Courts and Tribunals Bill

Lord Keen of Elie Excerpts

2nd reading
Tuesday 27th October 2026 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, I begin by welcoming the noble Lord, Lord Stace, to his place in this House and congratulate him on his maiden speech. I look forward to him bringing his extensive experience and knowledge not only to the consideration of this Bill in Committee but to the wider proceedings of this House. I hope I do not misrepresent his views if I infer from his speech that he does not believe that the crisis in criminal prosecution begins at the door of the court but could more properly be addressed by considering the economic and social issues that allow a younger generation to drift into criminality in the first place—in other words, that we should consider root causes rather than just effects.

In an early speech, the noble and learned Lord, Lord Thomas of Cwmgiedd, posited a series of alternative court mechanisms for addressing the backlog—what might be termed “Leveson 3”, albeit not a welcome prospect to the noble and learned Lord in his seat. That is perhaps beyond the ambit of the present Bill.

I seek to address the recognition, noted by my noble friend Lord Ashcombe, that there are significant backlogs in our criminal court system. Of course, we agree that they must be addressed—not only from the perspective of the victims of crime but from the perspective of those accused of crime. They should not have to wait year after year to determine their future, whether they are on remand or otherwise. They, too, are entitled to a reasonably swift resolution of accusations of crime made against them.

But timely justice cannot come at the cost of the right to trial by jury, which, in turn, if interfered with, is liable to undermine public trust and confidence in the justice system. We are concerned that the power proposed by the Bill would seriously undermine public confidence in the justice system. These proposals will weaken that confidence.

The Government began to recognise that serious problem in the other place, when they proceeded to remove Clause 3 of the original Bill, but they have not gone far enough. I express my concern and agreement with the noble and learned Lord, Lord Garnier, that, given the changes made to the Bill, there was simply insufficient consideration or scrutiny of the Bill in the other place. That seems to be a serious concern, albeit we are capable of operating effectively as a House that can review legislation from the other place. We have serious concerns that the criminal justice system should be the subject of detailed consideration by both Houses of Parliament.

Particular concern has been expressed across the House with regard to the right to elect a jury trial in “either way” cases and the impact of this and other measures on the magistrates’ court. I wish just to touch upon the views expressed right across the House on that issue. The noble Baroness, Lady Brinton, began by referring to the situation in the magistrates’ courts as “significantly worse” than it is in the Crown Courts. We heard from my noble friend Lady Sater about there being something of the order of 380,000 open cases.

The noble Lord, Lord Russell, referred to the dangers of the magistrates’ courts being overwhelmed. The noble Lord, Lord McNicol of West Kilbride, questioned the capacity of the magistrates’ court to take on the additional court cases. Indeed, he pointed out the need for a plan, a point made repeatedly by noble Lords during the debate. My noble and learned friend Lord Garnier commended the practical approach that the noble Lord, Lord McNicol, took to the issue. The noble Lord, Lord Macdonald of River Glaven, asked what modelling had been done to determine the impact of these changes on the magistrates’ court. As far as we can see, there has been little or none.

The noble Baroness, Lady Jones of Moulsecoomb, talked about there being “insufficient evidence” to support these proposed changes. The noble Baroness, Lady Fox, asked whether there is any evidence that we are not simply shifting the problem to the magistrates’ courts. The noble Baroness, Lady Mallalieu, talked about the damage to public confidence if the shift was made without adequate resourcing within the magistrates’ court system—not just buildings, magistrates or legal advisers but the provision of suitable legal assistance, which requires, in turn, that the issue of legal aid within the magistrates’ courts be addressed. None of this has happened.

My noble and learned friend Lord Bellamy simply posed the question: how are the magistrates’ courts going to cope with the increased caseload? Again, there has been no assessment of how that is going to be dealt with. There was a reference to the fact that we are recruiting 2,000 more magistrates, but when are they going to be trained and available? How are they going to cope in the meantime?

The noble Baroness, Lady Kennedy of The Shaws, asked whether there had been conversations with the magistrates in any detail about how the impact would be dealt with. There are no answers. I invite the Minister to provide answers, and if he cannot do it this evening, to do it in writing and in detail, because, clearly, this issue has touched Members of the House on each side.

