Courts and Tribunals Bill

Debate between Lord Lemos and Lord Marks of Henley-on-Thames

Committee stage
Tuesday 10th November 2026 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I added my name to Amendment 29, moved by the noble and learned Lord, Lord Keen of Elie, and I am delighted to endorse everything that he and the noble Baroness, Lady Chakrabarti, have said about it. I am delighted to join the noble Baroness in her campaign against Henry VIII. I am bound to point out that he had six wives, so there is no reason why he should not have as many critics and more.

The amendment would leave out part 2 of new Schedule 3ZA and therefore remove the power to add or remove offences to the list by order of the Secretary of State. That amounts to a pernicious Henry VIII power to add any offence to the “judge alone” list. No one has read it out, but I remind the Committee that the “judge alone” list in the Bill as drafted is just financial crime: conspiracy to defraud and offences under the Fraud Act; tax and VAT evasion; false accounting; insider dealing; money laundering; terrorist funding; bribery; historic fraud offences under the Theft Acts, including deception and going equipped to cheat; and ancillary offences. Those are financial crime, and that is what we had all envisaged the judge-only provisions would be about. However, it is not what is now proposed when there is a power—fettered only by the need for a preparatory hearing, effectively—to add further offences of whatever sort, provided that they are not the offences, excluded by the primary legislation, of homicide and serious sexual offences.

The Delegated Powers Committee, on which I once served—I agree with the noble Baroness about the worth and value of the work that it does, if often unlauded—described those provisions in its report on the Bill as being concerned with

“offences of serious economic crime such as fraud, bribery and terrorist funding”.

The committee summed up the principle in the 2021-22 report Democracy Denied?, which the noble Baroness cited:

“The appropriate threshold between primary and secondary legislation should be founded on the overarching principle that the principal aspects of policy should be on the face of a bill and only its detailed implementation left to delegated legislation”.


That neatly and elegantly sums up one of the cardinal rules on which parliamentary democracy is based: that the Government are accountable to Parliament and Ministers introduce a programme of legislation, but it is for Parliament to pass or reject it as it determines.

Vesting a Minister with the power to enable trials without a jury of any offence triable on indictment other than excluded offences, provided only that a relevant preparatory hearing has been ordered, would be a radical departure from that principle of parliamentary sovereignty. We will oppose it and we will vote against it on Report. While we are prepared to give the Government time to consider their position between now and Report, Ministers should be in no doubt as to the seriousness with which we view this threatened abuse of constitutional principle.

On the merits of adding further offences to Clause 3, we see little reason, as I have explained, for judge-only trials as a matter of principle, unless applied for by a defendant. We see no reason whatever for them in other cases in the Crown Court, unless sought by the defendant, and will continue to oppose these provisions.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Lemos) (Lab)]

My Lords, Schedule 1 is an inherent element of “judge alone” trials for complex or lengthy fraud and financial cases, as it stipulates those offences that are in scope of the measure, and therefore should stand part of the Bill. I have heard concerns that Part 2 of Schedule 1 could be used over time to expand broadly the scope of Clause 3 —noble Lords have spoken very clearly and firmly about that. Let me be clear: it is already the case that amendments to the schedule can be made only through the affirmative procedure—and I note the comments that have been made about that—which requires a successful vote in both Houses. Offences cannot be added to the schedule without Parliament’s consent.

Amendments 30, 63 and 64, tabled by the noble Viscount, Lord Hailsham, would prevent the addition of further offences to the schedule. Amendment 29, tabled by the noble and learned Lord, Lord Keen, would go further by preventing any changes to the schedules at all, whether additions or deletions. As I have said, the purpose of this provision is to allow the system to respond flexibly as fraud and financial offending evolve over time. Technology continues to evolve rapidly, including developments in artificial intelligence. Cases involving any added offences will always have to comply with the other statutory safeguards for an order under Clause 3: a preparatory hearing, a public interest test, exclusions for homicide and indictable-only sex offences, and judicial decision- making.

I have noted the comments of the Delegated Powers Committee, and I understand that we will return to this on Report. With those comments, I ask the noble and learned Lord to withdraw his amendment.

