Courts and Tribunals Bill (Fifth sitting)

Debate between Kieran Mullan and Yasmin Qureshi

Thursday 16th April 2026 Public Bill Committees

[Dr Mullan]

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

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

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

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

[Dr Mullan]

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

--- Later in debate ---

[Dr Mullan]

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

[Yasmin Qureshi]

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

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

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

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

Courts and Tribunals Bill (Sixth sitting)

Debate between Kieran Mullan and Yasmin Qureshi

Thursday 16th April 2026 Public Bill Committees

[Yasmin Qureshi]

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

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

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

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

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

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

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

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

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

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

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

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

and

“must have the strongest possible justification”.

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

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

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

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

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

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

“they are usually a very bad idea”.

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

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

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

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

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

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

The Minister replied:

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

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

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

The Minister replied:

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

My hon. Friend replied:

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

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

My hon. Friend the Member for Bridgwater said:

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

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

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

The exchange concluded with the Minister making this point:

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

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

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

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

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

Mr Robertson goes on:

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

He is right, is he not?

Mr Robertson is not alone. The Bar Council says:

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

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

Courts and Tribunals Bill (Third sitting)

Debate between Kieran Mullan and Yasmin Qureshi

Tuesday 14th April 2026 Public Bill Committees

[Yasmin Qureshi]

rose—

[Dr Mullan]

rose—