We then had the issue of whether there should be the removal of juries for complex and lengthy trials. I was rather taken by the observation from the noble and learned Lord, Lord Thomas of Cwmgiedd, who said that, generally speaking, in complex financial cases and cases of fraud, the issue is honesty. What better than a jury to determine issues of honesty? Indeed, that was a point made by the noble Baroness, Lady Kennedy of The Shaws, in her address to your Lordships’ Chamber. That is the central issue in these cases, I agree, but it is one pre-eminently suitable for a jury of one’s peers.

Then there is the question of the possible expansion of the definition of “complex or lengthy cases” through secondary legislation, not even with an express provision that it would be dealt with by the affirmative procedure. My noble friend Lord Howard referred to it as “monstrous”. Indeed, the noble Baroness, Lady Chakrabarti, expressed concern about the removal of the “safety valve” by this provision and what happens when we have a Government of a potentially authoritarian bent who could then utilise such a power. The noble Baroness, Lady Fox, referred to it as outrageous. Even the noble Lord, Lord Marks of Henley-on-Thames, deemed it unacceptable. Therefore, I invite the Government to think again on that issue. If they do not do so then, again, I suspect we shall revisit this at a later stage.

I turn to the removal of the presumption of parental involvement. There, I adopt the expert views expressed by my noble friend Lady Barran. It seems to me that the Government are aiming at the wrong target; this was a point brought out by my noble friend Lord Farmer and the noble Baroness, Lady Fox. There is no intent to elevate parental rights above the welfare of a child, but the idea that the presumption is somehow causative of some of the terrible events that have been spoken of not only is unproven but appears, on the face of it, improbable. This is a very badly targeted remedy, if it be a remedy at all. Therefore, again, I urge the Minister to reconsider.

The Government’s original plans were clearly unacceptable. Indeed, my noble friend the Leader of the Opposition was explicit when, in the debate on the King’s Speech earlier this year, he pointed out that the whole issue of blocking jury trial had never been mentioned in any manifesto, and that, accordingly, we would exercise the full freedoms of this House to defend that right. The Bill contains provisions on the right of election to trial by jury and the removal of jury trial in complex cases. Again, these were never the subjects of any manifesto commitment.

Of course, we are a scrutinising Chamber, and progress is best achieved through close engagement between Ministers and Members of your Lordships’ House. We on this side of the House are certainly committed to working as constructively as possible with the Minister to deliver a Bill that can improve the issue of the backlog in the court system—one not just limited to the Crown Court but extending to the magistrates’ court. I am reminded of a remark made very early on in this debate by the noble Lord, Lord Macdonald of River Glaven, when he said that the origins of this are a funding crisis. Perhaps we need to address that, as well as these provisions.

Courts and Tribunals Bill

Lord Keen of Elie Excerpts

Committee stage
Tuesday 10th November 2026 Lords Chamber

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

I never talked about the inadequacy of magistrates’ courts. The 90% figure is used a great deal. All motoring cases, almost without exception apart from causing death or serious injury, are tried in the magistrates’ courts, as are massive numbers of low-level shoplifting cases, very low-level violence cases and low-level cases of dishonesty. Thankfully, those comprise well over 90% of criminal cases. The Crown Court cases are the serious cases, and it is about the Crown Court that we are concerned. It is simply not an answer to say that magistrates try the vast majority of cases. People do not necessarily get the same quality of justice, for exactly the reasons that the noble Baroness, Lady Mallalieu, explained. Serious cases deserve serious effort and attention. They also deserve everything that the jury gives: the privacy of the jury room, the care taken to the evidence, the guidance of a Crown Court judge and the lack of differential between one judge and another. The reason that people trust juries is, I believe, largely to do with the bald fact that 12 heads are better than one.

[Lord Keen of Elie (Con)]

My Lords, I acknowledge the Minister’s willingness to engage with Members across the House to explain the Government’s intentions with regard to this legislation. I express the hope that he will exhibit an equal willingness in answering the very particular questions that noble Lords have now posed with respect to the provisions of the Bill.

