for cases to be reallocated between the bench division and jury trial where the seriousness changes. That process is set out specifically in the legislation, and for that reason I urge the hon. Member for Bexhill and Battle to withdraw the amendment.

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[Sarah Sackman]

Of course nobody is infallible in this process, and mistakes are made. But I caution that there is a distinction between taking a decision that is totally outwith the legal authority the statute provides the decision maker with and an indicative assessment of likely sentence, which turns out not to be the precise result that we end up with. That does not invalidate the initial assessment or necessarily mean it is mistaken based on the representations that were before the judge at that time. We therefore think that introducing a specific route of appeal to the allocation decision—I am not talking about appeals to the ultimate verdict —introduces a needless interlocutory stage that will only add to delay, in a system where we are trying to bring them down.

[Dr Mullan]

Will the Minister give way on that point?

[Sarah Sackman]

I am going to make some progress.

Amendment 18 would introduce a new right to appeal allocation or reallocation determinations made under proposed new sections 74A and 74B. The Government do not consider that necessary or appropriate. As I said, mode-of-trial decisions of this kind are procedural case management decisions. They are intended to ensure that cases are tried efficiently and fairly and managed proportionately. As a general rule, such decisions are not subject to a unique route of appeal.

--- Later in debate ---

Appeals in the Crown court will otherwise remain unchanged, and introducing a separate right to appeal against a mode-of-trial decision would, as I said, add an additional procedural layer, increasing the risk of delay and uncertainty in exactly the types of complex cases where timely resolution is most critical. That is further delay that the system cannot afford.

[Dr Mullan]

Just so we are really clear, I have met Supreme Court judges and they tell me that they go back through discussions and debates about legislation to understand the intent or will of Parliament. The Minister said there will not be a separate route of appeal and referred to existing and ordinary rights to appeal. Does she therefore think that it is the will of Parliament that people at the point of conviction should be able to raise questions of allocation, or that judges at the point of conviction should not consider questions of incorrect allocation?

[Sarah Sackman]

I am not quite sure, in that hypothetical, where those arguments would take us. As I said, the allocation—whatever the constitution of the Crown court, it is still the Crown court—guarantees a fair trial. So I am not sure what this proposal does in that context to underline the fairness of what has been determined.

What I would say to the hon. Member for Reigate is that the intention here is that this process is neither new nor complex. As others have said, it broadly mirrors the allocation exercise in the magistrates court, which already requires a balanced assessment of the case, including matters properly advanced by the defence. The hon. Lady is absolutely right that the judge at the PTPH stage in the Crown court will hear the prosecution’s summary of the alleged facts and apply the relevant defence-specific sentencing guidelines to assess harm and culpability to determine in what category that places the case. When one examines the sentencing guidelines, although they are rich in detail, it is often pretty black and white as to whether someone is within the three-year territory or quite obviously above it in cases that are not themselves indictable-only. The judge will then consider any clear aggravating or mitigating features, which will allow the judge to determine where the case will likely fall within the sentencing category range. Inviting representations from the parties at PTPH is not an open-ended process, a mini-trial or a sentencing hearing. As I said, we are trying to give an indicative assessment of likely sentencing length, not what the actual sentencing length will be.

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[Dr Mullan]

We are now being asked to vote in a totally unsatisfactory situation when it comes to the facts of how this legislation will operate in two very important regards. I put it to the Committee that there will be an erosion of the right to judicially appeal an allocation decision that currently exists in respect of magistrates. The Minister said she thinks that that is wrong, but we will have to vote one way or the other on the basis that either the Minister is correct or I am correct. A Member said from a sedentary position—this is not a criticism of him—that the Minister will come and correct the record, but we will have already voted when the record is corrected. The Minister has given a view that there will be a right of appeal through judicial review to an allocation decision in the Crown court, and that is a fundamentally different scenario to one where someone does not have that right. However, we will be asked to vote on that today, without having absolute certainty, and we will perhaps be told afterwards, “Oh no, you don’t actually have that right.” I am not sure how Labour Members are comfortable or confident voting against a right that we are seeking to give people, without having absolute clarity about what the Minister has said and whether she is correct. It is extremely unsatisfactory for this Committee to be asked to vote on that matter without absolute clarity.

Secondly, similarly, the Minister did not clearly answer whether, as a consequence of that, people would be able to pick the issue up in an ordinary court of appeal. To another point raised by Opposition Members, the Minister said that we are not talking about errors in the law or where judges have clearly strayed outside of legislation. How does she know that? How does she know what future mistakes a judge might make? A judge may do exactly that, and allocate a decision completely and utterly incorrectly, outside of the law and what Parliament intended, and the Minister will not tell us whether that could be picked up in a court of appeal.

That, again, has important consequences, not just for the rights of the person who may be subject to that kind of egregious mistake in a legal proceeding without any route of recourse; it will also undermine the whole system if people are appealing and challenging these decisions and there is all this uncertainty.

[Mr Kohler]

I hate to break the consensus on the Opposition side, but I really do not see how we can say that judicial review is an appeal, and therefore why it is caught by this legislation at all. Judicial review is not an appeal of a decision; it is a review of a process. I do not think it is a concern.

[Dr Mullan]

As I said, our preference is for an appeal. The Government could say, “We are not going to add additional rights that do not exist; you do not get a right of appeal on allocation by a magistrate, but you do have a right to judicial review.” But the Minister cannot say with confidence that we do or do not have that. That is extraordinary.

[Sarah Sackman]

I did say that.

[Dr Mullan]

Sorry—with confidence. The Minister says she is happy to go away and double-check. She should know for certain whether people have a right to a judicial review of an allocation decision in the Crown court, as in the magistrates court. She should be able to tell us that with absolute certainty.

I have been the Parliamentary Private Secretary for a Minister, passing notes between officials and the Minister. That is why debates are structured in the way they are: earlier in the debate, someone raises a point of importance in their opening remarks, and that gives time to the Minister, working with their officials. I absolutely accept that the Minister will not always have things at the tips of their fingers, but that is why the officials are there, to liaise with the Department. I am not criticising the officials, but why have we not had a direct note so that the Minister can get up and say, clearly and confidently, with absolute certainty, that there is a right of appeal to a Crown court allocation decision?

[Siân Berry (Brighton Pavilion) (Green)]

I have to add my voice to the point that this is an unsatisfactory situation. We have heard time and again from the Minister that the decision about allocation will be made based only on the length of sentence, but in proposed new section 74C(7)(a) to (g) on reallocation—(g) allows for any other matters—there are many points that are quite subjective where decisions could be made on reallocation, and that could have a similar impact on someone’s life. I do not think we have all the answers we need about how this will work.

