Courts and Tribunals Bill

Lord Howard of Lympne Excerpts

2nd reading
Tuesday 27th October 2026 Lords Chamber

[Lord Howard of Lympne (Con)]

My Lords, I declare my interest as a non-practising barrister. It is a pleasure to follow the noble Baroness, even though I feel unable to follow her conclusions.

In 2020, Mr David Lammy, who was the ministerial author of the proposals in this Bill, said:

“Jury trials are a fundamental part of our democratic settlement. Criminal trials without juries are a bad idea”.


He has also said that jury trials are

“one of the big contributions that flow out of Magna Carta”.

He was right on the first two points and almost right on the third—and here I have to disagree with my noble friend Lord Ashcombe. As the noble and learned Lord, Lord Burnett of Maldon, who cannot be here today, has shown in his magisterial recent Selden lecture on the history of jury trial, trial by jury actually began just a little while after Magna Carta when Pope Innocent III banned trial by ordeal in November 1215, after which, following a writ of King Henry III in 1219, travelling judges began to use a local jury to determine guilt or innocence. Whether it began in 1215 or 1219, jury trial has long been part of our national history.

The traditions which make a country what it is are like a tapestry—one that has many threads. If you start to remove those threads, the tapestry begins to unravel and becomes threadbare. The traditions start to dissolve and the essential soul of the nation, bit by bit, begins to get lost. Jury trials are a part of that tapestry. The principle that we are entitled, if accused of a serious offence, to be tried by our fellow citizens, has become deeply embedded in our national psyche.

While I welcome the removal of the original Clause 3 of the Bill, I view with great concern the proposals to curtail the right to trial by jury, some of which go beyond the recommendations of the Leveson review. I am particularly concerned by the provisions of Clause 1, which would remove the current right of an adult defendant charged with an “either way” offence to elect for a Crown Court trial. What are these “either way” offences? They include theft and shoplifting, assault occasioning actual bodily harm, fraud and drug offences. Quite apart from the obvious consequences of a conviction for these offences, the reputational damage could be even more severe. That is not something which a court would be entitled, under the provisions of the Bill, to take into account when deciding the appropriate venue for trial. I also have concerns, among other provisions, about Clause 3, which removes the right to jury trial in long and complex cases, and Clause 6, which removes the automatic right to appeal to the Crown Court against conviction or sentence in the magistrates’ courts.

As we have heard from the noble Baroness and previous speakers, I recognise that not all your Lordships share in these concerns, but there is one provision in this Bill which I hope all Members of this House would unite in opposing. That is the provision in Part 2 of new Schedule 3ZA which would enable the Secretary of State to add by order—by order, my Lords—to the number of offences which come within the scope of the new schedule, meaning the offences in respect of which jury trial would no longer be available.

As the Government’s own Explanatory Notes put it, this would enable the Secretary of State to

“add offences which are not related to fraud or financial crime to the Schedule”.

He could add any offence, by order, to the schedule—this is monstrous. Your Lordships have long been accustomed to what have been termed, not always accurately, Henry VIII clauses—but this is not a Henry VIII clause; this is a Joseph Stalin clause. It is an absolute outrage, and it should not be allowed to remain in the Bill, whatever the fate of some of the other provisions to which I have referred. There is much scope for your Lordships to improve the Bill, and I hope we make the most of this opportunity.

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[Lord Garnier (Con)]

My Lords, it is a pleasure to follow the noble Lord, Lord McNicol, for two reasons. The first is that I agree with everything he said about his noble friend Lord Stace, who has just made what the noble Lord, Lord McNicol, described as a thoughtful maiden speech. I am not in the least bit surprised, knowing what I know about the noble Lord. I expect the House to benefit from his contributions on many future occasions and I welcome him to his place. I also agree with the practical approach that the noble Lord, Lord McNicol, applied to this Bill and the measures that it seeks to introduce to deal with some of the plain and obvious problems that the criminal justice system faces.

Before I come to the substance of the Bill, perhaps I may be forgiven for making what I suspect might in other places be called a pleading point. The amendment to be advanced later this evening by the noble Lord, Lord Rooker, has so far been ignored by the Government. This is a Bill of huge constitutional, financial and practical importance for all of us as citizens and for the institutions of justice. If I may say so, it has been treated by the Government in the other place with considerable disdain. A lot of the Bill before us has not been considered at all, or not adequately, in the other place, so it ought to go back there to be reconsidered before it comes to our House. If that is not going to happen, and I suspect it will not, the Minister ought to have the ability to respond—I was going to say to condescend to us to respond—to the points that the noble Lord, Lord Rooker, makes in his amendment.

Far too much of this Bill is ill considered and unconsidered, and it does us no service when we have to do the work that the Commons should have done. I hope that, when we come to deal with Committee, Report and Third Reading, we will not shrink from applying serious thought, skill and expertise to the detail of this Bill, because it has been woefully considered in the other place. I do not mind which view Members of this House take on the merits and various aspects of the Bill one way or the other, but I do care that, if we are to produce legislation, it should be produced properly and well thought through.