I propose that Clause 1 not stand part of the Bill. That clause will remove the right of a defendant to elect for a jury trial in the Crown Court in the case of “either way” offences. I must observe that I was concerned by the remarks made by the Minister for Courts and Legal Services in the other place. She said that

“we need a better system, one in which courts, not criminals, triage cases”.—[Official Report, Commons, 7/1/26; col. 284.]

Her characterisation of all defendants as criminals is concerning in itself. It suggests, I hope inadvertently, that Ministers have lost sight of the essential principle that a defendant is presumed innocent unless and until they are found guilty. That principle cannot be lost sight of simply because of a backlog in the Crown Court. I hope the Minister will be able to clarify the remarks made by the Minister in the other place and to reassure us that the principle of presumption of innocence is not being pushed aside just for the benefit of convenience and timing.

On these Benches we will always stand up for the ancient right to trial by jury. It has been a fundamental protection against arbitrary justice for hundreds of years, and it has stood the test of time. More generally, the Bill seems to be driven more by ideology than by evidence, and that is a point to which we will return. Throughout the 2000s, the then Labour Government brought forward a number of Bills that sought to undermine the right to trial by jury. This House opposed such measures then, and we on these Benches oppose such measures today.

The Government have failed to justify their proposals with clear evidence. Indeed, I noted the observations of the noble Baroness, Lady Jones of Moulsecoomb, that the Government are pressing ahead without evidence. The noble Lord, Lord Marks of Henley-on-Thames, noted that the evidence in support of these proposals is “painfully thin”.

We have tabled this stand part notice because we need to hear from the Government what evidence there is that these proposals will reduce the backlog in the Crown Court system and are the only necessary route to achieving such a goal. In the absence of that evidence, we remain sceptical about the impact of these proposals. If the Minister could point us to the relevant evidence in his closing remarks, I would be grateful.

Is there evidence that these proposed reforms will reduce the Crown Court backlog in one year, in five years, in 10 years or, more likely, never? If the backlog is cleared, does the Minister accept that the Bill should be repealed? If the size of the backlog is the sole reason the Government are seeking this legislation, surely the absence of a backlog will render it unnecessary. Will the Minister answer that point?

In addition, it seems likely to us that these measures will simply move the backlog from the Crown Court to the magistrates’ court, as other noble Lords have observed. Clearly, other groups in Committee will address the issue of the magistrates’ courts, so I will not linger or expand on that point at this time. However, how much do the Government expect these measures to impact the magistrates’ system and what measures are being taken to avoid that system being overwhelmed by these measures?

Amendment 1 in the name of the noble Baroness, Lady Chakrabarti, signed by the noble Baroness, Lady Goudie, alongside my noble friend Lord Hailsham, probes whether the representations of defendants with good character who have not previously been convicted of a crime could be given greater weight. We acknowledge that this is an interesting point, and the noble Baroness is right to question how the treatment of defendants will differ based on their criminal history. It is important to consider whether a defendant with previous criminal history is more likely to receive a jury trial, so I look forward to hearing the Minister’s response.

Amendment 2, in the names of the noble and learned Lords, Lord Thomas of Cwmgiedd, Lord Burnett and Lord Phillips of Worth Matravers, and my noble and learned friend Lord Bellamy, seeks to question what guidelines will be provided as to the allocation of “either way” offences. Clearly, Clause 1 contains a substantial change to the way in which such offences may be tried and there has to be a consideration, if Clause 1 stands, as to how such guidelines would operate.

Amendment 3 in the name of the noble Baroness, Lady Chakrabarti, again signed by my noble friend Lord Hailsham, and Amendment 7 in the name of the noble Baroness, Lady Hamwee, seek to question the appeals process. I hope that the Minister will again consider those points and the concerns that have been expressed regarding the appeals system.

Finally, Amendment 5 in the name of my noble friend Lord Young of Acton seeks to exempt offences relating to contested speech from the provisions of this clause, so that a defendant’s right to elect for a trial by jury can be maintained. My noble friend makes compelling arguments defending the importance of freedom of speech, and today was no exception. Although I acknowledge his concerns, it might be unusual to make an exception for only one type of offence, but he raises an important point in recognising the value and importance of the jury. I hope again that the Minister will respond to the points made.