[Dr Mullan]

I absolutely agree. We will go on to discuss reallocation, and the hon. Member anticipates the points I was going to make. The reallocation decision is even more of a minefield, with all sorts of subjectivity and challengeable elements. I look forward to discussing that.

The PPS muttered earlier that I am patronising the Minister, but I think the Opposition are being patronised. We are being asked to vote on something where we have not had absolute clarity.

[Sarah Sackman]

I appreciate that the Opposition disagree with what we have decided to do in this legislation. There is no specific route of appeal to challenge the mode-of-trial allocation decision. If a defendant and their representatives consider it to be so egregious as to be unlawful, they can challenge that by way of JR, but I would suggest that that will be a very difficult threshold to reach and unlikely to get permission in the administrative court. The mode-of-trial allocation exercise involves an indicative assessment of likely sentence—a judgment on the basis of indicative factors—so establishing that the conclusion that has been reached is so irrational is unlikely.

I do not think I am being unclear. The hon. Member for Bexhill and Battle has heard it three times; he does not like it. I am doing my best.

[Dr Mullan]

Perhaps the Minister is sincerely—not deliberately—misunderstanding the point I make.

[Melanie Ward (Cowdenbeath and Kirkcaldy) (Lab)]

She is being very clear.

[Dr Mullan]

Does the PPS want to intervene? No, I did not think so.

As we have agreed, judicial review exists for an allocation decision by the magistrates. The Minister has quite rightly set out that that is a very high bar and is not a right of appeal. In that regard, the Minister is fair to say that our amendment is not directly comparable. I put it to the Minister, and I made this point earlier, that it would be the Crown court making an allocation decision. It is not allowed, as it is in a magistrates court, to use judicial review to challenge a decision made, like at the PTPH, on allocation. That is an incredibly important point that all Members must understand. If the Minister is going to say that people are not allowed a general right of appeal—we do not agree with that, but it is a legitimate argument—that is one thing. But if the Minister is saying that people are going to lose the high bar of challenge that exists at the magistrates court, that is incredibly important. We need to understand that because, as I have said, it is a high bar, but it exists for a reason.

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[Mr Kohler]

Although judicial review of a Crown court decision is limited, Crown court decisions that are not part of the trial by indictment can be reviewed. I am sure an allocation decision can be reviewed.

[Dr Mullan]

We went through this at the start. A triable either-way decision becomes a trial on indictment, but I have been told by a leading KC that in pre-trial hearings—the sort of matters we are considering today—people will not have that same right.

[Mr Kohler]

But aspects of a Crown court decision that are not the trial by indictment can be reviewed. Other aspects of decision making can be reviewed, so I cannot see why an allocation decision could not be reviewed.

[Dr Mullan]

Again, this is why the Minister needs to clearly articulate whether or not we can—[Interruption.] The hon. Member for Amber Valley is saying that the Minister said that we can. But what will the Minister do if we all vote tonight on the basis that the allocation decision can be judicially reviewed? The Minister is asking us not to have a view on it, not to consider it, but to vote on the question of appeal in relation to allocation decisions on the basis that she has told us that they can be judicially reviewed. Will the Minister think that that is in any way satisfactory if what she has told us proves wrong? I do not see how she could possibly think that that would be satisfactory.

[Alex McIntyre]

The Minister has been really clear in her response. This morning, the shadow Minister was extolling some intellectually coherent arguments that the Conservative party has now discovered. I wonder whether he might return to them for this afternoon’s session.

[Dr Mullan]

I think that wanting defendants to have the ability to challenge allocation decisions as they stand under a new court is pretty intellectually coherent. I am arguing that these are potentially significant, consequential decisions for defendants, and at the moment, as the Minister has explained, we all agree that there is a high bar for judicial review. I am not confident, and the Minister has not given me confidence, that the judicial review element absolutely exists.

The Minister has talked about appeal; she is right that there is no right of appeal for the allocation decision at the magistrates court, but there is a right to judicial review and I am not sure that there is in this clause. It is unsatisfactory that we may have to vote on it.

[Paulette Hamilton (Birmingham Erdington) (Lab)]

I am no expert, but I find this argument fascinating. What would it take to make the shadow Minister believe what the Minister is saying? I do not understand this subject, except for everything that I have read, but the Minister has been absolutely clear. What does the shadow Minister need to make it clear so that we can move on to another point?

[Dr Mullan]

If the Minister wants to intervene on me and say, “I am absolutely certain that there would be a right to judicially review the allocation decision by a Crown court,” I will be satisfied. I am asking for the Minister to stand up and say that she is absolutely certain.

[Sarah Sackman]

If, at a PTPH, a judge makes an error of law, that is amenable to judicial review. Full stop.

[Dr Mullan]

I welcome that clarity; it will be interesting to see what happens as a result of that. I take what the Minister has said in good faith, and assume that she would not say that unless she was certain.

That point is about the question of judicial review. The Opposition believe that there should be a right of appeal separate to that, for two reasons. First, it is fair to the individual, and, secondly, if we do not have an initial right to appeal, and these matters are then considered in appeal at point of conviction, we will create more issues, backlogs and legal uncertainty and defeat the point. Our amendment would make the system more, not less, streamlined. It would help the Government meet their objective, not hamper them. On that basis, I will push it to a vote.

Question put, That the amendment be made.

Division 5

Question accordingly negatived.

Ayes: 6

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Conservative: 3
Liberal Democrat: 2
Green Party: 1

Noes: 9

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Labour: 9

[Dr Mullan]

I beg to move amendment 41, in clause 3, page 5, line 38, at end insert—

“(7) Where a court has determined in accordance with this section that a trial is to be conducted without a jury, the defendant may request a different judge to preside over the trial than the judge who made the determination that the case was suitable to be tried without a jury.”

This amendment enables the defendant to request a different judge to try the case than the judge who determined that the case was eligible for trial without a jury.

The amendment draws into acute focus the challenges with public confidence and the risk of clouding judicial decision making that the proposals of a new judge-only court bench division will create.

It is important to set out the distinctions between different types of allocation decisions both now and in the future, if the proposals are passed. It is important to restate that we have summary-only cases based on the offence type rather than anything subjective, and then we have the indictable-only offences, again based on the offence type. In our previous debate on allocation, I pointed the Minister to grey cases, such as drug dealing and burglary offences, that are triable either way. At the moment, if it is about three of those offences, they have to go to the Crown court. I ask the Minister for clarity at some point about how they will operate.

