Courts and Tribunals Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Tuesday 10th November 2026 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, it is always a pleasure to follow the noble Baroness; we agree very often on matters of this kind, and I particularly agree with the two amendments that she has tabled and to which I have put my name. I will make two brief preliminary points before I come to the substance. First, I apologise that I was not able to participate at Second Reading. I am sorry about that, but I had long-standing commitments which would have been very difficult to break. Secondly, and quite differently, although I have practised at the Criminal Bar off and on for around 40 years, I have to admit that I have not been in a criminal court since 2010—although I still practise as a legal assessor to regulatory panels connected with healthcare professionals—so I do not have a professional or technical interest to declare.

At the heart of this matter, which I think my noble and learned friend Lord Keen will address at some length, is the stand part debate on Clause 1. I shall support my noble and learned friend if he moves a Division on Report, because my view is that it should not stand part. He will argue the reasons, which he set out very fully at Second Reading, and I will therefore summarise them only with the greatest of brevity.

The right to jury trial in “either way” offences enjoys widespread professional and public support. There is very little appetite for change. To change it therefore requires the most compelling of reasons, and I suggest that they do not exist. There is a backlog, but jury trials are not the principal, primary or, perhaps, only significant cause of it. As my noble and learned friend said at Second Reading, when he posed a number of questions, the backlog was caused by a number of factors which have now passed: Covid, for example, or, I regret very much to say, the industrial action among junior members of my profession, of which I deeply disapproved. But there were other considerations: the failure of Governments, who I supported, to provide adequate funding for judicial time and appropriate courts. Administrative action could be taken to remedy this backlog, but we are taking measures to remedy it to which the backlog is not related. In any event, it is not self-evidently sensible to displace a backlog in a Crown Court to one in a magistrates’ court. That seems to me rather surprising. So I am against Clause 1, but I have to recognise the possibility that this Government will seek to ram it through Parliament. Therefore, it is the Committee’s business to try to remedy the faults in Clause 1 or to correct its omissions.

I come first to Amendment 1, so clearly moved by the noble Baroness, Lady Chakrabarti. It cannot be right for a disparity to exist between a defendant with a long string of previous convictions, who is likely to get a lengthy sentence, and a defendant without convictions who is a person of good character. The former is likely to get a jury trial; the person of good character is likely to be denied it. That cannot be right. The noble Baroness has put down a very clear amendment to address precisely that point, and I was pleased to support it.

Amendment 3, to which the noble Baroness also referred, concerns the right of appeal. I know the noble Baroness, Lady Hamwee, shares her views on this. I would like to think that, on Report, we could make common cause together and put it to a Division. However, if the noble Baroness, Lady Hamwee, will forgive me one point, her amendment on appeal is somewhat narrowly drawn. I would prefer to incorporate the concept of fairness and the principles of natural justice, but that is a matter for subsequent discussion.

I am a great supporter of Amendment 2 from the noble and learned Lords. It would be very sensible to introduce the concept of guidelines, because otherwise we are likely to see a judicial postcode lottery. We all know from our experience in politics that a postcode lottery will become deeply unpopular, so the concept of guidelines is a very good one, subject to this proviso: I do not read in the amendment, or in anything naturally associated with it, the suggestion of judicial input. I would like to see judicial input into the guidelines. I shall support all these amendments should they be pressed to a Division on Report.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will speak to Amendment 2, which stands in my name and those of the noble and learned Lords, Lord Phillips, Lord Burnett of Maldon and Lord Bellamy, who very much regrets his inability to be here today.

As its explanatory statement makes clear, this is a probing amendment. It is made in circumstances where the time has come for some further structural change to the cases that go to the Crown Court and those that go to the magistrates’ court. The backlog in the Crown Court has the effect of denying justice, particularly to victims. I do not believe there is any alternative to dealing with the backlog. When I have encountered it in the past, I have found that it gets worse if it is not dealt with, because it has a spiralling effect as people game the system. There is nothing new in making an adjustment, and it is a question of detail as to how this adjustment is best made. I am very grateful to the Minister for his engagement with us to discuss the various amendments put forward in our names.

The purpose of Amendment 2 is to probe two areas. The first is to work out the way of getting the greatest possible consistency across the country on which cases are retained in the magistrates’ courts and which go to the Crown Court. The second is an issue that has not much been debated so far: are the cases that are retained in the magistrates’ courts to be decided by three magistrates or by judge alone—that is, by a district judge or deputy district judges? Before I turn to that in a little more detail, it is important to explain the background. Because these reforms have been put forward without the very detailed and careful analysis that the noble and learned Lord, Lord Leveson, put to his recommendations, at present it is not possible to work out the best way to proceed.

I will briefly explain the present position. The position as to allocation is set out in Section 19 of the Magistrates’ Courts Act, which simply requires the court to decide whether it is more suitable for trial on indictment or summary trial on the allocations issued by the Sentencing Council. Those allocation guidelines are drafted against the current sentencing powers of the magistrates. In essence, they say that cases should be tried summarily unless the outcome would clearly be a sentence in excess of the court’s powers, after taking into account personal mitigation and potential reduction for guilty pleas. The guidelines go on to say that cases of unusual factual complexity should be tried in the Crown Court. Those are exceptions—the rest are to be tried in the magistrates’ court, if they are within its sentencing powers —and such exceptions are likely to be narrow and rare. So at the moment the guidelines are structured so that the potential sentence is determinative of the way the case should be tried. The question is: is that the appropriate way to continue?

The second issue is the distribution of work in the magistrates’ courts. The way in which work is distributed in the magistrates’ court is governed by the listing practice direction issued by the Lady Chief Justice last month. That direction followed what was, in essence, the product of work done in 2012 by a group chaired by Lord Justice Gross, with representatives of the magistrates present and the senior district judge in HMCTS. It sets out the presumptions for trial by district judges, including long cases. It also provides for a share of routine business and for the occasional sitting of mixed Benches.

The question that arises is: should we say that these are matters for the Sentencing Council and for the practice direction issued by the Lady Chief Justice, or should Parliament prepare guidelines and issue those through the Secretary of State or the Lord Chancellor? At the moment it is not possible to be more specific about the way in which the guidelines might operate. We do not know at present the basis of the figures that have been used to calculate the savings in time. Is it assumed that magistrates will operate the existing guidelines, primarily determined by the sentencing powers that they have? Secondly, the distribution of work between the magistrates and the district judges and deputy district judges is not clear, because although large numbers of magistrates are being recruited, there is a substantial recruitment of deputy district judges and district judges. Both those issues are important. We need to decide whether guidelines should be made.

In her Amendment 1, the noble Baroness, Lady Chakrabarti, supported by the noble Viscount, Lord Hailsham, has proposed that matters such as good character should be taken into account, but there may be other matters that need to be looked at. For example, one needs to bear in mind that, as the noble and learned Lord, Lord Leveson, recorded at paragraph 38 of chapter 5 of his report, there were concerns about how ethnic minorities would view changes of this kind. That would be a very difficult matter, if it was a matter to be taken into account, to be dealt with other than by Parliament.

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Moved by

[Lord Thomas of Cwmgiedd]

4: Clause 1, page 3, line 31, at end insert—
“(7A) After section 22A (low-value shoplifting to be a summary offence), insert—“22B Reclassification of summary offences(1) Within six months of the day on which the Courts and Tribunals Act 2026 is passed, the Secretary of State must carry out a reclassification of summary offences and in doing so must have regard to—(a) whether the offence carries a maximum sentence of two years or less, and (b) the indicative list of offences contained in Annex G to the Independent Review of the Criminal Courts by Lord Leveson, dated 18 June 2025.(2) The Secretary of State must, by regulations to be made by statutory instrument, specify the offences which are triable as summary only offences following the reclassification exercise in subsection (1).(3) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.””

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I have introduced—at some length, I regret to say—the problems that have arisen because we do not have enough information to decide the best way of dealing with the current crisis in the courts. This is another alternative put forward to your Lordships for consideration. I intended to give an explanation, but it was left out of the printed paper. The amendment would provide parliamentary authority for the transfer of a greater range of specific offences, as well as greater certainty, while reducing the pressure on the Crown Court.

The amendment envisages the reclassification of summary offences. The origins of this lay in a submission made to the noble and learned Lord, Lord Leveson, by the Bar Council, which supported the increase of sentencing powers to two years—although, given its confidence in district and deputy district judges, only if such cases were heard by them. The Bar Council also identified a series of offences that it said should be reclassified as summary-only. The noble and learned Lord, Lord Leveson, carefully looked at that and came up with his own view, which is set out in chapter 5 of part 1 of his report.

In essence, he suggested the restriction of the right to elect by removing it from “either way” offences that carried a maximum sentence of two years. In addition, he identified a pool of additional offences based on the average custodial sentence length that they typically received, with other factors pointing to the magistrates’ courts being a proportionate forum. The list of those is set out in annex G and includes possession of controlled drugs up to a certain value, making off without payment—for example, the theft of a pedal cycle—breach of an ASBO, and various other matters. The number of offences is very large and I do not want to take up time by reading them all out.

There is, plainly, a block of offences that could sensibly be reclassified. We urge the Government to consider this, for a number of different reasons. The way in which this proposal is put forward rests on the ways it could be done, but there can be no doubt that the limits in the current summary-only system are out of date and that there is a good case for putting into it a value—for example, in relation to drugs or quantity—which could be used in a number of different ways.

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

My Lords, as this is the first time I have got to my feet, I thank all noble Lords for meeting me and for the various discussions we have had. In relation to this amendment, I thank the noble and learned Lords, Lord Thomas of Cwmgiedd, Lord Burnett, Lord Phillips and Lord Bellamy, for meeting me yesterday specifically to talk about their amendments. I hope we can continue that conversation.

Amendment 4, from the noble and learned Lord, Lord Thomas of Cwmgiedd, seeks to reclassify certain triable “either way” offences to summary-only, in line with the recommendations, as he said, of the noble and learned Lord, Lord Leveson, in his independent review. The Government considered the recommendations of the noble and learned Lord, Lord Leveson, but concluded that they would not result in significant sitting day savings and would carry risks for the wider justice system and public protection. I know noble Lords will say in response to that that the Government are obsessed by backlogs and sitting days, and I shall address that point in my remarks in a moment.