Courts and Tribunals Bill

Debate between Lord Lemos and Lord Marks of Henley-on-Thames

Committee stage
Tuesday 10th November 2026 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, before the Minister sits down, and certainly before the noble Viscount, Lord Hailsham, stands up, I would just question the Minister’s assertion that, because there is an appeal against a conviction that would continue, Amendment 25 is otiose or not needed. Under new Section 42A(5) on page 6 of the Bill, there is no right of appeal against a decision to make or not to make an order. If it is intended that a decision to make or not to make an order under this section could be raised as a ground of appeal in the Court of Appeal following conviction, how is that clear in view of the bar on appeals under new subsection (5)?

[Lord Lemos (Lab)]

The noble Lord makes an interesting and important point, and we can certainly discuss it. However, as I have said, the Government’s view is that the designation of these trials is protected very carefully and thoroughly, and that should be sufficient.

--- Later in debate ---

[Lord Lemos (Lab)]

My Lords, Amendments 12, 13, 22 and 32 all relate to allowing defendants to apply for trial by judge alone in the Crown Court. Amendments 12, 13 and 22 would introduce a role for defendant applications into Clause 3, which provides for “judge alone” trials in certain complex or lengthy fraud or financial cases. Amendment 32, from the noble Lord, Lord Carlile, would allow any defendant in the Crown Court to apply for trial by judge alone, so that goes significantly further, and he set out the case very eloquently.

Amendment 22 would allow defendants to apply for the court to make an order under Clause 3. The court would have to apply an “interests of justice” test —the noble and learned Lord, Lord Thomas, made that clear—before accepting an application. All co-defendants in a multi-defendant trial would have to apply, and the prosecution could not apply. Amendments 12 and 13 would make defendant application a mandatory condition of “judge alone” trials for complex or lengthy financial cases. The court could not move on its own to make an order, and neither could the prosecution apply.

Any defendant in the Crown Court would be able to apply for “judge alone” trial under Amendment 32. It is not limited to fraud and financial offences. The exact process would be set out in Criminal Procedure Rules. The court would determine the application by applying an “interests of justice” test, but must have regard to various matters including exceptional complexity, prejudicial publicity, national security considerations and other named criteria. I recognise that it is similar, as he has just said, to a recommendation made by the noble and learned Lord, Lord Leveson, himself.

However, the Government are unable to accept this proposal. The Government agree with the conclusion of the noble and learned Lord, Lord Leveson, that court choice, rather than defendant choice, should determine the appropriate mode of trial. This central principle runs through the Bill and we wish to maintain it, so I am making almost exactly the converse of the case made by the noble and learned Lord, Lord Keen, with the same sense of consistency.

The Government’s view is that we must redress the balance between defendant and victim. We have heard from victims that they feel the balance is currently tilted in favour of defendants, who get too much control over questions of venue or mode of trial, when victims have no say in this. Our reforms would achieve the right balance by placing the decisions on mode of trial squarely in the hands of the court. Decisions should be based on whether a case meets the statutory test, not the preference of a defendant.

Let me be clear that this is not to say that the views of the defendant would be absent entirely under Clause 3. Parties must be given the opportunity to make representations on a potential order and the court must take those views into account when determining whether to make an order.

I thank all noble Lords for a fascinating debate. I am sorry to hear that the noble and learned Lord, Lord Leveson, is leaving the country, but I hope we will hear from him again before he does; surely, it is not that bad. Given this position, I hope that the noble Lord, Lord Marks, will consider withdrawing his amendment.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I am very grateful to those who have spoken in this short debate. I am bound to say that, at the moment, I am disappointed by the position taken by the Minister. I can see his reasoning, but I am not sure that there is a great deal of understanding of the position of defendants or the arguments put particularly by the noble and learned Lord, Lord Phillips of Worth Matravers, and in relation to Crown Court trials generally by the noble Lord, Lord Carlile. I appreciate that goes much further than my amendments do. Nevertheless, that may be something we can continue to discuss. I would envisage further thought on whether jury waiver by defendants would not be appropriate in the Clause 3 cases. Meanwhile, I beg leave to withdraw my amendment.