Presently, we have what I sometimes call a clear and distinct separation of powers—a separation between those anticipating sentencing outcomes and those deciding sentencing outcomes, and a powerful safeguard for where that is not the case. Under the Bill, those lines will be blurred in a new and novel way, because the judge anticipating sentence length in the Crown court can then determine guilt and sentence length, and potentially issue a longer sentence of more than three years. That is important for the defendant and, in certain scenarios, for the victims and bereaved.

The hon. Member for Amber Valley, with her expertise, earlier described the fact that allocation and sentencing take place in the magistrates court, but importantly, the defendant can elect, and say no to their being involved in that process. They can say, “I want a jury trial; I want the judge who passes the sentence to be separate from the people involved in allocation.” Of course, the scenario is one in which a defendant is unlikely to have a reasonable claim of bias against their interests in relation to the sentence.

We discussed why someone may prefer a jury trial, even if the sentence might be higher. However, if we are talking about the defendant’s ultimate view about the judge, it is unlikely that someone in the magistrates court—if the case stays in the magistrates court—will say, “You chose to keep me here because of a shorter sentence, so I think you are biased in giving me a longer sentence.” They already have a positive disposition about the view of the sentencing.

More importantly, there are strict limits on the sentence length if a case stays in the magistrates court. It cannot go beyond what the initial judgment was. If the court decides, during or at the conclusion of the trial, that the sentence should be higher, it is up to someone else to pass that sentence. It goes to the Crown court for sentencing.

[Linsey Farnsworth]

It is true that the case has to go up to the Crown court, but it is not for the purposes that the hon. Member would like, as it were. It is because the magistrates’ maximum sentencing powers have been reached, and therefore they do not have the power, as opposed to it being preferable that the case go to somebody else.

[Dr Mullan]

That was not the point I was seeking to make, so I thank the hon. Lady for clarifying.

I sometimes wonder what victims think. Do they sometimes follow a case, hear the evidence and then think it should be getting more than the magistrates’ limits? Do they question whether the magistrates, who have a preliminary view about whether the case will hit a certain maximum at the outset, have come to the trial with some degree of bias about what outcome might be? Do they think the magistrates would therefore have some reluctance, even having heard the evidence in full, to pass a sentence that is beyond their powers and send the case up? Of course, magistrates do reallocate sentencing. As we have said, just because I feel there is a risk of a perception of bias does not mean I think we should scrap the whole lot and never let magistrates pass a sentence, but seeing that things are not perfect on balance does not mean that we accept them.

These proposals will add a degree of seriousness because of the potentially significant differences between possible sentence lengths. The sentencing guidelines for the offences are narrower than we will perhaps see with triable either-way cases, which have already been curtailed at a certain level of seriousness and might go up to an even greater level of seriousness.

If the clause passes unamended, the scenario could be as follows. A Crown court judge will receive an outline of the case, and make an initial judgment on the likely sentence outcome. They will decide, for a triable either-way offence, whether a sentence is likely to be more than three years. That same judge could then hear that case. That is the same judge whom a victim or bereaved family member could reasonably—perhaps not correctly, but reasonably—perceive on some level had already made a decision about the case, because of course they have: they have taken an initial view of the case and on what the outcome was likely to be. Importantly, that is not something that happens in any way shape or form with the jury trial system, where the two things are separate.

We all agree that perception as well as reality is important in our justice system. It is possible that some victims or bereaved family members might question whether the judge, who formed a view, is not best placed to then objectively and fairly decide what the actual sentence should be, if it should be longer than three years. They might even be concerned that passing a sentence of more than three years would suggest that they had got it wrong in their initial view. Again, we do not have to form a view about how likely or unlikely that is; we should form a view on what the perception of that will be. As politicians, we are very used to the concept that perception is important. Even if someone has not necessarily done something wrong, whether the public perceive that they might have done something wrong is important.

All that can be readily and simply avoided through our amendment, which would introduce a separation of powers, as I have described it. This is a modest and narrow amendment. It will provide a greater degree of confidence in the new system; even if the Minister is happy to proceed with the system, I am sure she would accept that it has generated questions and debates about rights and impartiality. This amendment is a very simple and modest way in which the Minister can minimise that. I know she wants maximum possible confidence in the new system, so I hope our amendment achieves that and that she can support it.

As we are still discussing allocations and who will or will not be allocated to different parts of the court, I would also be grateful if the Minister could provide clarity on triable either-way offences, such as drug dealing and burglary offences, where multiple versions go into the Crown court at the moment. What will happen to those cases in relation to allocation as part of the new division?

--- Later in debate ---

[Sarah Sackman]

Let me begin by making it absolutely clear that the deployment of judicial resource is properly a matter for the independent judiciary. Under proposed new sections 74A to 74D of the Senior Courts Act 1981, judge-alone trials will operate in the existing Crown courts and any judge of the Crown courts will be eligible to sit in the new division. Creating a statutory entitlement to require reassignment following a request of the kind outlined in the amendment would, in the Government’s view, encroach on that judicial responsibility.

Let me be clear that, like the hon. Member for Isle of Wight East, I am firmly of the view that our judiciary are among the best in the world. That is why the Government are prepared to put our faith in them to deliver this reform. They are best placed to determine how and where to deploy their resources.

The amendment implies that, to safeguard fairness and impartiality in our courts, different judges must preside over the allocation decision and the trial. Let me address that concern directly. There is no basis for suggesting that a judge who has made an allocation decision would be unable to approach a trial with full independence and objectivity. We have confidence in our judiciary, who are independent and highly trained, to do so. Judges receive training throughout their careers, including on structured decision making and the fair treatment of court users. They are accustomed to managing complex cases and to ensuring that trials are conducted fairly. That is their job.

What the Bill proposes is consistent with well-established practice. Across our systems in the civil courts, judges routinely make a range of procedural and case management decisions before trial without that depriving them of their impartiality at trial. The Government are committed to upholding the highest standards of justice, which is why we have ensured that the judiciary have the funding that they need to deliver the training and guidance required to support these reforms.

I reassure the Committee, the House at large and the public watching at home that every defendant in the Crown court will receive a fair trial, and that that is not affected by the mode of trial or by the particular judge presiding over the case. In the magistrates court, justices and district judges routinely make decisions about the admissibility of evidence, including bad character evidence, and other preliminary points of law and then go on to determine guilt without any loss of impartiality. In the Crown court, judges already deal with instances of contempt of court that they witness themselves, sometimes those directed at them personally, without being disqualified from continuing to try the case. That position was affirmed by the Court of Appeal only last year.