Offences that are triable either way are, by definition, treated as sufficiently serious to warrant the possibility of longer sentences and broader police and prosecution powers, including longer investigatory time limits. None of the noble Lords who have spoken to this amendment has addressed this specific point and it is one that we will need to return to in the discussion of reclassification.

Reclassifying offences as summary-only—as I said, the Government have considered this—would restrict important operational powers and reduce maximum sentences for those offences to six months. This would be particularly concerning in domestic abuse cases, including breaches of protective orders. We do not believe that it would be right to constrain the justice system by restricting the investigative period when the protection of the public and victims is at stake. Tackling violence against women and girls remains a top priority for the Government, of course.

Nevertheless, we recognise the benefits of retaining more cases in magistrates’ courts because of their efficiency, which is why, as we discussed on the first group, we are bringing forward measures to remove the right to elect and to increase magistrates’ court sentencing powers, which we will return to later today. This will deliver many of the same benefits as reclassification without undermining the protections and powers attached to offences that are triable either way.

I want to address comments made by several noble Lords, on this group and the previous one, that the Government’s only concern is the backlog. I want to be completely clear, as my noble and learned friend Lady Smith was: of course the Government are committed to fair trials. That principle is completely intact and inviolate in the Government’s thinking on this. Our concern with the backlog is perhaps better expressed as being about waiting times and their impact on victims’ experiences. The backlog is a problem for administrative reasons, but it is much more important for victims of crime.

We do not think, as a matter of principle, that defendants should choose their own mode of trial. However, I am happy to continue the discussion with the noble and learned Lords, Lord Thomas and Lord Leveson, and others, on the suggestion for reclassification.

On Amendment 51, I recognise that the intention of the noble Lord, Lord Marks, is to increase use of out-of-court resolutions, which can provide an effective and robust alternative to prosecution. I do not think the phrase “out-of-court resolution”—or, with respect to the noble and learned Lord, Lord Leveson, the word “diversion”—will travel very well on the streets. We want to ensure that, in the circumstances described by the noble Lord, Lord Marks, justice is done rapidly for the vulnerable people he spoke about, including vulnerable parents. My preferred description, for further revision if necessary, is “rapid justice” that addresses the root causes, which was the point the noble Lord made. I agree entirely with his comments about parents.

The Government are not suggesting, and would not support any suggestion, that the use of out-of-court resolutions amounts to decriminalisation or making those offences irrelevant. That is not our view. Keeping your children from school is an offence but we think it can perhaps be addressed in the way that the noble Lord, Lord Marks, suggested.

The noble Lord, Lord Macdonald, referred to youth justice. The Minister in the other place, Jake Richards, is concerned about addressing root causes in his work on youth justice. I thank the noble Lord and the noble and learned Lord, Lord Leveson, for their reference to restorative justice, which is an important area where much could be done.

Let me set the position out clearly for the noble Lord, Lord Marks. The Government are committed to strengthening the use of out-of-court resolutions and diverting low-level offenders away from court with conditions that address the underlying causes of crime and therefore reduce the risk of future reoffending. However, the police are already required to assess whether the public interest can be served by an out-of-court resolution instead of prosecution. Prosecutors also make this assessment when making prosecution decisions. Courts also already have the power to inquire about an out-of-court resolution and CPS guidance provides that, where the prosecutor in court concludes that such a resolution is appropriate, the matter should be referred to the police and an adjournment sought.

An additional duty on the court would therefore duplicate these processes—I think this is the point that the noble and learned Lord, Lord Keen, was making—and may add unnecessary delay. However, as outlined in the Government’s response to the recommendations from the noble and learned Lord, Lord Leveson, we are urgently examining the legislative and delivery framework for out-of-court resolutions to ensure that it supports our ambitions and that such resolutions are considered whenever appropriate.

Although I cannot at this stage support the amendments in this group, I was grateful for the opportunity to meet the noble and learned Lord, Lord Thomas, and others to have a constructive discussion on these issues. Although the Government have, for the moment, reached a different conclusion on these proposals, I look forward to continuing those discussions and to further discussing the question of out-of-court resolution with the noble Lord, Lord Marks. With these reassurances, I therefore ask the noble and learned Lord, Lord Thomas, to withdraw his amendment.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I thank all who have participated in this short debate. There are no easy answers to dealing with the backlog. There have to be compromises along the way, which we have discussed in the previous debate and in this one. We appreciate the problems that arise by classifying as summary-only, as regards the way that the police should be required to act with greater expedition, but we did not intend by this reclassification to suggest a reduction in the maximum sentence, which would be below two years if the Government take those powers under the Bill or one year if they do not. However, I am very grateful to all who have spoken about it and I hope we can look at this again.

I am most grateful to the Minister for our discussions yesterday and our continuing discussions in relation to finding an answer, because what is critical is that we end up with something certain, so that we produce the same result in every postcode, and that we do not get appeals. We cannot have appeals on the question of allocation.

Also, on the suggestion by the noble Lord, Lord Marks, on out-of-court resolution, I think I can recall this subject going back at least 20 years. One of the problems has been in getting some system to bring together the magistrates, the police and the prosecution service. One suggestion—this was probably 15 or 20 years ago —was that magistrates should play a role in looking at the way in which local police forces dealt with out-of-court disposal. That was never proceeded with. There are lots of other ideas, but it is plainly part of the system of justice that we get out-of-court disposals correct. It is not decriminalisation; it is finding a means of an effective deterrent for future criminality, rather than sending people into the criminal justice system. I welcome the proposal raised by the noble Lord, Lord Marks, and hope we can carry it further. With those observations, I beg leave to withdraw my amendment.

Amendment 4 withdrawn.

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Moved by

[Lord Thomas of Cwmgiedd]

6: After Clause 2, insert the following new Clause—
“Legal aidUnder powers contained in the Legal Aid, Sentencing, and Punishment of Offenders Act 2012, regulations made by the Lord Chancellor must provide, no later than the day on which this Act is passed, that—(a) a defendant’s eligibility for legal aid, and(b) the remuneration paid to providers of legal aid services,is calculated on the basis applicable in the Crown Court, irrespective of whether the matter is heard in the magistrates’ court or the Crown Court.”Member’s explanatory statement
This amendment is intended to harmonise legal aid eligibility, and the remuneration of the providers of legal services, irrespective of whether an either way offence is retained in the magistrates’ court or sent to the Crown Court, thus reducing the risk of unrepresented defendants in the magistrates’ court.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I had hoped that the noble and learned Lord, Lord Bellamy, would have been able to be present today, but unfortunately circumstances have made that impossible, so I am afraid noble Lords are going to have to hear from me again.

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[Lord Lemos (Lab)]

My Lords, my answers are always unambiguous.

Amendment 6, tabled by the noble and learned Lord, Lord Thomas of Cwmgiedd, would apply Crown Court legal aid financial eligibility rules and pay Crown Court-level fees to providers for triable “either way” offences, even if that case takes place in the magistrates’ court. Amendments 8, 67 and 75, from the noble Baroness, Lady Jones of Moulsecoomb, would extend the same financial eligibility criteria which were applied at the Crown Court to proceedings heard at the magistrates’ court, and provide for these changes to come into force before implementation of the Bill’s wider provisions. The noble Baroness laid some emphasis on that, as did the noble Lord, Lord Marks, and I heard the strength of feeling on this subject at Second Reading.

These four amendments are not limited to triable “either way” offences impacted by the removal of the right to elect a Crown Court trial. The effect would therefore be to apply Crown Court rules on legal aid financial eligibility to all defendants and cases in the magistrates’ court, including all summary-only cases. Under current financial eligibility rules, the majority of defendants—something that the noble Baroness, Lady Jones, referred to—charged with triable “either way” offences would be eligible for legal aid at the magistrates’ court. That tells you something about the social make-up of who appears in our magistrates’ courts.

For individuals who do not financially qualify for legal aid, there are already measures in place in the magistrates’ court to provide support. The hardship review mechanism can provide legal aid to some individuals who fail the means test but face higher than usual outgoings. In addition, unrepresented defendants may access the free magistrates’ court duty solicitor scheme, which may provide legal representation at the first hearing for those charged with an imprisonable offence.

None the less, we have been listening carefully to the concerns raised at Second Reading around eligibility and the potential impacts of reform on litigants in person, as mentioned by the noble Lord, Lord Macdonald. We have accepted in principle the recommendation of the noble and learned Lord, Lord Leveson, to increase the legal aid income thresholds at the magistrates’ court. In so doing, we recognise the importance of ensuring that legal aid is available for those who need it most, and the financial eligibility thresholds reflect this. I think that is fairly unambiguous. Once court reforms introduced by the Bill have been fully implemented, we will be better placed to take final decisions on income threshold levels, subject to future funding decisions and operational considerations. I have no doubt at all that the noble Baroness, Lady Jones, the noble Lord, Lord Marks, and others will press us on that point, but I am repeating the formulation that I used at Second Reading. We are also examining the measures that are currently in place for litigants in person and considering additional options for support.

I think noble Lords would acknowledge that amendments to align Crown Court and magistrates’ court eligibility would add complexity to the magistrates’ test through the introduction of a contributory system which assesses income and capital. This may negatively impact efficiency in the magistrates’ court and create additional administrative burdens. I spent some time this morning reading about how this works, and it was interesting.

In relation to remuneration for legal aid lawyers in Amendment 6, I am afraid that, with regard to the point made by my noble friend Lord Shamash, I do not think that we will be paying legal aid lawyers the same rates as lawyers in the City are paid—but then the job is much more interesting. I say that as someone who worked in the City for quite a long time.