Rape and Serious Sexual Offences: Jury Directions

Debate between Lord Lemos and Lord Marks of Henley-on-Thames

Monday 9th November 2026 Lords Chamber

[Lord Lemos (Lab)]

Yes, I absolutely agree that my noble friend has raised a worthwhile and important debate. At the heart of this is the fact that rape myths are pervasive, widespread and widely damaging in our society. That is what we need to do something about. The Government want to ensure—I am sure my noble friend agrees—that they are not used to distort criminal trials and retraumatise victims. Victims should never feel that they are on trial. We know we need to do better on ensuring that victims of rape and sexual abuse feel safe to seek justice. I pay tribute to my noble friend Lady Levitt’s work at the Crown Prosecution Service to achieve that. But this is ongoing work, and of course the Government will continue to think about it.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, worryingly and counterintuitively, young people seem unduly susceptible to rape myths. End Violence Against Women found, for example, that only half of 18 to 24 year-olds recognise that rape is still rape even if the victim does not physically fight back, and that only 42% of that age group realise that a relationship or marriage does not mean assumed consent to sex, as against 87% of over-65s. Does this not underline the need not only for clear directions to jurors, with which I fully agree, but for more and better sex and relationship education in school?

[Lord Lemos (Lab)]

Yes, it does. The noble Lord’s points about the attitudes of young people are well known and deeply concerning, and they certainly need to be addressed through relationship and sex education. But it is not just young people: I make the fairly obvious point that we are particularly concerned about how some of these myths are perpetrated online and the access that young people have to that. That is why our work in the Online Safety Act, which is ongoing, will continue. This is an extremely important area of work, and the noble Lord draws our attention to how it is a matter not simply of the law but of wider attitudes in society among young people, and we need to address that on a very broad front.

Prison Recalls: Breach of Licence

Debate between Lord Lemos and Lord Marks of Henley-on-Thames

Wednesday 4th November 2026 Lords Chamber

[Lord Lemos (Lab)]

Yes, I do agree with that, and I am very proud that the Government have announced decisive steps to address the IPP problem. It has gone on far too long and we are going to address it, as the Prime Minister and the Lord Chancellor have announced. I should say, of course, that we shall not compromise public protection in doing that and, with regard to recall of IPP prisoners, we must make sure that the public are safe. But, as far as the IPP sentence is concerned, it must go.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, recalls are at their highest level ever, with more people now being recalled than are released. More than 70% of recalls follow non-compliance, while only a fifth follow reoffending. Non-compliance is often not deliberate but results from an inability to meet conditions, often because of housing or debt issues, rather than wilful breaches. How is it decided where recalled prisoners are placed and what support they are offered while back in prison for 56 days to help break the cycle of repeated recalls?

[Lord Lemos (Lab)]

There are several parts to that question; let me try and answer them quickly. On the question of recalls for administrative breaches, we are trying to improve the administrative procedures and use technology to ensure that, as far as possible, offenders on licence can avoid recall for those reasons. Of course, the noble Lord is absolutely right: the way to avoid recall is to prevent people becoming homeless and support all the protecting factors that prevent reoffending or, indeed, recall. Since we started our community accommodation service in HMPPS, we have helped to house 36,000 people, and the number of homeless ex-offenders has come down, but there is more to do. Finally, on the 56 days point, the reason we have done that, as the noble Lord knows, is to ensure that something meaningful and purposeful can happen when people are recalled.

Electronic Monitoring of Offenders

Debate between Lord Lemos and Lord Marks of Henley-on-Thames

Wednesday 28th October 2026 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Lemos) (Lab)]

There are various reasons why individuals who have an electronic monitoring order are not yet tagged, including not being at their address when officers arrive or being within in the contractual 48-hour period for installation. They may have been recalled, or the tag may have been tampered with or cut off. I do not agree with the noble and learned Lord that the earned progression model and release under it are likely to have increased those numbers. The earned progression model has been planned and releases under that are different—I make this point every time I speak on this at the Dispatch Box, and it is a really important point. It is not the same as the emergency early release schemes introduced under the last Government and at the beginning of this one. It is a planned process happening in 10 tranches. We made sure that the tag resources were available through Serco, so I do not agree with that. On the question of data, we will publish data on tagging in the normal way.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the Government now seem to recognise that home tagging after a prisoner’s release has serious problems. First, until released offenders can be tagged at home, they can be a frightening menace to their victims. Secondly, if they have no stable home, they can prove very difficult to tag at all. Yesterday in the other place, Minister McKinnell told my honourable friend Jess Brown-Fuller MP that tagging at prisons before release, so-called tagging at source, was being ramped up. She welcomed a suggestion from Dame Emily Thornberry MP that prison officers should be trained to fit the tags and were willing to take such training and do so. Tagging at source is obviously a better and, I suggest, a cheaper system and one wonders therefore why home tagging was ever an option. The Government have an extra £100 million earmarked for tagging. Why can tagging at source not be organised almost at once? Why the delay?