[The Advocate-General for Scotland (Baroness Smith of Cluny) (Lab)]

My Lords, this has been an important and informative debate about a fundamental part of the Bill. Given that there is opposition to Clauses 1 and 2 standing part, I will take a moment to set out the principal reasons for them and deal with some general points that have been brought up in the debate, and then I will deal with the specific amendments.

Clause 1 will remove the defendant’s ability to choose to elect for a Crown Court trial for all triable “either way” offences so that venue decisions are made solely by the courts. In doing so, it redresses the balance between victims and defendants by ensuring that they are based on the seriousness and complexity of the case and not the defendant’s preferences. Clause 2 is consequential on Clause 1 and ensures that the written plea procedure will operate consistently with the wider reforms once commenced.

We have heard contributions about confidence in the justice system, particularly in the context of jury trials. My noble friend Lady Chakrabarti and the noble Baroness, Lady Jones, have raised these issues, while the learned and noble Lord, Lord Keen, raised the presumption of innocence, another foundational principle. The Government are concerned about public confidence, and that is a reason why we are bringing forward the Bill. Those clauses will ensure that Crown Court time is prioritised for the most serious and complex cases, ensuring a more proportionate use of limited court resources and sparing victims unnecessary delays.

Magistrates’ courts are fair, robust and independent, and these clauses recognise that. Safeguards remain: both prosecution and defence can make representations on venue, and defendants retain full rights of appeal to the Crown and High Courts. Fundamentally, the Government do not believe that a defendant should be able to override the court’s judgment and secure lengthy delays in the hope that victims and witnesses walk away and the case falls apart before it is heard.

Some general points that have been raised include concerns about magistrates, particularly the complement of magistrates. This was raised by my noble friend Lady Bi, the noble Lord, Lord Macdonald, the noble Baroness, Lady Hamwee, and the noble and learned Lord, Lord Keen. We are increasing the numbers: we have a target to nearly double the complement of magistrates from a historic low in 2022 by 2028-29. Noble Lords will hear more detail about this from my noble friend Lord Lemos during this Committee, so I will not spend time on it just now.

I wish to address the request for evidence from the noble and learned Lord, Lord Keen—indeed, it was raised by more than one person. Again, my noble friend Lord Lemos will deal with this subject in more detail, but detailed modelling has been published by the Ministry of Justice showing the impact on the backlog of the measures. I am happy to point the noble and learned Lord in its direction and share it with him.

Before I turn to specific amendments, I want to address the question from the noble Baroness, Lady Hamwee: what is the collective term for noble Lords of nobility and learning? I wonder if I might suggest “a wisdom” of noble Lords, or indeed “a wisdom” of noble Baronesses —but perhaps others can suggest different terms as the debate goes on.

Amendment 2, tabled by the noble and learned Lord, Lord Thomas of Cwmgiedd, would require the Secretary of State to issue statutory guidance on the allocation of “either way” offences. He acknowledged that this is a probing amendment. I will address the points that he has raised, and indeed I hope to continue the conversation with him beyond this. The noble and learned Lord raised the question of judicial input. The Sentencing Council is currently the body that issues the guidance that is used. That council is chaired by judges; it has judicial membership and indeed it consults judges. It is of course an independent organisation, which is an important safeguard.

The further question that was raised was: should the sentence be determinative of the factors taken into account? Sentencing is not the only factor, but I acknowledge that it is significant. The noble and learned Lord raised important points that were raised also by the noble Lords, Lord Macdonald and Lord Marks. This debate is a good opportunity for us to consider these issues, and I would be happy to continue the conversation after today’s Committee.

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[Baroness Smith of Cluny (Lab)]

I wonder if it is simply a question of how you analyse the sequence of the events that take place in court, but I would argue that the allocation decision is made by the magistrates. The fact that it can be displaced by the right to elect does not in any way take away from the steps and the process that those magistrates have to undertake to make the allocation in the first place. The right to elect does not suggest that the allocation decision was wrong; it is simply a right to access the Crown Court. It is not implicit in a defendant exercising that right that the allocation decision was wrong. In my view, the magistrates are already undertaking the task that they will and are doing it very ably.