Fee schemes are specific to the court where the case is heard and are designed to reflect the differing processes and nature of work in the magistrates’ court and Crown Court. The magistrates’ court fee scheme is designed to be simple to administer and for providers to use, reflecting the greater speed and case volumes through that court. There is also a non-standard fee route for cases in the magistrates’ court, which ensures that work on complex cases is appropriately remunerated. I hope I have set out where the Government stand on that and demonstrated that the Government have listened. With that, I would ask the noble and learned Lord, Lord Thomas, to withdraw his amendment.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I am grateful to all noble Lords who have spoken of the importance of this point—the noble Lords, Lord Macdonald, Lord Shamash, Lord Jabbar, and Lord Marks of Henley-on-Thames, the noble Baroness, Lady Jones of Moulsecoomb, and the noble and learned Lord, Lord Keen. Although we welcome what the Minister has said, we all regard it as imperative that, if the more serious work is being transferred, that should be done simultaneously with a change to legal aid. That is critical. We cannot wait, because it will cause problems in the magistrates’ courts and with magistrates’ courts recruitment—a point particularly made by the noble Lord, Lord Shamash. It is getting very much more difficult to find people prepared to do magistrates’ courts solicitors’ work. Of course, the Government could not afford to pay City rates; that is out of the question. But at least pay a decent rate for the hard job people do, to encourage them to come into that part of the profession. I agree with the Minister: much of the work is far more interesting than working on infinitely uninteresting schemes in the City.

I wish also to thank the noble Baroness, Lady Jones of Moulsecoomb, for her amendments and also for pressing the point about getting eligibility brought into line. Maybe the answer is to look at the complexity and see whether that can be simplified as well. With those remarks, I thank noble Lords and beg leave to withdraw the amendment.

Amendment 6 withdrawn.

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

My Lords, this group is primarily concerned with one central proposition which was raised at Second Reading, not really opposed and notably supported by the noble Lord, Lord Carlile of Berriew—that it should be open to a defendant to opt for a “judge alone” trial in the Crown Court where the trial would otherwise be a trial by jury.

Amendments 12 and 13 are alternatives. Amendment 12 would prevent an order for a “judge alone” trial being made on the application of the prosecution or by the court of its own motion. We all spoke at length on that in the previous group. Amendment 13 is different: it would permit a defendant to apply for a “judge alone” trial in a case which comes within Clause 3, even if otherwise the trial might have been tried by a jury.

There may be cases—we can all think of some—where a defendant might think that a trial by judge alone might be more objective than a jury trial, notably where there has been extensive pre-trial publicity and the defendant might feel prejudiced by its effects. Amendment 32 in the name of the noble Lord, Lord Carlile, mentions other factors that might affect the interests of justice. Exceptional complexity is one, although in a sense that is tautologous because within Clause 3 exceptional complexity ought to be a given. Another factor is the risk of jury intimidation. National security considerations may appear far-fetched but, in view of some of the things going on at the moment in the national security field, they may be important. In such a case it is argued, and I think not seriously gainsaid, that it would be illogical to deny the defendant the right to seek a trial by judge alone even where the case would otherwise come under Clause 3. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will speak briefly to the amendment in my name, supported by the noble and learned Lords, Lord Phillips of Worth Matravers, Lord Burnett of Maldon and Lord Bellamy. Ours is a much simpler amendment: it seeks to enable a defendant, where the conditions are met, to apply for trial by judge alone. If the judge is satisfied that it is in the interests of justice, the defendant should be accorded that right.

There are parts of the Commonwealth, in particular Canada, where defendants like trial by judge alone. If a defendant wants a trial by judge alone, why should he not be entitled to it, if the judge thinks that it is in the interests of justice? The protection of a jury trial is for the defendant’s protection, by and large; the public interest, if the judge were to give accord to trial by judge alone, would be satisfied by detailed reasons being given. There may be many reasons why a person would like a trial by judge alone.

It seems to us that this amendment should at least be considered, if a defendant wants it and if it is in the interests of justice. The reason for the latter restriction is to counter the point made by the Government that it is for the court to decide the mode of trial. If the court is entitled to decide it by reference to the interests of justice, then it is the court’s decision.

There is a second reason for that. It would be possible, as the amendment from the noble Lord, Lord Carlile, sets out, to specify a number of circumstances. Generally, in my experience, if we are embarking down a route such as this, it is better not to lay down tramlines or even fairly tight guidelines but to allow the law to be developed by the courts. However, there are cases where someone may properly decide that this is the case they would like heard by a judge and it is not a case where it would not be in the interests of justice for that request to be acceded to. I find it difficult to see why, if someone wants a trial by judge alone and the judge, in accordance with principles that have developed, decides that that is right, he should not be entitled to that if it is in the interests of justice.

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[Baroness Jones of Moulsecoomb (GP)]

The noble and right reverend Lord has uttered what amounts to blasphemy in this Chamber. He said that tradition must be renewed. Had your Lordships’ Chamber been full, he would have been booed soundly. I think that tradition has to be renewed, but sadly this House tends to resist.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will briefly speak to Amendment 31 standing in my name and those of other noble and learned Lords. It seeks to add to the category of case that could be tried by judge alone, and we put it forward for consideration. There are offences that take a long time to try in the Crown Court: health and safety at work is one example, and environmental protection is another. We would have added trading standards had the legislation not been so complicated that the amendment would have taken a lot of paper to put all the bits of legislation down. We therefore put forward these two examples as illustrative only.

We restricted this amendment to cases where the defendant is a corporation. These are offences that, in effect, turn on issues of fact and expert evidence. If one is concerned only with a corporate defendant, the concerns about removing trial by jury are much less. As the whole Bill is directed at trying to improve our system of justice, can we look at this as another means of reducing pressure on the Crown Court? It is something that we ought to consider. We put this forward as one of the ideas that ought to be put into the melting pot, because we are surely in a melting pot situation. I will say no more about this amendment, but may return to it at a later stage.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I oppose Clause 3. I am particularly concerned that the Government are presenting it as a practical measure to tackle delays when the evidence suggests that it will make very little difference. The Government’s own impact assessment estimates that these provisions will save just 200 Crown Court sitting days a year—around 0.18% of current Crown Court capacity. That is a tiny return for such a huge change to the way that criminal justice is delivered.

There is also no good reason to assume that removing juries will necessarily make these trials shorter. Judges sitting alone will still have to consider the evidence and, in complex fraud cases, they may have to produce lengthy reasoned arguments. Juries also provide an incentive to keep trials properly focused and evidence clearly presented. Fraud cases often turn on questions of fact, including whether someone acted dishonestly, and juries are well placed to judge dishonesty. The independent review by Jonathan Fisher KC found that juries can deal with complex fraud cases when trials are properly managed and presented. He warned that removing juries from serious fraud trials would send the wrong message about the seriousness of fraudulent misconduct.

There is something else in this clause that really concerns me, which is the power of the Secretary of State to add further offences to the list. In your Lordships’ House we get a little fed up with statutory instruments that bring in more and more power to a Bill that we have already passed. Although these initial provisions cover financial crime and related offences, the scope can be widened through secondary legislation. It is a very real risk that restrictions on jury trial will extend beyond the cases the Government are currently talking about. Jury trial is not an obstacle to be removed whenever a case becomes difficult or lengthy. It is an important protection against the concentration of judicial power and a vital part of public participation in the justice system.

Courts and Tribunals Bill

Lord Thomas of Cwmgiedd Excerpts

2nd reading
Tuesday 27th October 2026 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I welcome the Bill for two principal reasons. The first is Clause 17, which brings the courts and tribunals under the leadership of the Lady Chief Justice. We cannot underestimate the importance of firm, single leadership and the long-held need by the judiciary for the reversal of the mistakes that were made in 2003, 2005 and 2006, when the leadership was split. I therefore welcome this change. We can already see the effect of this decision by what is happening in the tribunals. For example, there is a great increase in the number of disposals being made in the Immigration and Asylum Chamber.

Secondly and more importantly, I welcome the commitment to the structural reform to the criminal justice system that is being proposed. I have no doubt that structural reform is needed. Greater focus on good leadership, greater efficiency and, above all, greater resources will make a big difference, but they cannot on their own cure the problems so clearly identified by the noble and learned Lord, Lord Leveson, in his independent reports and in the update since then. In short, we would delude ourselves if we thought that structural change was not necessary. Change has been regularly carried out over the centuries of the history of our criminal justice system. We are at a time when structural change is again necessary. Our task in this House is therefore to subject these proposals to careful scrutiny so that we can be satisfied either that the Government have made the right choice on structural reform in this legislation or that we feel modifications need to be made.

There are three areas that I believe should be examined; I will take them in turn. First, there is the choice of the type of court to try the less serious cases that presently go to the Crown Court. This is not an easy question. The difficulty is shown by an examination of the options that have been considered. I am glad that trial by judge alone in the Crown Court was, rightly, abandoned by the Government.

Trial by judge and two magistrates was an intermediate type of court proposed by Lord Justice Auld as long ago as 2001, by the noble and learned Lord, Lord Leveson, in his reports, and favoured with all the evidence clearly set out by the Times Crime and Justice Commission. I considered that the right solution in 2001, and everything that has happened since has strengthened my view that that was right. I very much hope that this is something that we can examine during the passage of the Bill through this House.

The other option is trial in the magistrates’ courts, either by three magistrates or—I emphasise this—by judge alone. With greater sentencing powers being given to the magistrates’ courts, what we have, in effect, is an increase in the compulsory jurisdiction of the magistrates’ courts.

Looking at those options, we also have to take into account the issues that have arisen about who is to make the choice of where the case is to be tried. More importantly, we have to look at the choice of the criteria to be used in making the decision as to where the case is to be heard, and the role of Parliament in setting the criteria and the way the choice is to be made. Should we, for example, reclassify offences such as those that are trialled in the magistrates’ courts, which is not what the Bill proposes? Should we retain the present system of “either way” offences, making the decision principally on the basis of the likely length of sentence, with other criteria taken into account? Are the criteria that should be taken into account clearly set out? And is account to be taken as to whether the trial is to be for three magistrates or judge alone?

I believe that our task is to look at this in some detail, but principally at how the allocation between the magistrates’ court and the Crown Court under the governance proposals is to be made. To fulfil our role, I believe that we need to know much more about the impact of the decisions on the magistrates’ court and the Crown Court, and much more about the criteria that are to govern the decision as to whether the case is to stay in the magistrates’ court or be transferred to the Crown Court. If it is to be retained in the magistrates’ court, we need to know whether there is to be any change in the position as to which cases are to be heard by a district judge—as that will be trial by judge alone—or by three magistrates. These are difficult issues that need our careful scrutiny.