Requiring a different judge to preside over the trial would encroach on judicial independence and introduce unnecessary complexity and inefficiency to the system without any evidence that such a safeguard is needed. I urge the hon. Member to withdraw the amendment.

[Dr Mullan]

We are still no further forward on understanding the three-strikes cases that I talked about.

[Sarah Sackman]

I am sorry: I did have that question noted down. The hon. Member will get an answer.

[Dr Mullan]

Would the Minister like to intervene?

[Sarah Sackman]

Let me intervene, because the omission was certainly not deliberate. I am trying to make progress, for the sake of the Committee, but the hon. Member has fairly put the question. To be as clear as I can, the court considers the mode of trial by reference to the sentencing guidelines. According to the sentencing guidelines, a third domestic burglary offence is triable only on indictment.

[Dr Mullan]

Again, there is no pressure on the Minister to answer immediately, but I presume the same is true for the other cases.

[Sarah Sackman]

In fairness to the hon. Gentleman, and so that we can make progress, if he gives me a list of those cases at the end of the day, I will come back and give him chapter and verse on each of them at our next sitting.

[Dr Mullan]

To return to the heart of the matter, I will pick up on the comments made by my hon. Friend the Member for Isle of Wight East on an issue that I had not talked about. I talked about how one forms a view of the sentence and how one gives a sentence, and about the ways in which the interaction is unhelpful, but my hon. Friend helpfully points out that other things will happen at the pre-sentence hearing, including the submission of evidence that is then ruled out of order, that might lead to a certain perception.

The Minister rightly referred to precedents relating to judges’ capability, but I do not think that she really engaged with the Opposition’s concern about perceptions that the system is unfair. The Minister highlighted examples in which that might be a risk already. There might already be times when people argue that the perception is wrong. We accept that. I had anticipated that point, which is why I made it clear that the fact that the existing system is not ideal or has undesirable features does not mean that when we get to design a new system from scratch and from the ground up, we should say, “Yes, this is undesirable in these areas, but it exists and we are not going to get rid of it.” When we are designing a new system, we should design out the less desirable elements. Our amendment puts forward the best possible approach. I suspect that it would make it less likely that either defendants who have been convicted and sentenced or victims will be concerned.

--- Later in debate ---

[Joe Robertson]

The hon. Member for Chichester has set out the reasoning behind her amendment very well. If the amendment were agreed to, it would not go anywhere near restoring jury trials, but it would plainly be an improvement. The leading argument in its favour is that it is what Sir Brian Leveson recommended. The Government have repeatedly cited Brian Leveson’s review, and rightly so—that is what the Bill flows out of—but as the hon. Member for Chichester says, it cannot be a pick and mix. The Government cannot cite Leveson on the one hand and ignore him on the other.

Quite aside from the fact that the opinion expressed in the independent review has been ignored here, there are objectively good reasons why a trial heard by a judge and two magistrates is preferable to a trial heard by a judge alone. For a start, there would be three decision makers rather than one; with a jury there are 12, but clearly three is better than one. But it is not just a matter of numbers. Magistrates could be viewed, and certainly have been viewed, as a hybrid of jurors and judges. They are not judges, and they are not legally qualified people. They bring the quality that jurors bring—varied life experience—to the decision-making process. Of course, in a magistrates court, they are guided in the law by a legally qualified clerk.

It is fairly obvious that magistrates as a group are less diverse than the population of the United Kingdom, from which jurors are drawn, but at least they represent a greater diversity and variety of experience than judges. Judges all share one thing: they went to law school, they are legally qualified and they have had a career that is privileged—that is not a criticism, but I do not think it is an unfair word to describe a judge’s career. Magistrates have a greater variety of life experience. To bring magistrates into the decision making alongside a judge, as Sir Brian Leveson envisaged, would be to bring at least some element of a jury trial: the quality of being unjaded by a career in law and being unencumbered by the experience of being a well-paid legal professional.

I struggle to support the amendment, because it does not go anywhere near maintaining the system that we have today, but it would at least be a small improvement. It is an obvious point, but judges sit alongside magistrates today; it is a tried, tested and understood approach, not an obscure or novel one. Indeed, appeals are often heard in that way, as I understand it, because there is added rigour in having a magistrate sitting alongside a judge.

Of course, having a judge sitting alongside magistrates is an improvement on having magistrates alone, because judges bring professionalism from their legal training and experience of the law as part of the judiciary. There is a benefit there, although of course the benefit is already delivered by the Government’s own amendment, notwithstanding that it is worse than what we have today.

I commend, or at least understand, what the hon. Member for Chichester is trying to achieve. It comes from a good place, but unfortunately—this is not her fault, but the Government’s—it does not go anywhere near maintaining the status quo, which in my view is plainly greatly preferable both to her amendment and to the Government’s approach.

[Dr Mullan]

I welcome the opportunity to speak to amendment 19, tabled in the name of the hon. Member for Chichester. As my hon. Friend the Member for Isle of Wight East pointed out, this one of those challenging situations; we will not vote for the amendment, because it would indicate that we support or endorse a judge trial with two magistrates as opposed to a jury trial, which is not the case. But it is an extremely helpful probing amendment to point out the broader challenges and weaknesses with the Government’s proposal and the differences we would have seen had they followed the proposal by Sir Brian Leveson.

The amendment also draws close attention to a matter that I have spoken about frequently: the Government’s willingness both to say that great credibility should be placed on the reforms that they are proposing because they have come about as a result of the work of the independent review by Sir Brian Leveson, and at the same time to reject proposals by Sir Brian. When we discussed this matter before, the Minister argued that our concern was not valid because Sir Brian had said in his report that the Government could go further. In my view, it is quite the leap to say of our criticisms that specific proposals lack the authority that Ministers claim because they were not recommended by Sir Brian that the proposals would in fact, in some way, be recommended by him anyway.

While I think it is a weak point, it is probably stronger in relation to the decision by the Government to set the test for removing the jury from a Crown court trial at a sentence length of three years rather than Sir Brian’s recommendation of two years. I do not know whether he would support that—one might think he would have said so if he did—but there are what we might call matters on the continuum, where the prospect of Sir Brian’s suggestion of going further on a continuum of sentence length as the test is somewhat understandable. I do not think that argument is at all viable in relation to the measures relating to amendment 19.

There is a distinct, what we might call, category difference between the recommendation to have a judge sit alone and to have a judge sit with two magistrates. We have discussed a number of the drawbacks of a judge sitting alone compared with having a jury. I will take them in turn. First, there is the question of bias—of concerns raised in relation to different outcomes, for example for women or ethnic minorities. We have discussed this before, but I want to draw attention again to the comments of Geoffrey Robertson KC. He said:

“The determination, by 12 citizens of evidence tested by prosecution and defence, is a surer guide to the right result, reflecting common sense and common values, than the personal view of a judge”.