Magistrates also already make important venue decisions in other contexts, including youth cases, without a bespoke right of appeal against those decisions. Defendants will retain the right to appeal against any conviction or sentence in line with the reform process established by the Bill. The Government therefore do not consider a new appeal mechanism to be necessary or proportionate.

Amendment 1, tabled by my noble friend Lady Chakrabarti, seeks to give greater weight to the representations of defendants of good character, and where they are likely to receive a sentence of between one and three years if convicted. The Government do not consider there to be a principled basis for this. The court must apply the statutory allocation criteria as set out by the independent Sentencing Council in every case and, as I have mentioned, provide reasons. Our view is that the allocation should be determined by the seriousness of the alleged offending, not by the personal characteristics of the defendant. Previous convictions are an established aggravating factor and it is therefore right that they are relevant to the assessment of likely sentence and case seriousness. There is also no statutory or straightforward definition of good character. This amendment would create different allocation outcomes for defendants based on their personal characteristics, departing from the principle that defendants should be treated equally before the law. I note the remarks of the noble Lord, Lord Macdonald, and my noble friend Lady Levitt in that regard and align the Government with them.

Finally, on Amendment 5, tabled by the noble Lord, Lord Young of Acton, we are absolutely committed to upholding freedom of speech. It is a fundamental right and a defining value of our open and diverse society, and our legislation reflects this. The Sentencing Council’s allocation guidelines already take account of the seriousness and complexity of cases, and creating offence-specific exemptions would introduce a different allocation framework for a particular class of offences. This would undermine the principle that the venue should be determined by the court on the facts of the case rather than by the nature of the offence. A key safeguard is a fair trial before an independent court, not a defendant’s ability to choose the venue. Defendants charged with these offences will continue to receive fair and impartial justice, regardless of where the case is heard. This amendment would not support the aim of the Bill, which is to ensure that cases are heard in the most appropriate venue, based on their seriousness and complexity, preserving Crown Court capacity for the most serious and complex cases.

This is a Bill to deal with the acute crisis in our justice system in England and Wales, which the Committee is well cognisant of, but it is also a Bill based on principle. The findings of the review from the noble Lord, Lord Leveson, are much more than a set of practical fixes; they are principled proposals that make sense quite separately from any crisis. Removing the right to elect is the correct thing to do in principle, and I say that as someone who has conducted many criminal trials in a system that has no such right but none the less manages the important rights of defendants as well.

I thank all Members for these amendments. They are an important part of this debate, and I hope the explanations I have given of the Government’s position will allow your Lordships to support these clauses standing part of the Bill.

[Lord Keen of Elie (Con)]

Before the noble and learned Baroness sits down, might I raise one point with her? Alluding to the right to elect for jury trial, she described it as the means to “secure lengthy delays”. Are the Government seriously contending that the right to jury trial should be removed because they perceive that it is being abused at the present time?

[Baroness Smith of Cluny (Lab)]

I am not sure that that is what I did say; if I did, let me correct the record. The purpose of these clauses is to ensure that Crown Court time is prioritised for the most serious and complex cases, ensuring a more proportionate use of limited court resources and sparing victims unnecessary delays.

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[Lord Keen of Elie (Con)]

My Lords, I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for raising this issue in Amendment 4. As is the case with a number of his amendments, I note he has the support of other noble and learned Lords—the noble and learned Lords, Lord Burnett of Maldon and Lord Phillips of Worth Matravers, as well as my noble and learned friend Lord Bellamy. It appears to us that the Bill will necessarily require some reassessment of summary offences, so we welcome the point that the noble and learned Lord has raised with the Government.

Should this Bill become law as it stands, even without the original clauses that the Government have already removed, we will be making a significant, indeed fundamental, change to the way many offences are tried. Indeed, should the regulation-making power under Clause 5(1)—that is, the power to increase the magistrates’ maximum sentence—be implemented, we will see a great many more cases, some relating to serious offences, being tried in the magistrates’ courts on a summary-only basis. If the Government are going to proceed with these plans—and we sincerely hope that your Lordships’ Committee is able to demonstrate to the Government how flawed some of them are—Ministers must, as an absolute minimum, undertake a reassessment of the offences that may be tried as summary-only offences.