Secondly, I turn to the question of appeals. I have no doubt that a system for appeals where there is no restriction on the right to appeal has rightly been abandoned across the entirety of our system elsewhere and in many other countries in the world. It is now the time to reform that in the interests of efficiency and of victims. The Bill is plainly right in principle in requiring a permission stage. However, we need to scrutinise this reform, about which there is so little detail as to how it is to work.

For example, as the grant of permission will depend on the decision of the judge reviewing the papers on the strength of the argument as to the safety of the conviction or the length of the sentence, what is to be done about improving the way that magistrates and district judges record their decisions? When will the provision of a transcript be properly made? We will also require the provision of an office system for this work. The Court of Appeal Criminal Division could not function without an office and I do not see how this reform can function without such an office. We have no details at all. Also, what is to be done by way of legal aid? Are defendants who are convicted to get the same right to legal aid for advice as they have in the Court of Appeal Criminal Division? All this will take time, and we need to know the timescale. This is a vital change on which too little attention has been focused.

I turn to the third aspect, which is trial of fraud and other complex cases. The way in which transactions are effective is almost invariably recorded in written or digital format. The issue in such cases is one of honesty. In complex transactions, it is my experience that the issue of honesty is best determined in the context of a full understanding of a business background. That is why there is so much to be said for the recommendation made by Lord Roskill as long ago as 1985 for a trial by judge and two lay members with business and financial expertise. That would be the ideal solution. In the absence of that, I think justice is better served by trial before a judge, who will have a better and fuller understanding of the business background.

Prison and Probation Service

Lord Thomas of Cwmgiedd Excerpts

Thursday 17th September 2026 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, it is a very special privilege first to have listened to the speech of my noble and learned friend Lord Leveson of Liverpool and now to have the chance to add a few remarks. I wish first to convey the apologies of my noble and learned friends Lord Burnett and Lord Phillips of Worth Matravers. Events elsewhere have detained them, and they are unable to be present, but I have that pleasure.

It is now more than a quarter of a century ago that, as what I still think of as youngish judges—though, alas, no longer so, I think I can safely say—we started to work together with responsibility for the circuit system and, in particular, for the way in which criminal justice was administered by the courts under the leadership of that great Chief Justice, Lord Judge. Lord Judge would have been especially proud and delighted to have been here today because he would have seen this as an inevitability.

Like Lord Judge, my noble and learned friend Lord Leveson had enormous experience of the common law across all its aspects, but particularly in criminal justice, and he brought that experience to bear both in trials and on appeals, and, as importantly, in the leadership he gave in the successive appointments he held to improving the criminal justice system, and in the many reports and reviews he has conducted to that end. But his experience is much wider. I have not the time to go through it all, but one particular example occupies the time of your Lordships’ House from time to time, and that is his work as the Investigatory Powers Commissioner. He is a man of enormous talent and will bring huge benefits to this House.

I need have said none of that, because the proof of what he will bring is in all your Lordships’ expectations, which were amply justified but which, modestly of course, he said he was a little worried he might not live up to. His mastery of the criminal law and the criminal justice system is enormous. Indeed, I found over that quarter of a century that I almost always agreed with everything he said. I can take the opportunity of saying so today because I do not wish to add to, and could not possibly improve upon, his analysis of the difficulties facing the criminal justice system.

Like other noble Lords, I am extremely grateful to the noble Lord, Lord Farmer, for obtaining this debate and for the many speeches that have been made about what needs to be done. The list is almost endless. I want to address one overarching problem, and that is what we can best do with what money we get.

I recall some years ago that this was exemplified by the first matter we have to address, and that is rigid discipline over money—no doubt noble Lords will fear that I have gone over to the Treasury’s side, or should I say the dark side? But it is important to have discipline. In the last Labour Government in the early 2000s, I remember that when reforms were thought of, you had to prove what effect it would have. This was then checked by the Home Office. There was something called the Home Office model, which showed that if you created an offence, it would need so many more prosecutors, so many more judges, and so many more prison places.

I deeply regret that we do not do the same now on the most important aspect, which is at the heart of today’s debate: the massive increase in prison sentence lengths of which everyone has spoken. The first thing we must do is bring back a fiscal discipline so that we know what money we have, because only with knowing what money we have can we do things properly. The late Lord Judge and I were bitterly critical of the constant increase in sentence lengths without consideration of how this was to be paid for without either putting prisoners into squalid conditions or cutting the really good things that are done in prison—in particular, education. That is the first fundamental question. We need to work out what we can pay for with the money available.

The second fundamental question is then to explain to the public what we are capable of doing. This is a shared endeavour of us all because we cannot go on as we are. It seems to me that we must return to, first, truth in sentencing. If the judge says, “You get five years and you spend half of that in prison and half in the community”, that is what we should deliver, but we have had to go away from that because we have not told the public the truth—that there is only a limited amount of money available and we can do only so much with it. I hope this fundamental question will be grappled with by us all.

I warmly commend the Government on what they have said about IPPs. It has taken huge courage and a sense of justice to do it. The greater task ahead is to adopt the same attitude to explaining to the public that if this is the money available, this is all we can do, prison sentences must come down and we must use prison spaces more effectively, and they will be better for that. That is the next task facing this Government.

Holding the Line Against Tyranny and Anarchy (Constitution Committee Report)

Lord Thomas of Cwmgiedd Excerpts

Thursday 9th July 2026 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

As the first person to speak this afternoon who can claim no part whatever in the production of this report, I independently express my view, and the views of many to whom I have spoken, on its excellence and that it needed doing and that what it said needed saying. All those who produced it deserve a great thank you. Having said that, I want to deal with one topic, partly to reinforce the strength of this report in one minute area. I will draw on what I have observed happening elsewhere in Europe, and on how steps have been taken to undermine the rule of law; we must learn from that. The central lesson we learn is that those who seek to undermine the rule of law make the judiciary the prime focus of their plans and actions.

I will give your Lordships three examples. First, you weaken public confidence, primarily through attacking judges through the media, exploiting inefficiency in the courts or delays, and attacking what might seem incautious decisions or incautious extrajudicial statements. The second is undermining the self-governance and unitary structure of the judiciary. The third is appointing compliant candidates to high judicial office and then using disciplinary proceedings and other measures to remove strong judges. These are the means that are used, of which there are readily available examples, particularly in Hungary and Poland, of what has happened in neighbouring countries in the last few years. It has all been done, as the noble Lord, Lord Foulkes, pointed out, subtly, and in some cases with considerable success.

Now, why should we bother to learn from elsewhere? We have our long traditions and our conventions. We have the Constitutional Reform Act; its author, the noble and learned Lord, Lord Falconer, is here. So we say, “Why bother?”, but I think we should. I will look at four matters.

First, the area where we really do need action, and where the report underlines the need for action, is communications. The Judicial Office’s press office was set up by the noble and learned Lord, Lord Woolf, with the help of Sir Hayden Phillips, just as the Act came into existence. But there is a need to keep it up to date. The media has changed beyond all recognition and therefore I strongly endorse what is said at paragraph 123 of the report in the message it sends to government and the judiciary. The Government, it appears from paragraph 36, have got the message. I hope the judiciary will get it too, because it must appreciate that if it does not take responsibility for the way it communicates, someone else will do it for it. It is an important lesson that must be learned.

The second is the effective and timely running of the courts. Resources play an immense part in the way in which you can administer justice. But judges have a responsibility too—a responsibility from which they cannot run away. They need to put right things that are wrong or systems that do not work. Here, the Constitution Committee, maybe not in this report, but generally, has played an important role by holding judges to account for anything that has gone wrong in the courts. That holding to account is extremely beneficial because it enables the judges, in a neutral forum, as Parliament is for them, to point out what the problems are, which so often are a lack of adequate resources. Here is an important role of the Constitution Committee.

The third matter to which I wish to refer is protection against attacks on judges. The report is more than 100% correct—if there is such a concept—at paragraphs 112 to 114 in drawing attention to this. But it is important that restraint is shown by everyone concerned. The judges have to be as careful as media magnates and Cabinet Ministers should be. It is a very important principle. If there are mistakes made, you put things right quickly, as has been done so successfully by the Lady Chief Justice in recent weeks, and people can see that. Those are things where the Constitution Committee sends an important message and has an important role.

I will touch briefly on other areas where I think we should be careful. First, on appointments, the JAC is extremely important, but its role is not properly understood, and the first step of any Minister who wishes to subvert the judiciary is to get control of appointments. We need to make certain that the appointments commission is strong. Secondly, on discipline, by the system that was devised for disciplining judges, we have shielded ourselves from the accusation that people such as Mr Berlusconi could make—that the judges look after themselves. But the operation of the system needs careful monitoring. The third is self-governance of the judiciary. I strongly welcome what is in the Bill, which I hope will be taken forward at least in this respect, to bring together the courts and the tribunals. It is important that the judiciary is unified.

What conclusion should we draw as to the role of the Constitution Committee? I hope it can, over the years, keep an eye on the examples we see elsewhere and on the matters on which we need to keep an eye. It is very important that, when the heads of the judiciary and Ministers come, a health check is made of each of the aspects that safeguard the independence of the judiciary. Perhaps I could persuade the noble Lord, Lord Strathclyde, and his successors to take up this role, because vigilance, as has been said so strongly, is absolutely essential. We need not merely to say it, we need a mechanism, and that mechanism should be the Constitution Committee.

King’s Speech

Lord Thomas of Cwmgiedd Excerpts

Monday 18th May 2026 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, in the gracious Speech, there are two matters where constitutional principle relating to our justice system requires particular scrutiny, and they also require scrutiny in relation to the strength of our union.

First is lay participation in our Crown Courts. The jury and the magistracy have been an essential part of our constitutional structure for centuries: they date back in statute to the 13th and 14th centuries. They are a hallmark of our system of justice, underpin its worldwide reputation and give the public confidence in the administration of justice. There is nothing I have seen that can possibly be taken as an excuse for dismantling that constitutional principle.