[Lord Lemos (Lab)]

Home tagging was instituted under the previous Government and is part of the Serco contract, as we have discussed before. The Government agree that tagging at source is the right approach, and that is what Minister McKinnell said yesterday. We are rolling that out and are doing it in an orderly way. We are receiving a great deal of co-operation from prison staff as we go about that. That is the right answer, and that is what we are going to do. On this whole question of tagging, I think all noble Lords who work in this area know that tagging will be an increasingly important part of the criminal justice system. The way we go about it will evolve and, exactly as the noble Lord, Lord Marks, said, tagging at source is the future and we will get there as soon as possible.

Criminal Justice Reform

Debate between Lord Lemos and Lord Marks of Henley-on-Thames

Tuesday 8th September 2026 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we agree with the Statement that the Government clearly inherited a crisis of prison spaces, and a crisis in our criminal justice system as a whole. Frankly, the crisis was clearly attributable to many years of neglect, principally under the last Government. The Sentencing Act was a timely response to that crisis of available prison space. It is unsurprising that, as events have developed, the implementation of the Sentencing Act has changed, and the response of the Government is acceptable in that regard.

We are content to see that a great deal is being done for victims and victim support but concerned to know that public confidence in tagging and the other measures that are proposed to increase confidence and security among the public are matched by an increase in concern for the welfare of victims generally and the availability of services to those victims.

The provision of probation services plays a considerable part in the Statement. Our concern is that the resources available from the welcome allocation of £700 million for probation services by the end of this Parliament will be insufficient given the increased demands of more prisoners released into the community, more tagging, more restrictions and more exclusions, which are designed to increase confidence and security among the public. What are the Government’s plans in the event that the resources for probation prove insufficient? How far are they able to say that there will be an increase in the £700 million allocation?

I turn to prison building. There is in the Statement a pride taken in the fact that more prison spaces are to be made available. However, prison building is not the whole answer. We need to move to a more humane system that prioritises reduction in reoffending, reform and rehabilitation over simply providing more space. We have overcrowded and unhealthy prisons, many of which need replacement, but new prisons take a great deal of time to build. There are delays in planning, in getting planning permission, in design and in building new prisons. Can the Minister give us details of those delays in the prisons that have been recently opened?

The Statement also talks about building more cells within existing prisons. That is well and good, but the problem may be that those new cells in existing prisons will put more pressure and more need for spaces on the rest of the facilities in those prisons. How far have the Government considered ways of mitigating that?

Finally, on a more positive note, we very much welcome the commitment to legislation to end the complete scandal of IPP sentences before the end of this Parliament. It is monstrous that a sentence that was abolished in 2013 should still be keeping prisoners behind bars when those prisoners would have been released years ago had they been given sentences that fitted their crimes.

I hear the concerns about security. Nevertheless, prisoners on determinate sentences are released into the community, and it is welcome to hear that the same is going to happen for IPP prisoners. We accept the invitation to work cross-party with the Government to work out how this can be achieved, but it would be interesting to hear from the Minister today the detail of how this is going to be achieved within the timescale and what measures that are not currently in place will be taken to that end.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Lemos) (Lab)]

My Lords, I begin by declaring my interest. I was the lead non-executive director and chaired the agency board of His Majesty’s Prison and Probation Service until March 2025. Last week the Lord Chancellor set out in the other place changes to the implementation of the Sentencing Act 2026 to strike a better balance between protecting prison capacity and protecting the public from dangerous offenders. As the noble Lord, Lord Wolfson, indicated, the Government recognise the uncertainty that victims have faced over the summer. When they are told that an offender may be released earlier than they expected, I have no doubt at all that it can be extremely distressing. I will say bit more about how we propose to support, and are already supporting, victims in a moment.