That said, we have some concerns about subsection (2) of the proposed new Section 22B of the Magistrates’ Court Act 1980. That subsection would require the Secretary of State to specify those offences that are triable as summary-only offences. As noble Lords across the Committee will appreciate, whether an offence is triable as a summary-only offence is defined in primary legislation, and it would be concerning to establish a regulation-making power for the same purpose, unless, of course, the regulations made under subsection (2) were merely intended to be descriptive of existing laws set out in primary legislation. Perhaps the Minister can clarify that point.

On Amendment 51, in the name of the noble Lord, Lord Marks of Henley-on-Thames, with regard to out-of-court settlement, where such settlements are appropriate then they should be considered, and they might well help to reduce the backlog that already exists in both the Crown Court and the magistrates’ court. That said, an additional requirement placed on the courts through primary legislation may not be the best way to promote appropriate out-of-court settlements. I suggest that that is a matter for further and more detailed consideration going forward.

We are a little curious about the proposal that courts be permitted to adjourn a case for a period of up to 28 days to enable an out-of-court settlement to be considered. It appears to us that there is room for that to be abused by more cynical defendants who may find themselves in court. We would have to consider what impact that might have on further delays in both the Crown Court and the magistrates’ court; as all lawyers will know, an adjournment for a period of up to 28 days can transmogrify into something materially different.

Having said that, we understand the force of the point being made by the noble Lord, Lord Marks, and, while it may not be a matter for primary legislation, it is surely a matter for further detailed consideration.

[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.

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

My Lords, these amendments are all designed to address a painful reality: that the proposals in this Bill will send more cases and more difficult cases into the magistrates’ court which would otherwise have been heard in the Crown Court. The fact is that the legal aid entitlement in the magistrates’ court is presently far more restricted than it is in the Crown Court. The rates are so low as to deter solicitors and counsel from undertaking work in the magistrates’ court, as we have heard from the noble Lords, Lord Shamash and Lord Jabbar.

It follows that defendants are at a serious disadvantage in the magistrates’ courts, and are consequently often unrepresented, which makes the cases more difficult and less likely to achieve just outcomes, making the disadvantage worse. That threatens in turn to stimulate a vicious circle of injustice flowing from this Bill. These amendments are entirely justified. The Government must address properly the issues of legal aid that they raise before this Bill comes into force.

[Lord Keen of Elie (Con)]

My Lords, these amendments address what has been universally acknowledged in this Committee to be a critical issue for the magistrates’ court and the implementation and possible success of these proposed changes to the law. The noble and learned Lord, Lord Thomas of Cwmgiedd, has therefore put forward an amendment which poses a simple and unambiguous question for the Government. I hope that we will hear from the Government a simple and unambiguous answer.

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[Baroness Hamwee (LD)]

My Lords, I support the noble Viscount and the noble Baroness, Lady Chakrabarti, on the distinction between the public interest and the interests of justice. The public interest is a matter of political judgment while the interests of justice are what we are here to serve. I thank both noble Lords—the noble Baroness being a noble Lord for this purpose—for raising this.

I also agree with the noble Viscount about the term “appropriate”. This term has seemed to me, over many years, to have been often used by social workers. I do not intend to disrespect them for this; it is often useful when they use it. I do not regard it so much as a weasel word but rather as one that is appropriate to certain contexts, but not this one.

[Lord Keen of Elie (Con)]

My Lords, I have lent my name to Amendment 10, but I recognise that my noble friend Lord Hailsham has provided what he describes as a raft of amendments which are intended together to establish a bulwark that will give a stronger safeguard against the removal of jury trial. In that sense, they are a secondary defence to the provisions in this Bill. We would rely on the primary defence, which is the retention of jury trial as it presently exists, but I acknowledge the reasoning behind my noble friend’s amendments—I just hope they will not be required because the Government will see sense with regard to the primary position.

We will come on to discuss related issues in the next three groups, and in particular whether we should see these fundamental changes to the justice system coupled with Henry VIII powers as reflected in Schedule 1 to the Bill. This is an ecosystem. All these elements are interconnected and if you interfere with one, you have an impact on the other.