If you read carefully the report of Sir Brian Leveson’s second volume, you will see that the causes of the problem are multifaceted but that each of them is capable of remedy. One of those issues is productivity, with which we are all familiar. The decline in the productivity of the Crown Courts, measured by the time of sitting days over the last 10 years, has been 16%. We are used to remedying this and must do so. I am glad the Government are committed to making more resource available, and I hope I can have confidence in the Minister and the Government in taking these necessary steps, so we do not destroy what underpins our justice system, namely lay participation.

Second is constitutional principles relating to the police and the great reform that is now being undertaken. There are two of particular importance: that the police are operationally independent from local and central government—just as the prosecutor, the justices and the judges must be—and that the police have and must continue to have a discretion as to the way in which they enforce the law. I hope very much that the Bill will underpin those two principles, just as principles are underpinned in the Constitutional Reform Act 2005 in respect of the judiciary. I also hope that, when we look at police reform, we will look with particular care at the way in which the police have been governed over the past century or two and learn from the mistakes that have been made.

As to Wales and the strength of our union, I hope the Government will now see what, on occasion, I have raised in this House: the need for the devolution of justice to Wales. Wales is a small country, it has effective and efficient courts, and it certainly had them before this Parliament abolished them in 1830. Secondly, I have no doubt that, if policing is to be properly reformed in Wales, it must be tied very closely to the way in which the rest of the government of Wales is conducted.

Victims and Courts Bill

Lord Thomas of Cwmgiedd Excerpts

Consideration of Commons amendments and / or reasons
Wednesday 15th April 2026 Lords Chamber

Motion E would mitigate the injustice of an unduly strict 28-day time limit on seeking such a referral. As the Minister said, the Motion would enable an extension of time where the interests of justice so require, while the six-month long stop would respect offenders’ right to finality in knowing the sentence that they are to serve. I am very grateful to the Minister for her acceptance of our suggestion that six months should be the time limit, and the gracious way in which she dealt with that today. These amendments will make the unduly lenient sentence scheme a much more effective and just protection for victims and their families than the scheme as it has operated to date. We are very grateful for what the Government have done to ensure that happens.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, on the Motion that has been proposed as regards private prosecutions, it is very urgent that this is brought into effect as soon as possible. If the proposal goes ahead for an extensive consultation of the kind envisaged, together with impact assessments and responses, I fear this would be a regrettable move, given the tremendous impact on the criminal justice system of the loss of funds.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I now call the noble Baroness, Lady Brinton, to make a virtual contribution.

Victims and Courts Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage
Tuesday 10th March 2026 Lords Chamber

[Lord Russell of Liverpool (CB)]

My Lords, I will comment briefly on Amendment 29. During the passage of the Sentencing Act, we discussed the concern about early release schemes for those categories of offenders in some detail. As a result, about two weeks ago, the Minister, the noble Lord, Lord Timpson, kindly had a meeting after the passage of the Act. The Domestic Abuse Commissioner, the Victims’ Commissioner and the noble Baroness, Lady May of Maidenhead, were there to talk to the Minister about our concerns.

The outcome of that—had I thought of it, I would have spoken to the noble and learned Lord, Lord Keen, to inform him—is agreement by the MoJ to form a working party with the offices of both the commissioners and their teams to review the scheme and the training of the Probation Service and start using some of the expertise of the third sector and its knowledge of the perpetrators and experience of the victims. That will be fed into the training of the Probation Service. There is a very positive move going on within the MoJ which I hope and think will directly address the concerns the noble and learned Lord mentioned when he was speaking to Amendment 29.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I have a brief observation about Clause 12. The costs of private prosecution mean that money disappears from the overall Treasury contribution to the justice system. I think we should pause long and hard before we remove the power of the Government to control those costs. My own experience is that the costs of private prosecutions can, in many cases, be excessive. They are not subject to the rigorous discipline of CPS costs. If we deny the Government the power to regulate, we will come to regret it.

Public Office (Accountability) Bill: Exclusion

Lord Thomas of Cwmgiedd Excerpts

Thursday 26th February 2026 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

I too welcome the obtaining of this debate by the noble Baroness, Lady Jones, and want to return, as we often should, to the actual Question in the debate. We shall have plenty of time to look at the Bill when it gets here. We are not on the Bill but on this very narrow point. Narrow though it is, it is important. Although what the Government have proposed—excluding MPs and Peers—is probably right, because it is the Government and the Executive who are dealt with in the scope of the Bill, it is worth while considering the implications of this. We can take two things by way of some help in examining the question, because the acuteness of this issue will arise primarily when we get close to an election or when political tensions are high.

It is quite interesting to see what we did in the Representation of the People Act, or to go back to what was originally enacted in 1895, in distinguishing between untruths in relation to people’s personal characteristics and untruths in relation to all other matters. Looking at the debates in 1895, it seems remarkable to me that that distinction, which was carefully made, has stood us in good stead, because we addressed a particular problem in elections.

When you look at the debates, you can see what was worrying politicians in 1895. One was worried about the fact that, during an election, he had been on a Bench of magistrates and was said to have sent a man to prison for a month, with hard labour, for stealing three pennorth of oats; he had dissented from the decision of the others. Another was accused of his yacht being used to poach salmon with a net on a Sunday in Scotland. It was a concern that untruths were being told about people’s personal characteristics, for which there was no effective remedy because you could not bring an action for slander during an election. Therefore, in 1895 it was decided that one ought to focus on what the problem was, what the remedy was and whether it should be enacted. It was enacted then and has been re-enacted successively, as recently as the 1983 legislation.

Why has it been restricted in this way? Looking at the case law that has elucidated these provisions, it seems that Parliament then thought—it is, to my mind, a very tenable position—that whereas it is wrong to be allowed to tell lies about someone’s personal characteristics, because it is very difficult to disprove those, do you leave the good sense of lying about politics to the public? That has served us well for over 130 years, but the question is: should we continue that distinction?

It is useful to look at a second matter, which is the proceedings in Senedd Cymru where, in relation to elections in Wales, it is proposed that there be an offence, similar to what is envisaged in the Bill, applicable during elections: namely, telling untruths of any fact or matter completely. The report of the examination by the Senedd committee is useful reading because it had evidence from the Electoral Commission, the Bar in Wales, Transparency International, Professor Horder and others, in relation to the problems that you create by having a wide-ranging offence of this kind.

The way forward, it seems to me, is to look at what the problem is in this House and in the other place. Is there a remedy that should be brought, and in what circumstances? The one thing that would be very undesirable is to create a huge amount of potential for people to complain to the police, saying “X or Y is lying about this” and seeking to engage in political prosecutions of that kind. That is a real worry.

However, I go this far in supporting the noble Baroness, Lady Jones: we simply ought to look at the difficulties and see what the problem is—but it is a difficult problem on which there is an awful lot of experience, and we need a proper examination. On what I have read so far, I regret to say that I agree with leaving their Lordships—I should say “your Lordships”, including myself—and others out of the scope of this Bill, because there is a logic to confining the provision to the Executive and not opening the door to lengthy and politically inspired prosecutions. However, it is a question that should be examined, and that is why I am so grateful to the noble Baroness, Lady Jones, for raising this very difficult point.

Victims and Courts Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Wednesday 11th February 2026 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I oppose the Question that Clause 11 stand part of the Bill. This clause seeks to extend the right to prosecute to those with different qualifications from solicitors or barristers.

As my noble friend Lord Gove highlighted at Second Reading, the Crown Prosecution Service faces constraints in whom it can employ, and the criminal Bar is facing a retention crisis. Last year, a national survey by the Criminal Bar Association found that one in three criminal barristers intends to quit. It is obviously crucial that we have enough Crown prosecutors for cases, and we fully appreciate on this side the challenge that the Government face. However, I do not believe that this clause is an appropriate solution. Rather than carefully addressing the causes of those pressures and looking for proper solutions, this clause simply moves the goalposts. It redefines who is qualified to undertake what is highly serious work. That is not good enough.

While it has been argued that allowing CILEX members to prosecute will help to increase diversity, this argument should not be used as a smokescreen for what could potentially dilute standards. I dare say that is not what those truly calling for diversity want either, on their part. Genuine diversity in the legal profession is not achieved by lowering thresholds or by altering qualifications to fill gaps. It is achieved by facilitating pathways and by supporting structures within the profession, so that people from all backgrounds can succeed on an equal footing. To suggest otherwise risks turning diversity into a box-ticking exercise. It does not demonstrate an authentic commitment to broadening access to the profession.

We cannot risk lowering the quality of prosecution. This would not be fair on the defendant, and certainly not on the victim, and it is definitely not in the long- term public interest. Victims and defendants rely on the competence of the prosecutor. A victim must have confidence that their case is being handled by someone who is suitably qualified. Those who prosecute murders today will some years ago have prosecuted in the magistrates’ courts; they start at the lower level and they move up, gaining their experience moving from level to level as proportionate to their skills.

A defendant whose liberty may be at stake is entitled to proper assurance. These are not minor concerns; they go to the heart of our justice system. More widely, any weakening of our standards risks undermining public confidence in the justice system as a whole and weakening the supply, I suggest, of future prosecutors of serious crime. Can the Minister please explain what assessments were undertaken previously of the impact of this proposed change?

If we are to expand the pool of prosecutors, we must be absolutely sure that this shift is backed by sufficient evidence of good quality, and that any necessary safeguards are in place to ensure that standards will not drift or diverge over time. The Committee deserves clear evidence that this reform will enhance, and not diminish, the quality of prosecutions. We have not been shown that evidence. Without it, this clause risks creating more problems than it solves. I urge the Minister please to reflect carefully on these concerns and to ensure that any change to the thresholds is supported by robust, transparent evidence and proper safeguards. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will make one or two brief observations about this, if I may. First, I must declare an interest, in that about 10 years ago I was made an honorary vice-president of CILEX. In case it is thought that I am speaking with the interests of CILEX in mind, I wanted to make that absolutely clear.

My first observation is this: the transformation of the way in which the legal profession operates and its financial position has been enormous over the last 20 or so years. Sometimes, I think we forget the huge difference there is in remuneration for those who practise in areas such as commercial and administrative law and those who practise in the criminal sphere. This is having a very serious effect on the ability.