He also said:

“A diverse jury, usually with a few representatives of ethnic communities, serves as some guarantee of fairness and non-discrimination in dispensing justice.”

We have been leaning very heavily on the Bar, but the Criminal Law Solicitors Association says:

“Jurors, drawn from all elements of society, take jury service very seriously. Our Vice-Chair sat on a jury last year and saw his fellow jurors, without exception, treat the process with the gravity and respect that it deserves. Limiting jury trials reduces public engagement in the process and weakens democratic participation in criminal justice.”

Sir Brian was not the only person tasked to consider in detail proposals for a reform of the courts who has settled on similar views about the decision to reduce jury trials, which, as I have said, we do not support. They have also agreed that a judge with two magistrates is the way to do it. Lord Justice Auld’s 2001 independent review of the criminal courts in England and Wales recommended the creation of a new district division, with a unified criminal court structure designed to handle either-way cases that were too serious for the magistrates but did not require, in his view, a full jury trial. He proposed that the court would consist of a professional judge sitting with two experienced magistrates. He said in his report that there is a

“middle-range of cases that do not warrant the cumbersome and expensive fact-finding exercise of a trial by judge and jury, but which are sufficiently serious or difficult, or their outcome is of such consequence to the public or defendant, to merit a combination of professional and lay judges”.

That was a specific choice to say that there was merit in lay as well as professional judges taking part.

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[Dr Mullan]

I rise to speak in support of my amendment 44 and related amendments, which brings us to consider the issue of reallocation in more detail for the first time. It was touched on briefly this morning in the discussion about allocation, but there are distinct differences in the processes.

We must remind ourselves what the allocation process will be initially through proposed new sections 74A to D of the Senior Courts Act 1981. My understanding is that the reallocation provisions are intended to operate in the following way. First:

“The court must, at the prescribed time or times, determine”

in accordance with proposed new section 74A

“whether the trial is to be conducted with or without a jury.”

It is important to note that “prescribed time” is not defined in the Bill, but would be covered by the existing provisions in sections 84 to 87 of the Senior Courts Act, which refer to prescribed matters being specified in the criminal procedure rules. The explanatory note does not appear to provide any further detail on what the criminal procedure rules are likely to prescribe in terms of timing, so it would be helpful if the Minister could tell us what she expects that to be.

Whatever the prescribed time is defined to be, the court must say that the trial is to be conducted with a jury if either the offence, or any of the offences, is triable only on indictment or if the court considers that the defendant, if convicted of the offence for which they are to be tried, would be likely to receive a sentence of imprisonment or detention of more than three years. In any other case, the trial is to be conducted without a jury.

We have covered this initial decision at some length, but the proposed legislation also says that if a trial is to be conducted without a jury but there is a relevant change of circumstances, the court may—and in some cases must—reallocate the case to a jury trial. A relevant change of circumstances is defined in proposed new section 74B(8), and will occur if either the defendants to be tried, or the offences for which they are to be tried, have changed since the court’s last determination on allocation, or it appears to the court that there is new evidence that would or might affect whether the condition in proposed new section 74A is met, and that condition relates to a likely sentence of imprisonment of more than three years.

This is something to which we must give close consideration. The Bill does not define the term “new evidence”, and I am not aware of it being defined elsewhere in legislation. We can look to the explanatory notes to try to better understand what is meant here. In paragraph 206, the notes say:

“This is intended to capture significant new material indicating that the offending is more serious, or less serious, than originally understood. It is not intended to require the court to redo the full allocation exercise each time new evidence emerges, but simply to note where new material might alter the earlier likely-sentence assessment so as to justify reconsideration under section 74B.”

The explanatory notes are helpful, but we must remember that they are not legislation and that the courts are more likely to seek to interpret differently what may or may not be said in an explanatory note from something that is given clear direction in legislation.

The explanatory notes actually leave us with not just one but two new terms. Again, as far as I am aware, “significant new material” is not defined in legislation; there is certainly no case law for it in these specific circumstances, as these courts have never operated before. I do not think we can know in practice how it would be obvious that something amounted to new evidence for the purposes of proposed new section 74B(8); the Bill, as I have said, is silent on this point.

Do we have to assume that that will become a matter of judicial interpretation or discretion? I think we do. It might be evidence that was not already set out in the initial details of the prosecution case or in a defence statement. While the explanatory notes say they do not expect this process to be done on a rolling basis, I assume that the prosecution and defence would be able to invite the judge to consider whether evidence amounts to “new evidence” whenever it was brought to the attention of the court as part of the general conduct of the trial. Again, this is not specified in the Bill, but it is certainly not ruled out.

If there has been a relevant change of circumstances meaning that the case involves an indictable-only offence—for example, if new evidence emerges that results in a charge of theft being recharged as robbery, or a charge of sexual assault recharged as rape—the judge must reallocate it to a jury trial. To be clear, that is in relation to offence-based things. If there has been a relevant change of circumstances, but the aforementioned process does not apply—for example, if there is new evidence that means a custodial sentence of more than three years is likely—the judge may reallocate that to a jury trial. The use of “may” is important, because may is not must.

I draw Members’ attention to the wording of the initial process of allocation. Perhaps to the frustration of some, I took the time to read it, because it is important. The initial wording on allocation with regard to sentence times is “must”—if the court thinks a sentence of more than three years is likely, it must allocate a jury trial—but as I pointed out, on reallocation the court simply “may” reallocate. I hope it is immediately obvious to Government Members that that is a less stringent test, which creates an inherent unfairness.

At the outset, if a judge thinks that a defendant or accused is likely to receive three years, that jury trial is guaranteed. Let us remind ourselves that the Government accept that that is a benefit or a right—although they do not accept it is an absolute right—if the outcome is potentially a sentence of more than three years, yet some people will not get that benefit, even though the Government accept that it is desirable, because the Bill states that the judge has discretion to continue conducting the trial without a jury despite the relevant change of circumstances.

The judge has that discretion if any of the following applies. First, they have that discretion if the condition in proposed new section 74A—a likely custodial sentence of more than three years—is not met in relation to the defendant. Secondly, and this is the important bit, in proposed new section 74B(3)(b), they have that discretion if

“the court considers that it would not be appropriate to reallocate the trial”,

taking into account the matters set out in proposed new section 74C(6) and (7). Those include representations by the prosecution and defence; the extent to which the new likely sentence differs from the three-year threshold sentence; the interests of the alleged victim; the desirability of avoiding the need for witnesses to give evidence again; any delay to proceedings; any actual or potential wasted costs; the effect of reallocation on other court business; and any other prescribed matter set out in the criminal procedure rules.