That said, given the controversial nature of some of the provisions of the Bill, there is not really time other than to point at one or two questions which need to be thought about very carefully in Committee. I will pick up one point—I do so with some diffidence, since he is sitting right in front of me—that my noble friend Lord Howard of Lympne made. He chided our noble friend on the Front Bench for placing too much stress on Magna Carta as the origin of the jury system. He was entirely right to do so, but he then relied on Pope Innocent III as being the founder of the modern jury system.

[Lord Howard of Lympne (Con)]

It was King Edward III.

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[Lord Rooker (Lab)]

My Lords, this will not take long—as I have said in the past. The purpose of this amendment is to strengthen the role of the elected Members of the Commons. There is no way anything I say or have said before is critical of Commons Members. My criticism is purely of the Government.

We are in a cycle where Commons Second Readings are, in effect, all guillotined. It is called a programme Motion, but it covers all Bills. The effect is that the Government always want to boast about the number of Bills, which is done at the expense of the scrutiny of Bills. We have Bills arriving in your Lordships’ House. As a result of inadequate scrutiny, we end up sending back more amendments than would otherwise be the case.

The Government in the Commons then blame the extra work for elected Members on the upper House abusing its position and therefore call for reform of this House. Even when we return amendments, the elected Members, under the guillotine, are limited in the time that they can use due to the original programme Motion.

The elected Members clearly need more time for scrutiny. The Government have to return some of the powers to Parliament that they have taken away with programme Motions designed to fit in more Bills rather than better Bills. Simply asking the Government for a list of what has not been allowed to be scrutinised in the Commons puts the buck back where it belongs. I see it as being to the supreme advantage of this House that it gets a Bill and knows, as the revising House, what has not been scrutinised in the first place.

As for this Bill, on Tuesday 13 October, the Commons dealt with the Bill on Report. The Government tabled two Statements that day, which took an hour and 30 minutes. As with other Bills, no “injury time” is ever allowed on the programme Motion, which would be a normal and reasonable thing to do, but it does not happen. The time allowed was from 3.29 pm to 6 pm, when the guillotine came down—two and a half hours. In those two and a half hours, the Commons dealt with 27 new clauses and 30 amendments from the Government and Opposition for debate. As is the new norm, elected Members had one general debate. That is a Second Reading debate; it is not a debate on Report about what has come from Committee. When you do it like that, it is equivalent to a Second Reading debate. When the guillotine came down, another 20 government amendments were added to the Bill on the nod, spread over four new clauses and two schedules.

When that happens, the numbers of the clauses and amendments change when they are put into the Bill by the Bill team and parliamentary counsel. It is not possible to go back to Commons Hansard and work out exactly where these changes are in the Bill unless you are aware of the way they have been put in there. That is difficult. This is the fourth Bill during this Session on which I have raised this issue, and I can tell the Government that there will be more.

My main concern continues to be the material that the elected House has never considered but put into a Bill on the nod. There is a pattern emerging, which is that Report in the Commons, as I said, is effectively now just a Second Reading debate on a very large group of new material, at the end of which all the government material is added and the non-government material is not considered before the guillotine. No scrutiny or attempt to raise specific issues takes place. After the guillotine, all the material added to the Bill is, of course, the government material only. All the rest falls, so it is done on the nod. It is clear, therefore, that elected Members have lost some powers of scrutiny.

As it is, I have been contacted by a long-retired parliamentary official who has also spotted the same pattern. They are not the only ones, of course; I caught the speech from the noble Baroness, Lady Fox, while I was out of the Chamber. They suggested, in the absence of the Government being open to Parliament, that the Libraries of both Houses could serve Parliament in this respect. However, why should the library staff have to search in the Bill and Hansard for material that is then unnumbered, because the numbers change when it goes in the Bill, when the Government control the Bill team and parliamentary counsel—which is government counsel really? They are the ones who know exactly which bits of the Bill have not been scrutinised in the Commons. They could provide the list. They could italicise the content, for example, or provide us with a list. It is to the abiding purpose of this House, in making revisions, that we have a better idea of what the elected House has not had time to properly scrutinise. I beg to move.

[Lord Howard of Lympne (Con)]

My Lords, I wish to place on record, as I have before, my strong support for the amendment from the noble Lord, Lord Rooker. I am not going to repeat what he said; he said virtually everything that can be said and I agree with everything he said. It is within your Lordships’ power to give effect to the proposals contained in this amendment and I hope that one day we will.

[Viscount Stansgate (Lab)]

My Lords, last Thursday in this Chamber, we debated a written constitution. During that debate, I took the opportunity to praise my noble friend Lord Rooker for making the points that he had made at previous Second Readings and makes again tonight. He speaks with great authority and experience.

I will say only two things. First, it should not be impossible for this House to be advised in some appropriate way of the elements of Bills—whether clauses or amendments—that did not, in fact, get debated in another place. Secondly, even if that did happen, it would not solve the underlying problem that my noble friend notes, which is that our legislative processes need to be improved.