How that problem is solved is a matter for Her Majesty’s Government, not for me, but it seems to me that, in looking at what the state can afford, it is necessary to look at the way in which an organisation such as CILEX has transformed itself, the qualifications that are given and the reality of many cases. As a judge, one sometimes feels that the best experience for being a good prosecutor is having done a lot of prosecutions, not necessarily where they had a first-class degree from a great university or whether she had done extremely well in the solicitor’s or Bar finals; experience is important.

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We must also reflect on the fact that once the power is conferred, it would not be limited to the present Government. It would sit on the statute book, available for future Ministers to exercise in future fiscal or political circumstances, and without further primary legislation. Parliament should be cautious about granting wide executive powers that alter long-established constitutional arrangements, particularly where the case for change has not been made—we await the review —and the potential consequences for access to justice are so grave. For those reasons, we do not believe that Clause 12 should stand part of the Bill.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, the issue of costs in private prosecutions is an extraordinarily serious one. The noble Lord, Lord Sandhurst, has spoken of the position of charities, the RSPCA being one example. One can well understand the position of a charity conducting a prosecution through a small solicitor where costs are modest. On the other hand, one must recall that for good reasons of public interest, there are private prosecutions by large corporations to protect intellectual property. The consequence of the change in the market for solicitors and barristers has produced a problem, because what the CPS pays prosecutors to prosecute is completely out of line with what a large, industrial conglomerate that wants to enforce its intellectual property rights can pay. This is a problem that has to be grappled with.

One of the reasons why the CPS cannot prosecute more than it does is the Government’s constraint; both the last Government and this one are responsible for that. There is not enough money in the system to enable the CPS to prosecute where it should be doing so. More than 10 years ago, the change in the market and the constraint on the finances of the CPS, arising out of the 2008 financial crisis, began to manifest themselves in the contrast between what happened in private prosecutions by large conglomerates, or associations of those interested to protect their economic position, and in the CPS. The courts have tried to do something about it through a number of cases, but it is an extraordinarily difficult area.

For example, in a commercial case—many of these cases go to solicitors—there did not used to be the idea that you would have to get a tender before you prosecuted, but the courts now require it. The courts have made a number of very important changes to try to bring this cost under control, because, although it cannot be shown that if you pay a large sum—several hundred thousand pounds—to defer the costs of a private prosecution it will directly come out of any bit of the overall justice budget, anyone who has had to deal with the Treasury knows that that is the case. The Treasury looks at a pot for justice and, if you take large sums out of it by paying for private prosecutions, the other part of the justice system suffers.

This is a matter that has to be grappled with, and the right people to grapple with it are the Government. It is not a very good position for judges to be in to be making these very difficult decisions because of the gross inequality between what you pay private lawyers, which many may think is far too much but that is not for me to judge, and what you pay the Crown Prosecution Service, which may not be enough—again, that is not for me to judge. The problem of what I might call public penury and private affluence is absolutely illustrated by the problem of paying for private prosecutions. It is for the Government to grapple with, and setting rates is one of the ways to do it. I think it is probably the right way, but all I am saying is we that cannot run away from this problem that has arisen because of changes in the market and the constraints on public expenditure.

[Baroness Hamwee (LD)]

My Lords, the noble and learned Lord has inevitably given us a very brief tour d’horizon of the problems of the costs and charges of the legal profession getting out of hand. Looking at the Bill over the weekend, I had to turn up the 1985 Act and write into it the changes that would be made by the Bill. It seems that the one to focus on is making the provisions subject to regulations, which boils down to the Lord Chancellor setting rates—at least that is how I read it. It is not much of a stretch to think that those are going to be linked to legal aid rates, and one can see the problem.

The noble Lord, Lord Sandhurst, who explained some of the problems very clearly, mentioned consultation and rather dismissed it as being helpful, but it is important that the Committee should know what is planned by way of consultation. I hope the Minister can help us on that, because so much turns on its outcome.

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I ask the Minister: what has been the outcome of all this sympathy, all these reviews and all this time? Ultimately, I agree with other noble Lords that this has to be the Bill: this has to be the moment, because it is about not only the grave injustices we have already seen, but those coming up the pipe.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I support the principle behind Amendment 61. The real question is: how quickly can this be done?

I want to give an illustration of a problem that has arisen in civil courts across the world: the ability of artificial intelligence to hallucinate—to create cases and precedents for lawyers to use that do not exist. All civil courts across the world, including those in this country, have realised that this is an immense problem. It is being dealt with by practice direction—in some cases, very quickly indeed—because it is corrosive to the proper conduct of litigation, and it seems to me that there is no reason why, when this comes back on Report, it cannot be dealt with. It is not a difficult problem, and if it has been around for two years, that is 18 months too long.

The other point I want to address, in a slightly different manner, is Amendment 62. This is a much more difficult problem and has arisen because of the way in which drill music, and similar music, has been used in the prosecution of cases. The admissibility of such evidence is quite complicated.

What is very worrying—as can be seen by the attendance here today of one of the counsels involved in these cases—is that the way in which this evidence has been used in some cases has caused a lot of deep misunderstanding and suspicion about the way our criminal justice system operates for certain minorities. The thought that you will be found guilty because of the music you listen to is deeply troubling.

However, it seems to me that what we need to do first is look at the cases where this has been used. I looked at the case of the Manchester 10 and, coincidentally, in that case, the evidence had been admitted by agreement, and the Court of Appeal upheld the way in which it had been used for certain purposes.

It seems to me that this is a more complicated problem, and it would be helpful if the Minister was able, between now and Report, to put before the House a short letter explaining what the problem is. I think it would be easier to look at the amendment in the light of a better understanding. The last thing I want to do is to bore the Committee by explaining the ways in which evidence can and cannot be used legitimately. It is much better that members of the Committee have the benefit of reading that on a piece of paper.

[Baroness Brinton (LD)]

My Lords, I have two brief points on Amendment 61, and I thank the noble Baroness, Lady Chakrabarti, for tabling it. It is really wrong that computers or systems have ever been deemed to be reliable, let alone infallible. My husband is a research and design engineer who has worked in Cambridge Science Park for well over 40 years. He and his friends have a phrase that they use among themselves and about themselves: “Garbage in, garbage out”. When we started hearing about the Post Office Horizon scandal and Fujitsu, the first thing he said to me was, “Garbage in, garbage out”. The problem we have is that too many people, the courts and the court of public opinion believe that computer systems are infallible.

I also want to touch very briefly on AI because we are seeing cases in the courts now. Facial recognition cases are coming up. Big Brother Watch reported on one last June. I notice that not quite weekly, but quite frequently, an individual is arrested as they go into a store and are accused of taking something very small and then evidence is produced of them on a facial recognition watch list. It then transpires some time later that they are not that individual. One particular firm’s name keeps coming up—I will not go into that —but the reaction of the shop is exactly that: it is infallible. I support the amendment, and I urge the Minister and the Government not to pause on this at all. It is needed, not just for the legacy of Post Office Horizon, but for cases in our courts right now.

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[Baroness Levitt (Lab)]

I do not accept that. My noble friend should think carefully about making accusations such as that.

The point is that we are looking at the evidence that we have received in order to evaluate it to ensure that we make evidence-based and informed changes. The Government are considering this matter carefully. I am not announcing another review or another consultation; I am simply saying that we are looking at the evidence that we have.

I hope that my noble friend Lady Chakrabarti will hear the words that I am using. She knows that I understand the problem and that I am not unsympathetic, but we need to find a way that does not create a lot of unintended consequences.

[Lord Thomas of Cwmgiedd (CB)]

My Lords—

[Baroness Kidron (CB)]

My Lords—

[Baroness Kidron (CB)]

I would never compete with the noble and learned Lord.

[Lord Thomas of Cwmgiedd (CB)]

The Government have had nine months. Normally, if you went to a competent lawyer and said, “This is the evidence. We need a solution”, you would be horrified if you had to wait nine months. Why is there not an answer? Can we have one when this comes back on Report? There is no excuse for delay.

[Baroness Kidron (CB)]

My Lords—

Victims and Courts Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Monday 9th February 2026 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, this group of amendments in my name relates to Clauses 1 and 2. I start by observing that we on these Benches are broadly supportive of most of the provisions in the Bill. Many of the amendments tabled in my name, save one or two exceptions, have the aim of strengthening the Bill’s existing provisions rather than removing them. The use of reasonable force to compel attendance at sentencing hearings was a measure first proposed by the previous Conservative Government in the Criminal Justice Bill, which fell at the Dissolution of Parliament. It is, therefore, a policy that we on these Benches strongly support.

As the Government have consistently said, victims and their families deserve to see justice done. They deserve to hear directly those remarks which explain the court’s reasons for the sentences that are being imposed, and they deserve the chance to face their offenders and have their own voices heard in open court. In that spirit, many of the amendments in my name probe details of Clauses 1 and 2, and question how they would operate in practice. These clauses set out the statutory powers for judges to order an offender to attend court for their sentencing hearing, by reasonable force if necessary. As we have heard previously, offenders who refuse to attend their sentencing hearing thereby insult their victims. Offenders should not be able to undermine the final moment of justice in such a way. The amendments in this group ask the important question of why the Government are not taking this opportunity to expand the applicability of Clauses 1 and 2, given their upcoming and substantial court reforms.

I understand that the application only to the Crown Court in these clauses is the same as the approach taken in our Criminal Justice Bill, but I point out a crucial difference between the positions of the last Government and this Government. When this clause was originally proposed, there were no plans to alter the sentencing powers of the magistrates’ courts. However, this Government are now proposing to increase magistrates’ sentencing powers to three years, thereby shifting a large number of cases away from the Crown Court towards magistrates. As such, magistrates will hear a much greater proportion of increasingly serious cases, which surely throws into question the application and scope of Clauses 1 and 2.