Thirdly, the judge has that discretion if, as proposed new section 74B(3)(c) states,

“the prosecution and the defendant or defendants each consent to the trial being conducted without a jury.”

Therefore, if the defendant is happy to carry on without a jury, even though they risk the higher sentence, the trial can continue—and similarly for the prosecution.

Some of those examples set out in proposed new section 74C(6) and (7) could legitimately deny a defendant a right that they would otherwise have had if the evidence had been available at the start of a trial. It could be something that has nothing to do with them—for example, a witness might not give the same evidence in their statement as they do at trial. Another example is the effect of reallocation on other court business—so simply because it would be challenging for the court to allocate or reallocate the case, a right that the Government deliberately set out to preserve for those people at initial allocation could not be exercised at that point. Again, in essence, those are all new legal tests.

We have a whole range of factors, many of them subjective matters that must be weighed, rather than objective ones. They may all be factors that we might reasonably agree should be given weight, such as—to go back to some of the factors—the interests of the alleged victim. If an alleged victim has had a traumatic experience of giving evidence, it is not unreasonable for people to consider that. That does not mean, however, that it will not lead to circumstances in which a defendant is substantially disadvantaged.

Let us take, for example, a case related to injury. In a case of assault occasioning actual bodily harm, the sentencing range for this offence, triable either way, can include a sentence of up to four years. That is a good example of where we might see a change in circumstances, based on the evolving medical consequences of an alleged assault.

A more concrete and simple example than a medical injury that might evolve from an assault, which is complex, is a person who is originally on trial for grievous bodily harm or attempted murder, but the victim dies during the trial or at a much later date, which can happen, and the person can be retried for a further offence. We know that the medical consequences can take time to materialise and can make a material difference to the charge. There are other borderline cases where the likely sentence at the point of the initial allocation decision was considered to be just under three years.

To give another example, the sentencing guidelines for the most serious harm or culpability form of theft suggest a starting point sentence of three years and six months, with a suggested range of two years and six months to six years. That is absolutely within the scope of not being allocated a jury trial, but if the medical consequences were to evolve, that would change and push it to a sentence of up to six years, which would require a jury trial.

As the hon. Member for Amber Valley, with her expertise and experience of the CPS, pointed out in relation to things that already happen in a magistrates court, we know that magistrates have to undertake this sort of intellectual exercise. They must be mindful that if the circumstances change, the trial must move to the Crown court. I understand that is quite unusual, however, and as we have talked about before, the stakes are likely—not always—to be lower when we are talking about a potentially much wider gap in possible sentence length.

Strangely, this may be an example of something that magistrates do but, as I understand it, Crown court judges do not normally do; Crown court judges do not have to have it constantly in their mind throughout a trial whether their view has changed on the likely sentencing outcome. As I have alluded to, the legislation therefore risks creating a whole raft of legal challenges over potentially many years until there is a settled common law understanding of how all the different measures interact, and until higher courts set out the methodical tests and boundaries that are absent from it.

The obvious test will arise when someone does actually end up receiving a longer sentence, and the obvious challenge will be that the judge should have realised and reallocated the case because of something considered materially new. That will be highly arguable. Let us say, for example, a complainant, when giving evidence, identifies a more profound psychological impact of a crime on them that was apparent from the initial statements disclosed—something that is to some extent subjective. The judge might listen to the evidence being given and not consider it to be materially different from the statements on which they based their initial summation, but I can absolutely imagine a defendant and their legal representatives feeling that a witness did say something that indicated something materially different. That is another more complex decision than the one made by the magistrates courts in a different way.

As we have heard again and again, although magistrates court trials can be long, they are often shorter. Weighing up the impact of restarting that trial, of discounting the work that had been done and of re-sending it to another court, is very different from making that decision after weeks and weeks of a Crown court trial.

There is also another risk in terms of public confidence in the process. As we have touched on before in relation to the initial allocation and sentencing, the judge will have already made a decision and given a view on initial allocation. There would be a risk that a defendant feels that their right to a jury trial, if the circumstances are such that they would have been concerned that the sentence would be greater than three years, might inhibit a judge from reallocating in the way that they would have ordinarily wanted to.

As we have covered, the judge will be able to pass that higher sentence, which is another important difference with the magistrates, who, as I have talked about before, are constrained in their ability to go beyond that initial judgment. There will be no constraints, so it would be perfectly possible for a judge who had an initial view to end up passing a sentence much higher than they had anticipated and much higher than the defendant was advised would be the likely outcome. Again, that would give serious impetus for a defendant and their legal representatives to make the point that the judge had erred in their reallocation.

It is not just a question of the fair thing to do. I explained earlier in relation to other allocations that I do not think it is the fair thing to do, but again it is a matter of efficiency and process. If we end up with repeated appeals over, as I have said, many different factors that will all individually need to be clarified in case law, that will again take up the time and energy of court staff, and particularly legal representatives, who work between all the different courts in a way that judges do not.

Amendment 44 would help to balance that by opening up the widest possible interpretation of whether a reallocation is the right thing to do. We think talking about it in the interests of justice will give the maximum possible room to defendants to be sure that the trial they receive without a jury, and the decision taken to deny them a jury, are as fair as they possibly could be.

--- Later in debate ---

[Sarah Sackman]

What circumstances does the hon. Member envisage would trigger that reallocation? The allocation has been made—it has been allocated to a jury trial. She is right that it has not yet commenced, which is the point I was dealing with, but the circumstances we are dealing with here fall into two broad categories: first, where the nature of the offences in question changes; or secondly, where new evidence comes into play mid-trial, which is so material as to lead to an application to reallocate, or even to a judge of their own volition deciding that the seriousness necessitates reallocation. I cannot see, where it has been allocated already but has not yet commenced, why that would be triggered. But maybe I have missed something.

[Dr Mullan]

I talked about how the medical picture can evolve in a worsening situation. We can also get that situation in reverse. For example, in A&E, the A&E consultant’s interpretation of an X-ray, to determine whether someone has broken a bone, can be a key fact in deciding the classification. But when that goes to a radiologist, sometimes two or three weeks later, they have that more expert view. This happens quite regularly: they review the X-ray, CT scan or whatever it might be and say, “Actually, no, there isn’t a fracture here.” That would then drop down the injury to a different category. In that intervening period, which could be a matter of weeks, there would be a change to the nature of the charge.