Finally, I agree with the noble Baroness, Lady Hamwee, about the important distinction between public interest and the interests of justice. I would add only that the interests of justice can be seen as being orientated towards the interests of the defendant in a way that the public interest will not necessarily be, and therefore that distinction is important.

[Lord Lemos (Lab)]

My Lords, first, I thank the noble Viscount, Lord Hailsham, for meeting me beforehand and setting out his views in trenchant form, not just on this set of amendments but on the Bill as a whole. All these amendments seek to add new safeguards to Clause 3: “judge alone” trials for complex or lengthy fraud and financial cases. That clause already contains robust and careful safeguards, and it is important that I go through them. Cases can qualify for the policy only if they involve a scheduled fraud or financial offence and do not involve excluded homicide or indictable-only sexual offences. That is a very important exclusion. A preparatory hearing must have been ordered for the case, something that can happen only to manage exceptional seriousness, complexity or length—to the point that the noble Lord, Lord Marks, made. The case must be sufficiently complex or lengthy that jury trial cannot be in the public interest, and judges can decline to make an order for any other reason where jury trial is more appropriate. It is Crown Court judges who will be making these decisions and the Government’s view is that we trust them to apply the test set out by this policy properly.

Amendment 9 would allow an order to be made only when all co-defendants in a multi-defendant case were charged with an eligible fraud or financial offence. Amendment 10 would mean that every defendant would have to be charged only with fraud or financial offences. Ancillary offences, such as theft, would make a case ineligible—the link with theft is important. Defendants involved in the same alleged criminal schemes are often tried together, even though they are charged with different offences. Defendants in large-scale fraud and financial cases often face related charges, such as theft, that should, rightly, not be scheduled offences on their own. Severing charges, as these amendments suggest, or defendants, would not in the Government’s view be an efficient use of court time by requiring another separate trial. These amendments could encourage artificial charging decisions or unnecessary changes to the indictments to circumvent the statutory test.

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[Lord Keen of Elie (Con)]

My Lords, the temptation to leave the country is there, but I shall seek to resist it.

The amendments in this group—in particular, Amendments 12, 13 and 22—appear to us to be intended to try to find a halfway house that would give some protection to the right of jury trial, while giving the Government some opportunity to reduce the number of cases that are tried by a jury. We disagree in principle with the Government’s overall approach, and so it would be difficult, and indeed inappropriate, for us to support the ideas that underpin these proposed amendments. It is in these circumstances that we express no particular support.

I note the point made by the noble Lord, Lord Carlile of Berriew. It is an issue that has been raised before and that might be subject to further consideration in the light of the evidence from other common-law jurisdictions, but it is not one that immediately arises in the context of this group.

[Lord Lemos (Lab)]

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

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

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

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

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

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

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

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[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.

[Lord Keen of Elie (Con)]

My Lords, these amendments relate to issues we have already discussed at some length this evening, so I will try to keep my remarks relatively brief.

Clauses 3 and 4 would initially—I emphasise the word “initially”—apply to cases of fraud, meaning that those cases would be determined by a judge alone. As the noble Lord, Lord Marks of Henley-on-Thames, has already articulated, there are problems that the clause presents when one addresses exactly what is meant by “lengthy”, for example, or “complex”. Indeed, we believe that just because a case may be lengthy or just because there may be some element of complexity, that is not an appropriate basis for excluding a jury. I note that these provisions are not supported by the Bar Council, for example, or, perhaps more significantly, the independent reviewer of fraud, Jonathan Fisher KC, who has concluded that there is no justification for removing juries from fraud cases.

I began by referring to the fact that these clauses would “initially” apply to cases of fraud because, of course, there is no guarantee that the provisions would stop with fraud cases. We will be addressing that in the next group of amendments when we come to look at the Henry VIII powers and the issue of using statutory instruments, which was touched upon a moment ago by the noble Baroness, Lady Jones of Moulsecoomb.

We recognise that there is a backlog in the Crown Court. We recognise that there is also a backlog of cases in the magistrates’ court. However, we do not consider that this provision—which, as the noble Baroness, Lady Jones of Moulsecoomb, pointed out, would have a miniscule effect upon Crown Court sitting times—is the way forward in order to resolve those backlogs.