In fact, this is a different contextual background from not only that of the previous Government but that of this Government. The Bill was introduced in the other place before the Government announced their court reforms. So, as published, Clauses 1 and 2 would have permitted the compulsory attendance of an offender for sentences between one year and three years. Now, however, if the Bill is unamended, and the Government’s court reforms go ahead, a person convicted in a magistrates’ court for an offence that would have previously been heard only before a Crown Court will not be required to attend their sentencing hearing.

If it was previously the Government’s view that offenders facing between one and three years’ imprisonment should be subject to compulsory attendance at their sentencing hearing, why have they not made the necessary amendments to the Bill? Perhaps that is because they have changed their mind, in which case the Minister should be clear about that. If it is the Government’s position that the scope of offenders who should be compelled to attend their sentencing hearing should remain the same as when the Bill was introduced, they must surely accept these amendments. The question that then arises is: why stop at the Crown Court, when extending these powers to other courts could make a meaningful and positive difference to the victims of other crimes?

We should not dismiss the experience of victims of, for example, burglary. Requiring an offender to attend their sentencing hearing may give those victims just as much closure. Conversely, an offender refusing to attend could cause just as much insult, if this series of amendments is not accepted. If anything, by reserving these powers for the Crown Court only, we risk playing down the significance of other crimes by signalling that offenders do not have to face their victims. Extending these powers to other courts would not only provide greater consistency but show that no crime is more permissible than another, or that one victim’s experience is not more or less important than another’s. If the rationale is one of practicality or resource, the Government should make that case. If, however, there is no compelling reason, whether it be legal, procedural or financial, the Bill presents an ideal opportunity to address a gap, rather than requiring further primary legislation later on down the line after court reform has been implemented.

If the Government’s intention is to strengthen victims’ confidence in the criminal justice system, surely consistency must be at the heart of that ambition. Victims do not experience crime through the lens of jurisdictional boundaries. They experience the indignity of being wronged and they rightly expect the justice system to deal with offenders in a manner that recognises that harm each time, regardless of which court is sentencing. It is for these reasons that I believe the Government should revisit the decision to confine these powers solely to the Crown Court; otherwise, the Bill risks creating a two-tier system, where the victims of some crimes are afforded the closure of seeing justice done in person, while others are denied it for reasons that are administrative rather than principled.

I would be grateful if the Minister could also clarify what consideration has been given to victims’ expectations and their confidence in the justice process when limiting these powers to the Crown Court. I hope that the Minister will reflect on these points and consider whether there is scope for a more ambitious and comprehensive approach. I look forward to her response and to working to strengthen this legislation for the benefit of all victims. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will make a brief observation about the amendment. The exercise of this power by a judge is never going to be easy, and we should be very cautious about the way this is introduced. Let us first see how it works with people who have the experience of handling what, in the circumstances, will be a very difficult position before we move on to doing it in all courts. This power must be confined to those cases where it is really necessary, because I think that a number of us who have had experience of this would be very worried indeed if this power came to be routinely deployed.

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[Lord Sandhurst (Con)]

My Lords, the amendments in this group, in my name and that of my noble and learned friend Lord Keen, seek to ensure that the Bill lives up to its purpose in the name of victims.

Clauses 1 and 2 set out how offenders can in future be compelled to attend their sentencing hearing. But, as currently drafted, they contain no mechanism to involve the victims directly in the process. This is contrary to the Bill’s purpose to make provision for an enhanced experience for victims within the criminal justice system. Indeed, it is unclear in what situation a judge would be minded to make such an order without the request of the prosecution and what the criteria for such a decision would be in that instance.

If, in the absence of a request by the prosecution, the court’s power to compel attendance is not automatic, I look to the Minister to say why that is the case. Further, I ask her to clarify whether published guidance will be provided to judges as to what factors should be considered when making an order, beyond the practical considerations of officer safety.

The amendments which we advance, on the other hand, would overcome some of our concerns. They would enable the victims to have a say and to request that the offender be ordered to attend. As the Minister set out at Second Reading, the reasoning behind this Bill’s provisions is to compel attendance in the first place and to provide an opportunity for victims to look the defendant in the eye and explain exactly how a crime has affected them. The sentencing remarks are often their last opportunity for this. Why, then, should victims not be given a say whereby they can expressly request that an offender is ordered to attend? This would both give the victim a greater voice and give the judge greater clarity on how to proceed.

The second two amendments in this group, Amendments 4 and 9, would also require the courts to consult the victims if the judge is minded not to make an order compelling an offender to attend sentencing. If a victim is deceased or incapacitated mentally or physically, our amendments would allow family members or another appropriate representative to be consulted in their place. Justice should not stop when the victim cannot speak for themselves. This would put victims at the centre of the process. It would ensure that such decisions are taken not behind closed doors but in consultation with those victims whom these decisions affect.

We cannot treat these issues as merely procedural. For a victim, a sentencing hearing can be a profoundly significant moment, and it is an opportunity for closure. I am sure that the last thing noble Lords would want is for a victim to feel disconnected, sidelined or unheard by the courts in the run-up to a hearing. This amendment would also give judges a chance to explain and justify their decisions. If the offender will not be in attendance or the judge will not exercise their powers to compel attendance, victims or their representatives deserve an explanation of why that is the case. This should happen both where a victim has made a request for an offender to be ordered to attend and where they have not. We do not consider this to be a heavy burden on the courts. It should instead be considered best practice. These steps would ensure that the judge’s decision-making process is consistently transparent. It would make our system more accessible and demonstrate to victims that they are a priority, not an afterthought, particularly at the point of sentencing.

This Bill was presented to Parliament as an opportunity to address these very concerns. Our amendments would fill real gaps in drafting. I am sure the Minister will want to reflect carefully on them. I look forward to hearing the contributions of other noble Lords to this debate. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I shall make two observations. The first relates to the remark made by the noble Lord, Lord Sandhurst, in relation to how judges will exercise these powers and whether guidance will be given. No doubt the Lady Chief Justice will consider whether to give guidance, or such guidance might be given by practice direction or be the subject of discussion at the Judicial College, but the handling of this is entirely for the judiciary. It is difficult enough, and it certainly would not be in any way appropriate for the Ministry of Justice to give guidance. It seems to me that the exercise of this judicial power must be for the judicial branch of the state and it alone—unless, of course, Parliament in its infinite wisdom decides that it wants to set down the criteria. I strongly urge Members not to do that.

The second relates to a more practical point, and that is the ability of the victim to intervene in the decision and to be able to make a request. It is sometimes forgotten that a transformation occurred during the 2000s and the next decade in the way in which the Crown Prosecution Service dealt with victims. There was a time when the victim was regarded as peripheral to the way in which the courts operated and to matters that had to be taken into account. That position changed remarkably and for the better. I think it is appreciated that the judicial power to have someone brought into court has to be exercised with the greatest degree of thought. If the Crown Prosecution Service were to request this to happen, I would be astounded if it had not consulted the victim. In my experience, that is what often happens in these difficult circumstances. There is a discussion as to the best way of proceeding and it is very important that this is approached in that sort of way.

If the victim was to be allowed to make the request directly, this raises the question as to how. Is this to be done in open court with the discussion of the various issues? Is it not best left to the wisdom of the Crown prosecutor and the judge’s ability to ask questions as to the victim’s views? It seems to me this is a much more efficacious way of dealing with the matter rather than bringing the victim in personally—because there is no suggestion of a victim’s advocate for this—to what will be, if this power is to be exercised, an occasion of great difficulty. The last thing anyone wants to happen is to provide secondary victimisation by an awful scene in court. I urge the Government to exercise very considerable caution in considering this amendment.

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

My Lords, once again I am extremely grateful to the noble and learned Lord, Lord Thomas, for his note of caution about Amendment 3—and Amendment 8 in the case of service personnel—which would allow victims to request that an order be made. I completely agree with him that it is a matter for the judiciary to exercise its discretion as to whether orders are made. I am not entirely sure that the noble Lord, Lord Sandhurst, took into account quite how difficult it is going to be to make these orders. I suggest that the caution of the noble and learned Lord, Lord Thomas, about bringing the victim in as effectively a party to such an application is a point well made. But I accept that it is right that the victim’s voice should be heard. I also agree with the noble and learned Lord, Lord Thomas, that the victim’s voice in court now is heard in a way that it certainly was not decades and even years ago. But a formal position whereby the victim was entitled to make a request is probably undesirable, though it is quite clear that the victim’s voice should be heard and that guidance to and from the judiciary should reflect that.

Amendments 4 and 9 are effectively seeking a very serious conflict:

“If the court is minded not to make an order under subsection (2), the court has a duty to consult the victim, or, where the victim is deceased or is unable to be consulted … a family member or other appropriate representative”.


That would put the victim in a wholly invidious position of effectively making the victim compulsorily a party to the application for an order. That is likely to stoke up hostility between the victim and the offender, which we are trying to avoid or at least reduce, and even possibly between the victim and the court, which would be a thoroughly undesirable position. Far better, I suggest, to leave it to the judge to decide how the victim’s views should be sought and taken into account, without imposing any duty on the court to consult the victim at any stage. It would be much better for the Bill to remain silent on how the victim’s views should be sought, but the expectation will be that they will be sought, and I have no doubt that that is how the judiciary would approach this exercise.

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[Lord Hacking (Lab)]

As my noble friend will recall, I raised this issue at Second Reading. I support Amendment 14, in the names of the noble and learned Lord, Lord Keen, and the noble Lord, Lord Sandhurst, and Amendment 15, in the name of my learned friend, if I may refer to him in those terms, the noble Lord, Lord Meston. I add that I have sympathy towards the drafting of Amendment 13, tabled by the noble Baroness, Lady Brinton.

As I say quite frequently in this House—the issue of sexual offending arose in the passage of the Children’s Wellbeing and Schools Bill, and I said it then and I repeat it now—sexual offences in the family environment are appalling. The offence of a father—it is often the father, rather than the mother—sexually attacking, which I think is the right word, his own son or daughter, who are as young as 14 years-old, is absolutely appalling. It is beyond most of our comprehension that any father would do that—it is certainly beyond my comprehension.

The important thing here is the value of the prohibited steps order made in the family court, because that can be carefully fashioned to the particular needs of a family. Therefore, it is welcome that the family court has this provision. The use of this prohibited steps order is most valuable for the protection of children and spouses in the family.