[Sarah Sackman]

What I am seeking to be clear on is that when we are talking about the trial being commenced—a perfectly good question—I am saying that if the trial has started and there has been the first day, and then for whatever reason there is an adjournment, in those circumstances we would never see such a trial reallocated to the bench division.

I suppose there may be circumstances in which there is an adjournment and new evidence could come to light, or a new offence or a new charge could be added to the indictment or withdrawn, which I suppose might trigger a reallocation decision, but the trial itself would not have commenced. In those circumstances, I think I am right in saying that it is possible that it might get reallocated at that point. I will come back to the hon. Member for Chichester if anything I have said on that point is inaccurate.

Amendment 44 would not add substantive protections, because the defendant in every Crown court trial, irrespective of whether it is Crown court bench division or before a jury, would be considered to receive a fair trial. The mode of trial itself has no bearing on the fundamental fairness of the proceedings.

We have designed the test for mode-of-trial allocation in clause 3 to ensure that the relevant interests are properly balanced by the court. Parties are given the opportunity to make representations on allocation and the court must have regard to the interests of victims when deciding whether reallocation would be appropriate.

I make one final point. The hon. Member for Bexhill and Battle raised a concern about rolling applications throughout the course of a trial. I think the Government’s view is that that is unlikely to be the case, because while new evidence is a feature of trials commonly, it is not all that often that such new evidence alters the fundamental seriousness of the case to such an extent that it would engage the tests that are here. I am not sure that it is quite the concern that the hon. Member suggests, and I urge him to not press amendment 44 to a Division.

--- Later in debate ---

[Dr Mullan]

I beg to move amendment 42, in clause 3, page 9, line 23, leave out subsection (4) and insert—

“(4) Where a court has determined in accordance with section 74A that a trial is to be conducted without a jury, the court cannot pass a sentence of imprisonment or detention of more than three years on a person convicted of an offence.

(4A) Where a person is convicted of an offence and the court considers that the appropriate sentence is more than three years’ imprisonment or detention, the court must refer the case for retrial by jury.”

This amendment prevents a judge sitting alone from sentencing a defendant to more than three years in prison, and requires that if this is the likely sentence, the case must be remitted for trial by jury.

It is my pleasure to speak in support of amendment 42, tabled in my name, which really drives at the heart of the question of fairness in relation to this new system. It would prevent a judge, sitting alone, from sentencing a defendant to more than three years in prison, and requires that, if that is the likely sentence, the case must be remitted for trial. Again, related to the important points I made earlier, it also introduces the element of “must”.

Again, we have to revisit the process of allocation; triable either-way offences will be allocated on the basis of sentence length. That is the important part for us to consider here. The Government have agreed that the suitable manner in which to allocate offences to trial with or without a jury is based on sentence length. We can only conclude, therefore, that the Minister accepts that the possible consequence—the possible time in prison—is intrinsically linked to the fairness, reasonableness, desirability or however the Minister might want to describe it of remaining with a jury trial.

In this case, if criminals—because they will have been convicted at this point, we can say criminals rather than defendants—ended up with a sentence of more than three years, they would have a reasonable basis on which to say that their treatment was not in keeping with the Government’s own decisions about what would be preferable in relation to fairness. Let us be clear: I spend a lot of time working with victims and campaigning for longer sentences for offenders, and I think that, across the board and for many decades, our sentencing regime for convicted criminals has been insufficiently punitive and has given insufficiently long sentences. But that does not mean that I do not think that there is a fair and proper way of going about that.

I agree with the Government that sentence length is inherently related to fairness in regard to whether someone gets a Crown court trial with or without a jury—although, in my view, it should always be a jury trial—but a convicted criminal now will look at this and say that he has a sentence greater than he otherwise should have expected to get, and that, if the judge had anticipated correctly that sentence at the outset, he would have had a jury trial. That would be his reasonable conclusion.

[Linsey Farnsworth]

On that point, what are the hon. Member’s thoughts in relation to a magistrates court where a magistrate has made a decision that a case is suitable for summary trial but then they have the opportunity—or the right if you like—to commit somebody for sentencing at the Crown court if the offence turns out to be more serious than had originally been envisaged? Actually, the safeguard for the expectation of the defendant is dealt with at an early stage—at the allocation stage—when the defendant is told of the decision that the case will stay in the magistrates court, but they could be committed in due course to sentencing in the Crown court.

[Dr Mullan]

That goes straight to the point we discussed earlier about why it is important to separate the two, because in this scenario it is the same person all the way through. Ultimately, the sentencing process ends up being separate to the people who decide whether or not someone is guilty, and they will have decided the mode of trial, as well.

[Linsey Farnsworth]

Can I also just mention Newton hearings? A defendant has pleaded guilty but does not accept all the allegations that the prosecution’s case sets out—perhaps the most serious aggravating feature. Then, there is a Newton hearing, at which a judge sits and decides what the factual situation is and goes on to sentence as well. There is already precedent in the Crown court for a judge to hear evidence, make a decision based on the evidence, and pass sentence. I wonder what the hon. Gentleman’s view on that is.

[Dr Mullan]

This is a great opportunity for me to learn and understand an element of the system that I did not understand—I know about it, rather than understand it.

I will go back to the point that we have made repeatedly. We are designing a system from scratch here. We have the opportunity to do things exactly as we want to. We do not have to be forced into replicating other elements of the wider system; we can design this system as we best think it should operate. I think that the best thing in this scenario, in which we are starting from scratch, would be to say to somebody that they should be able to derive the benefit of having a jury trial if the case is of a nature that the Government themselves agree would typically enjoy the benefits of a jury trial. This is just inherently a fairness question.

That is why we have replicated the process—in a positive way—in a magistrates court. The decision is the decision that has been made; the court cannot go above it. That is because we say that in a magistrates court, if someone seeks to go above that court, that is not the right place to do that; it would not be fair and reasonable. We are making a similar point here in relation to mode of trial, for jury trial.

We think that the amendment is sensible, reasonable, balanced and does not prevent the Government from undertaking their reforms; it is not what could possibly be described as a wrecking amendment. I hope that the Government will reflect on that and accept the amendment.

[Joe Robertson]

I echo the points made by the shadow Minister. The issue here is where sentences may go above three years. A sentence of three years or more is fairly significant. The crime, of course, will match the sentence; no one is suggesting that the sentence is inappropriate in these cases—someone has been convicted. However, the issue is that the trial—the fact of innocence or guilt—will have been decided by a judge. Without raking over too much old ground, the point in a jury trial is that on more serious offences, jury decides innocence or guilt.

