Courts and Tribunals Bill

Lord Macdonald of River Glaven Excerpts

2nd reading
Tuesday 27th October 2026 Lords Chamber

[Lord Macdonald of River Glaven (CB)]

It is always a great pleasure to follow the noble and learned Lord, Lord Garnier, which I seem to do quite often. It is also a great pleasure to welcome the noble Lord, Lord Stace, and to congratulate him on his maiden speech. I note that he sat down almost exactly on eight minutes, which is a very good augur for the future. Because it is my first opportunity to do so, I should also like to welcome the Minister to the House, and particularly to the Government Front Bench. He may recall that some 20 years ago or so, when I was head of the CPS, he was one of our non-executive directors and, I may say, one of our very best. He will also recall that in those days we both had somewhat darker hair, although, rather annoyingly, he seems to have retained more of his.

This is my first opportunity to welcome the noble and learned Lord, Lord Leveson of Liverpool, whom I am delighted to see in his place. I am sure that his contributions to the House will be erudite and penetrating, although that does not guarantee that we will always agree.

It is important to acknowledge that we are dealing with the consequences of a funding crisis. That is too often forgotten. Governments in recent years have made the choice not to invest in criminal justice. The direct result has been the backlogs that we now see. The Justice Minister in the other place claimed recently in the media that even if there was not a funding crisis and the backlogs that we are confronting, the Government would proceed with these reforms anyway as a matter of principle. I found her unpersuasive on that point. We are dealing with the results of a funding crisis.

My own service, the CPS, in the not-so-distant past lost some 30% of its budget and some 30% of its front-line prosecutors. Imagine if the National Health Service lost 30% of its front-line doctors. Courts went dark and barristers, because of the collapse in legal aid, left the criminal Bar in droves. That is the situation that we are now confronting. Covid did not help, but successive Governments have used it as a shield for problems which pre-existed it.

Others noble Lords have dealt with matters of principle. I accept that people can have fair trials in front of judges without juries. That is obvious. All over the world, people have fair trials in front of judges. In our commercial courts, people have fair trials in front of judges. However, I want to address the Minister on a more practical issue: will the magistrates’ courts be able to cope with the massive influx of work which this Bill will direct towards them?

With the greatest respect to the noble and learned Lord, Lord Leveson, there were some things about his report that I disagreed with. We debated these disagreements publicly on a podcast. I took the view of the Institute for Government that the reforms that he was proposing would save so little time in the Crown Court that they were not worth the number of jury trials that would be lost as a result. However, his report had one singular merit—it had many merits—that I want to refer to now: that most of the cases removed from juries under his proposals would be presided over instead by a Crown Court judge and two magistrates. The Government’s new proposals, resiling from his report, were trailed in the press as the Government saving jury trial. The new Prime Minister, during his by-election campaign, expressed his great attraction for jury trial and rather implied that the Leveson report would be dead as a result of his affection for it, but that has not happened. The Bill before the House does not succeed in creating any diminution in the right to jury trial. That may be necessary for all the reasons which noble Lords have expressed.

However, I seriously question whether the magistrates’ court, in its current condition, is in a fit state, even with the additions of magistrates which have been described, even with the additions of new district judges that have been described, could deal with this influx of work. At the moment, trials that are conducted in magistrates’ courts are of very minor matters, rarely lasting longer than a day. That will change. Magistrates will keep within their jurisdiction cases which will last for two, three, four or perhaps five days. It is very easy for a lay magistrate to get a day a month off work to do their duty in the magistrates’ court or perhaps even two days a month, but persuading an employer that they should have three or four days—which might stretch into five or six days because the trial takes longer than expected—is a very different kettle of fish.

Journalism is not always terribly accurate, but I found this piece of journalism quite persuasive. A couple of months ago, maybe a little longer, the Times sent a couple of journalists down to a magistrates’ court in the south-east of England. They found a situation of absolute chaos. There were not enough magistrates, barristers not turning up, prisoners not being delivered and witnesses not turning up. If the magistrates are now to deal with two, three, four or five day-long cases, with more serious cases, with more powers of sentencing, we will need many more magistrates, many more district judges, probably more buildings and certainly a more efficient means of delivering prisoners to the courts.

I am not in principle opposed to courts making allocation decisions. In most of the fair trial world, it is not the defendant who decides where he or she should be tried. The noble and learned Lord, Lord Keen, will correct me if I am wrong that in Scotland it is largely the prosecutor who makes that decision. I am not against that. However, I am opposed to a situation which gives courts the right to decide allocation but pays no account to the resources of the courts in question. I urge the Minister to tell the House what modelling has been done to convince the Government that the magistrates’ courts can take on this level of work and how much money will be necessary to enable them to do so. How many more lay magistrates will we need and how many more district judges?

I have never understood why we do not allow defendants to elect trial before judge alone if that is what they wish. I understand that the Government feel that such a proposal would be inconsistent with their new idea that allocation should be a matter for the judges, but if defendants want to be tried by judges, they should be allowed to make that decision. I urge the Government to reconsider their position on that.