Courts and Tribunals Bill

Lord Lemos Excerpts

Tuesday 10th November 2026 Lords Chamber

[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.

[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.

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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.

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

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

[Lord Lemos (Lab)]

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

[Viscount Hailsham (Con)]

My Lords, after 40 years in Parliament, I have come to revere the guidance given by St Brevita and the wise words of Father Concision, both of whom are doubtless known to the present occupants of the episcopal Bench, so I shall confine myself to three points. First, I thank the noble Baroness, Lady Chakrabarti, for her support. I always welcome it; we very frequently think along the same lines. Secondly, I am glad that Members of your Lordships’ Committee focused on the words “appropriate” and “public interest”. That is a matter of some concern and perhaps one that we should refer to later. Lastly, these amendments—all the occupants of the raft—raise a number of serious issues which we may well revert to on Report. That said, I beg leave to withdraw the amendment.

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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.

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

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

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[Lord Lemos (Lab)]

My Lords, this measure is about reducing the ask we make of members of the public. I think we can all agree that being required to serve on a jury, not for the typical two weeks but for months, could have significant consequences for someone’s personal and professional life, and the impact is likely to be worse for someone self-employed or with caring responsibilities.

Clause 3 follows a long line of similar recommendations made by distinguished judges and independent reviewers, including Lord Justice Auld, in 2001, and Lord Roskill, as far back as the 1980s. Fraud and financial crime have continued to evolve since then, becoming enormously more complicated and with vast volumes of digital evidence, which are still dramatically increasing. That means that, for a very small number of cases, we need a new model that is fit for the modern age.

In relation to the comments made by the noble Baroness, Lady Jones, I want to make it clear that we are not suggesting this is going to save an enormous number of court days or reduce the backlog. This is about the jury experience, as I said in relation to the last group; it is not about jury competence. We do not think that there will be many of these cases. This is not about who can understand dishonesty better but about reducing the burden on ordinary people’s lives from sitting on long trials, with which I am sure the noble Baroness, Lady Jones, would agree, at least in principle.

I agree that disclosure and the case management of fraud cases must improve, and this Government have agreed in principle to many of Fisher’s part 1 recommendations and others made by the noble and learned Lord, Lord Leveson. However, even after effective case management, some trials are likely to remain highly complex or lengthy. This is for those exceptional cases—and I stress the word “exceptional”.