Courts and Tribunals Bill

Lord Keen of Elie Excerpts

Committee stage
Tuesday 10th November 2026 Lords Chamber

Moved by

[Lord Keen of Elie]

29: Schedule 1, page 35, leave out lines 1 to 8

[Lord Keen of Elie (Con)]

My Lords, I will move my Amendment 29 and address the question of whether Schedule 1 should stand part of the Bill. Amendment 29 seeks to remove the Henry VIII power to amend the list of offences considered complex and lengthy by only secondary legislation. To change the cases for which a “judge only” trial is permitted with a statutory instrument would, we suggest, be a completely unacceptable step and the Government have set out no reasoned basis for why such a step would be necessary.

The report from the Delegated Powers and Regulatory Reform Committee was published last week. It described the power to amend part 1 of the new Schedule 3ZA as an “inappropriate delegation of power” and recommended its removal. Indeed, as evidenced by the number of Peers tabling amendments to that effect, there is cross-party consensus that this is not a good use of delegated powers. Allowing the Secretary of State to add any offences to this list and to broaden the list to include crimes beyond the current scope of fraud and financial crime is a significant power that requires more scrutiny than the affirmative procedure for secondary legislation would provide for. The fact that there are only very narrow exemptions for the offences that could be included is also highly concerning.

At Second Reading, my noble friend Lord Howard of Lympne referred to this as “a Joseph Stalin clause”. He was certainly right to point out how far this power extends. I hope that the Minister will listen closely and take account of the concerns expressed by noble Lords on all Benches.

Even if we were to support removing juries from fraud cases, which we do not, your Lordships cannot be asked to effectively scrutinise such a significant provision when we have not been told of its scope. I beg to move.

[Viscount Hailsham (Con)]

My Lords, I have two comments. I entirely agree with what my noble and learned friend said. Although I always welcome the affirmative procedure rather than the negative procedure, one has to recognise that the affirmative procedure does not provide proper parliamentary control for the fundamental reason that statutory instruments are not amendable. I have never, in 40 years, understood the reason of principle why statutory instruments are not amendable by the House. I recognise that it is for the Executive’s convenience, but that is not the same thing.

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

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

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

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

[Lord Keen of Elie (Con)]

My Lords, it occurs to me that the Minister may have missed his vocation: he is able to advance an unstatable case with at least a scintilla of conviction. We cannot accept the explanation advanced. I note the support across the Committee for removing Part 2 of Schedule 1. The suggestion that it might be required to introduce further new laws unknown at the present time was met eloquently by the noble Baroness, Lady Chakrabarti, who pointed out that such laws would almost certainly be introduced by way of primary legislation anyway. I make it clear that we will be returning to this on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment 29 withdrawn.

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[Lord Keen of Elie (Con)]

My Lords, the Clause 5 stand part notice is in my name. We have a number of diverse amendments in this group, but they all direct attention at the same issues, they are all sounding the same warnings, and they come from across the Committee.

There are two essential elements. The first, as remarked upon by the noble Lord, Lord Marks of Henley-on-Thames, is the improper constitutional mechanism of Henry VIII powers being exercised by the negative procedure, with the result that the length of imprisonment that can be imposed upon those citizens who appear before the magistrates’ court may be increased. The second is the unrealistic assumptions that are being made about the ability of the magistrates’ courts to cope with the increased pressure that is going to be placed upon them, not only in regard to their ability to accommodate “each way” cases but by the transfer of further cases, which will be listed as and when sentencing powers are extended.

I am struck by the observation made by my noble friend Lady Sater, repeated by the noble Baroness, Lady Hamwee, about the reference to variables and unknowns. There is a complete lack of evidence from the Government as to how these changes will impact upon the present capacity of the magistrates’ courts to accommodate the increased load that is being placed upon them.

It is in these circumstances that we will return to this on Report and we will support those further amendments that seek to challenge the Government’s ability to circumvent Parliament—because, in essence, that is what is being done here—by way of the negative procedure to increase sentencing powers.