I am a little puzzled by the provision in Clause 3, and I ask my noble friend the Minister to reply to this, under which it is obligatory, within the circumstances set out, for a prohibited steps order to be made. I would be grateful for guidance—I am sorry I have not researched this—on whether the power to make a prohibited steps order is a matter of discretion by the Crown Court, or whether it is the situation that a prohibited steps order can be brought into force only under the drafting of Clause 3? I would be grateful if my noble friend the Minister could answer that.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will make a few observations. No one can doubt the revulsion towards sexual offenders who have attacked their own children or have the potential to do so, but there are two practical points that we must bear in mind.

First, the criminal justice system and the criminal courts, and the family justice system and the family courts, have been starved of resources by both Governments—there is no doubt about that. When sentence lengths are increased by both parties, we end up with a situation in the prisons that is a crisis. In deciding what orders to make in this kind of case, it is of paramount importance to have regard to the resource implications. It is no use saying that there is money for this. There is not. The courts system is starved, and the result of that is victims suffering in a whole host of other cases by the tremendous backlog. Both this Government and the last Government are responsible for the position into which the courts have been placed. When we look at this, please have regard to resources.

The second point, a point made by the noble Lords, Lord Russell of Liverpool and Lord Meston, is that it is important that we get correct the balance as to what the Crown Court is to do and what the family court is to do. I am not sure, having listened to this debate, that that is a matter that has been sufficiently addressed. The one thing you cannot have—because it is a waste of resources and does not deploy expertise correctly—is the lines not clearly drawn. I hope very much that, before this comes back, there will be the opportunity for those who have day-to-day responsibility in the judiciary and the Courts Service, together with the ministry, to be sure that we have got the most effective and efficient use of resources and the right kind of drawing the line. It is very difficult, but we cannot ignore the bankrupt state of the courts. It is a regrettable fact, and we must not make the mistake we have made in relation to sentencing.

[Lord Sandhurst (Con)]

My Lords, I apologise for organising my notes here—I have been listening hard. I am grateful to all noble Lords who have spoken in this group, which concerns the operation of Clause 3 and the use of prohibited steps orders for the safeguarding of children where a parent or individual with parental responsibility has been convicted of serious sexual offending. The group rightly raises profound questions about thresholds, discretion, safeguards and consistency, and indeed, as the noble and learned Lord, Lord Thomas, has pointed out, the balance between the two wings of the court system—the family and the criminal courts. I thank noble Lords for their searching and constructive contributions to this debate, all of which are motivated by a shared desire to protect children from harm.

I begin with Amendment 13, tabled by the noble Baroness, Lady Brinton, Amendment 14, in my name, and Amendments 15 and 19, tabled by the noble Lord, Lord Meston. All these amendments concern and probe the four-year custodial threshold that currently triggers the duty on the Crown Court to consider making a prohibited steps order. I thank the Government at the outset for the constructive manner in which they have already engaged with the clause. They accepted, during the Bill’s passage through the other place, that the original scope of Clause 3 was too narrow. As drafted on introduction, it applied only where the offender had committed sexual abuse against their own child. Following sustained concern, the Government rightly expanded that clause, so that it applies where the offender has abused any child. That change was welcome and necessary.

However, while the class of victims has been widened, the custodial threshold remains set at four years. It is here that noble Lords have expressed deep unease. A four-year sentence is an extremely high bar. There are numerous sexual offences involving children that may result in sentences well below four years yet would plainly justify the imposition of a prohibited steps order to safeguard a child, such as sexual communication with a child, causing or inciting a child to engage in sexual activity, certain forms of indecent assault or online grooming behaviours. These may, depending on the facts, attract sentences of significantly less than four years. Yet it would be surprising to suggest that an individual convicted of such conduct should automatically fall outside the scope of a safeguarding measure which has been designed to prevent them from exercising parental responsibility without scrutiny.

I think all noble Lords accept that there is a balancing exercise here. The state should not intervene lightly in family life. We must be careful not to construct a regime which is too blunt and results in unnecessary or disproportionate separation of children from parents. However, equally, Clause 3 as drafted risks being too narrowly drawn and failing to engage precisely in those cases where concern is most acute. The current threshold risks excluding serious and dangerous individuals because the custodial term imposed falls short of an arbitrary figure. We look to the Minister to explain why four years was chosen, what evidence underpins that decision and why a lower threshold or an offence-based approach was not chosen.

Amendments 22 and 27 raise an issue of rather different but also troubling nature—the power of the Secretary of State by regulation to amend the list of offences to which Clause 3 applies. As drafted, that power is not limited to expansion. It allows the list to be amended. That necessarily includes the possibility of reduction. It is difficult to conceive of a principled reason why a future Government would wish to remove sexual offences from the scope of a safeguarding provision of this kind. That prospect should concern the whole House. We accept the need for flexibility. The criminal law evolves. New offences may be created, particularly in the online sphere, as was illustrated by the recent Grok AI scandal and by non-consensual deepfakes of women and children in particular.

I recognise that Parliament cannot foresee every future risk. Recent controversies involving emerging technologies only underline that reality. It is therefore sensible that Ministers should have the power to expand the list where gaps emerge. However, it is not at all clear why the power should run in the opposite direction. Our Amendment 22 seeks to ensure that the Secretary of State would be able only to expand the list of relevant offences rather than shrink it. Opposition to what is modest drafting would raise serious questions about the Government’s intentions. We hope that the Minister will reflect carefully on that.

In that context, we are grateful to the noble Lord, Lord Meston, for Amendment 27, which would add Section 15A of the Sexual Offences Act 2003, on sexual communication with a child, to the schedule. This offence criminalises the deliberate sexualised communication with a child for the purpose of sexual gratification. A technology-enabled form of abuse can be profoundly harmful. It often forms part of a wider pattern of grooming. Its inclusion in the schedule would materially strengthen the safeguarding framework, particularly if the threshold under Clause 3 were to be revisited.

Finally, Amendment 34, tabled by the noble Lord, Lord Meston, seeks to extend Jade’s law to cover attempted murder. This amendment raises an important principle. While the law recognises that certain conduct is so grave that parental responsibility should be curtailed automatically, it is difficult to see why the distinction between murder and attempted murder should be a point of difference, particularly given the catastrophic harm that attempted murder can cause.

This has been a thoughtful and serious debate. The amendments in this group are aimed at strengthening Clause 3 to protect children from harm while respecting the practical policy constraints which the Government face. We have no doubt that the Minister will engage constructively with the issues raised and provide the House with the assurances and explanations that these amendments request.

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[Lord Meston (CB)]

My Lords, I begin by commenting on two parts of the noble Lord’s amendments. I find it difficult to understand how his Amendment 16 would work in practice. These orders have to be made at the point of sentencing; they cannot come later on as an afterthought or at a later hearing. More importantly, I question how the Crown Court would be in a position to assess what is or is not in the interests of the child, and, certainly, how the Crown Court could do it without a report that typically, in the family court, might be available from Cafcass or a local authority.

Moreover, what would the Crown Court do if the suggestion of not making the order to remove or restrict parental responsibility is strongly opposed by the other parent, as would quite likely be? That other parent, certainly in the Crown Court, would not have party status and would probably not have legal representation.

On the face of it, the Crown Court might face the prospect of a contested hearing on the question of whether to restrict parental responsibility. Clearly, that is much better dealt with by the family court in the appropriate way. Having said that, I of course understand the force of the noble Lord’s Amendment 33, which seems to present a sensible solution to a potentially difficult problem.

I move briefly to my amendments in this group. They are procedural and evidential amendments. Amendment 23 would provide for the Crown Court that is required to make the prohibited steps order to be supplied with all necessary information to make the order, enabling it to make the order in appropriate terms, covering all the children to whom it might apply and enabling it to be provided to the other parent and others holding parental responsibility. As it appears from the very length of Amendment 23, parental responsibility can be acquired by a number of different people in a considerable range of situations. It almost goes without saying that the convicted offender may not be a reliable source of information about the children for whom he has parental responsibility, or the basis on which he might hold it. The Crown Court therefore cannot be expected simply to make a blanket, generic order referring to all or any children for whom the defendant holds or might hold parental responsibility. That would be of little use to anyone. The court therefore has to be in a position at the point of sentencing to make an order that should refer to specified children. For that, accurate and reliable information should be provided. As the amendment suggests, that would be best done by the Probation Service as part of the pre-sentence report.

Once that order has been made, it is also important that those who are affected by the order are notified of it. Hence, Amendment 17 would provide for notification by the Crown Court to the relevant local authority and the provision of a copy of the order, with a duty on the local authority to convey that information by onward notification to all persons who hold parental responsibility for the child or children concerned. Clearly, they need to know what has been ordered and to understand the effect of it. The local authority is best placed to provide that information.

Finally, Amendment 29 would ensure that in rape cases the victim is promptly and properly informed that the order has been made, with an obligation on the court to notify the relevant local authority within seven days of the order being made and an obligation on that local authority within 14 days thereafter to notify the victim of rape. Without this, there is a risk that the other parent or holder of parental responsibility for the child or children concerned, and the victim of the rape, are not made aware of the order or of its implications. They may be aware if they attend a sentencing hearing, but that is not certain. In any event, a local authority, particularly one involved with the family, would be best able to explain the effect of the prohibited steps order, its duration and other implications.

[Lord Thomas of Cwmgiedd (CB)]

I shall again make one very brief observation. It is obvious that what is to be provided is a short, speedy, summary step to protect whatever range of offence is decided on. I agree completely with the noble Lord, Lord Meston, that the Crown Court cannot be the appropriate place to start debating what is in the interests of the child. We need to see whether a form of order can be devised, and an exchange of information put forward, that does not impinge on resources, say for the Probation Service, which is probably going to be in a worse position than the courts, that can give the speedy remedy that is needed simply and transfer, for the making of the final order, to the family court, which is obviously the right place to do it. I am not sure we need all these complicated pieces of legislation to do that: rather, it should be something probably very much simpler, with a power for the Minister to make regulations once a proper, simple procedure has been worked out. I fear we are getting ourselves into a degree of complexity that is not desirable.