Victim liaison officers will be engaging directly with victims opted in to the victim contact scheme, which this Government have expanded in recent legislation, so that they understand how their individual cases are affected. We are also attempting to trace victims who are not in the scheme. This is backed by £18.9 million for victim support, including a dedicated helpline and specialist support for victims of violence against women and girls. The Government recognise that victims’ concerns are increased by uncertainty. The whole purpose of making these changes to the exemptions is because we have listened to victims. That is the basis on which we are proposing to make these changes. It is why the Government were determined to look again at these changes, which never applied to some of the most serious violent and sexual offences or life sentences.

I say to the noble Lord, Lord Wolfson, that of course I remember the debates on the Sentencing Bill. I was here throughout. I suppose I will not be the first or the last Minister to say that we are doing something different from the things I objected to in the past. We have now, rightly, also excluded rape, serious child sex and grooming offences, manslaughter, other unlawful killing offences, and indecent assault, which had been used to prosecute historic child sex abuse. We acknowledge the public concern. That is why the Prime Minister and the Lord Chancellor have initiated these changes and that is why we have made the announcement. We have listened to victims—that is why we are doing these things—and we want to continue to do that.

On the point that the noble Lord, Lord Wolfson, made about commencement, the Act has already been commenced. Primary legislation is not needed in the short term, but we will pursue it when parliamentary time allows. We must, however, continue to be honest about why these reforms were introduced. When we took office in 2024, prisons were regularly at 99% of their capacity. Running out of places risked paralysing the criminal justice system and we acted to avert that crisis, but prisons continue to operate near their limit.

I have been involved with the subject for many years now. This is not a new problem. This goes back to 2022. I have discussed it—

Sentencing Bill

Debate between Lord Lemos and Lord Marks of Henley-on-Thames

Committee stage
Wednesday 3rd December 2025 Lords Chamber

[Lord in Waiting/Government Whip (Lord Lemos) (Lab)]

My Lords, I am grateful to the noble Lord, Lord Marks, and the right reverend Prelate the Bishop of Gloucester for these important and thoughtful amendments. They seek to give effect to a recommendation from the Independent Sentencing Review, by David Gauke, which would involve creating an independent advisory body that would provide greater scrutiny of the impacts of policy and legislation on the criminal justice system. I absolutely understand the sentiments behind these amendments, and we recognise that this Bill represents a big change to sentencing in the future and that the Government will need timely advice from voices of expertise and experience. I have worked with some of the organisations the noble Lord, Lord Marks, referred to and hold them in the highest esteem.

The Government do not believe that it is right to legislate for a new statutory panel at this stage, but I will say a little about how we think we can take forward the spirit of this. There are already many advisory and oversight authorities for prisons and probation, many of them with statutory remits. However, we will certainly continue to consider whether the creation of a new advisory body is the appropriate mechanism to ensure greater scrutiny and greater effectiveness of the impacts and outcomes of policy and legislation in this area.

Although we are considering this recommendation from the Independent Sentencing Review carefully—I hope I have made it clear that we take it very seriously—we do not support an amendment at this time. As I hope the Committee will understand, creating such a panel requires a good deal of thought about its purpose and responsibilities and how it could fit within the panoply of organisations that already advise the wider criminal justice system. It is already a Rubik’s cube.

As noble Lords will know, the Government are undertaking an ongoing review of arm’s-length bodies, and this sets out clear principles, including ministerial policy oversight, avoiding duplication—that is very important—and improving efficiency. So we are not clear that the creation of such a body in statute, as this amendment would do, would quite align with these aims. So, although we do not accept these amendments today, I assure the noble Lord, Lord Marks, the right reverend Prelate the Bishop of Gloucester and indeed the whole Committee that the Government will continue to consider this recommendation.

On the observations of the noble Lord, Lord Marks, and the right reverend Prelate about improving the understanding of the press and the public, we are certainly in the market for anything that will improve their understanding of how the criminal justice system, particularly sentencing policy, works. So I hope this reassurance about the seriousness with which we take the spirit of David Gauke’s recommendation, and indeed the amendment, enables the noble Lord to withdraw the amendment at this stage.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I am grateful to the noble Lord, Lord Lemos, for his response and his understanding. I am, however, disappointed that he is not prepared at this stage to commit to putting this recommendation into statute. It seems to me and the right reverend Prelate Bishop of Gloucester to be an important feature. If his concern is that we should continue to try to inform the press and public of what sentencing is about, and of what government policy on sentencing and reducing reoffending is about, then the formation of this body is very important. If the formation of this body is very important, why should it not be sanctioned by statute?