What we have here, without the amendment, is a back-door way for a judge to decide what turns out to be a more serious case than perhaps had originally been thought, because the sentence passed is more than three years. As I understand it, it is not the intention of the Government to capture more cases of that serious nature than they had originally intended would be decided by a judge. They themselves are not arguing that jury trials do not have a place in this country for a great number of cases—unfortunately, not enough after this legislation.

The hon. Member for Rugby made the point in an earlier sitting that other Governments have adjusted the threshold, notwithstanding our disagreement over what is being proposed in this legislation. Clearly, the issue with this provision, if it remains unamended, is that more serious crimes, with a sentence of more than three years, will inadvertently get caught.

I cannot quite understand why the Minister will not accept the amendment, but I am sure she will address that. Once again, it would not, in any material way, move away from what she is trying to achieve with the legislation, which is tackling the backlog of Crown court cases. Again, that intention that is perfectly well meant. The amendment would not, in any way, get rid of her primary intent to get rid of either-way offences so that they are not heard by a jury. Notwithstanding the fact that I do not agree with her on that, the amendment would not defeat what she is trying to do there. Effectively, what it would do is close a loophole.

I invite the Minister to address that point about instances where a judge decides, on their own without a jury, that a case is of significant seriousness—and that may mean complexity that was not apparent at the outset but became apparent during the trial—that he or she wishes to pass a sentence of more than three years. Three years is a serious length of time for someone to be locked up and deprived of their liberty. Wherever we think that the threshold should sit, I think that we all agree that jury trials have a role in this country for more serious crimes.

If the threshold can rise above three years through that avenue, how high a threshold is the Minister willing to tolerate? In how many cases is she willing to tolerate that apparent loophole? Maybe she does not see it as a loophole. Maybe there is purpose behind it. If there is, perhaps she can explain why it is important enough to risk even her principle by having more serious crimes—those with a sentence over three years—potentially being heard without a jury. Again, I reiterate that I disagree with the primary disapplication of jury trials for what are now either-way offences. That is not what this is about; this is about the Bill doing something more than the Government may wish to do. I invite the Minister to address that in some detail.

[Sarah Sackman]

I will seek, as best I can, to clarify why judges sitting alone should have full Crown court sentencing powers consistent with the recommendations of the independent review of criminal courts. That review made clear that both judge-only trials—where those are prescribed—and a Crown court bench division must operate with the same judicial powers as jury trials if they are to function effectively in practice. As I have said, allocation is an early indicative assessment. It cannot and must not predetermine the sentence, which must be based on the facts proven at trial. The amendment would reverse that principle, effectively allowing an initial assessment allocation to cap the sentence ultimately imposed, or else force a retrial before a jury. That would compound a delay which, as anyone who has listened to victims’ testimonies to the Committee knows, we can ill afford.

Under proposed new section 74A, the allocation decision—whether the case should be tried by a judge alone or by judge and jury—will rely on a structured application of the existing sentencing guidelines. As I have said, we are not introducing an unfamiliar exercise, and we have full confidence that judges will apply the guidelines consistently to determine the appropriate mode of trial based on their assessment of the seriousness of the case.

In practice, the allocation decision in the Crown court will be tied firmly to the facts of the case, in much the same way as in the magistrates court. That means that in the vast majority of cases it is unlikely that a case will result in a sentence far beyond what was anticipated at the point of allocation. However, I recognise that in a small proportion of cases where evidence evolves and a case becomes more serious, appropriate safeguards must be, and will be under the Bill, put in place. That is precisely why the Bill includes provision for a reallocation where circumstances change. Where an indictable-only offence is added to the case, it must always be reallocated as a jury trial.

Where seriousness increases just enough to push the likely sentence in a case above three years, the judges must consider reallocation to jury trail. We have looked at the factors set out in the Bill, including potential delays following reallocation, any disruption to victims or wasted costs, and the effects on other trials. It is therefore essential that judges sitting alone retain the full sentencing powers of the Crown court. Unlimited sentencing powers do not expand the jurisdiction of judge-alone trials, but they ensure that once a case has been properly tried, the sentence imposed reflects the facts as found.

Against that backdrop, amendment 42 would require cases to be retried because the sentence ultimately exceeded the earlier indicative assessment. As I have said, that would introduce significant delay into the system, requiring cases to be heard twice and directly undermining the purpose of these reforms, which is to reduce the dreadful delays. The principle that the sentence must reflect the facts is important, and for that reason it is necessary that judges retain the full sentencing powers. To do otherwise would risk distorting outcomes and create unnecessary duplication and delay in proceedings, thereby undermining confidence in the system. For that reason, the Government cannot support the amendment.

[Dr Mullan]

I want to pick out a couple of points. The Minister has criticised the risk of retrials, and we have made several points about how other elements in the Bill will increase that risk through successful appeals and so on. I accept the Minister’s point that it is unlikely that these things will happen, but this is not so much about whether someone was expecting three years and ends up with three years and two months, for example, as the fact that there is no control of it at all.

The Minister is right that there is a reallocation process. We have debated the flaws in that, which are pertinent, but clearly the Government do not think that the reallocation process is perfect, otherwise they would not mind a cap. If they thought that the reallocation approach would manage all these scenarios, they would not oppose a cap. They want to oppose it because they accept that the reallocation process will not be perfect. Someone might be expecting a three-year sentence—I gave an example earlier, I think of theft—but could end up with a six-year sentence, double what they expected to receive. That is many years above what the Government have recognised as a suitable and acceptable threshold on which to make these decisions. It would be inherently unjust, and those sorts of situations would warrant retrial.

[Sarah Sackman]

Just on that point—as unlikely and rare a scenario as I anticipate it would be—would the hon. Member accept that that sentencing decision could be subject to appeal?

[Dr Mullan]

Yes, but the question is not whether the six-year sentence is reasonable, it is whether the mode of trial in reaching that sentence was fair. The Government agree that the preferable mode of trial in all other scenarios that could lead to a sentence of six years is a trial with a jury. Yet we could have people expecting a three-year sentence and ending up with a six-year one, which is far from the Government’s test of reasonableness for the mode of trial.

I understand the point about weighing probabilities with the smaller gap, but we are faced with the question of allowing either no gaps or very big gaps. If we are forced to choose, I will continue to say that we support amendment 42, because it is important that people do not end up in that situation. I do not know the limit; I have given an example of three to six years, but there could be even wider gaps among the offences that we are considering. That would not be reasonable, and, therefore this safeguard is important.

Question put, That the amendment be made.