Courts and Tribunals Bill

Lord Marks of Henley-on-Thames Excerpts

2nd reading
Tuesday 27th October 2026 Lords Chamber

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

My Lords, this has been a powerful debate, memorably marked by the excellent maiden speech of noble Lord, Lord Stace, which certainly did not support a diagnosis of imposter syndrome. It was a pleasure to hear his measured endorsement of the open discussion of difficult issues with people of differing views—that is exactly what we hope to achieve in this House. It was also a pleasure to hear the powerful speech of the noble and learned Lord, Lord Leveson, whose report has so influenced the Government and this Bill, including his unanswerable assertion that we need a combination of increased funding, structural reform and increased efficiency.

My noble friend Lady Brinton spoke to the issues facing victims in the criminal justice system. I will speak to the Bill’s more controversial proposals for that system, and on an issue that I believe should be, but is not, covered by the Bill.

The noble Lord, Lord Macdonald, and others are clearly right that we are trying to respond to the years of underfunding that have led to the appalling backlog of 80,000 cases awaiting Crown Court trials. However, it is not proven that restricting jury trials would markedly reduce the backlog. Take into account, for example, that judges would be spending time writing judgments and that appeals would proliferate. Effective measures to reduce delays should include increased sitting days, reliable prisoner transport, maintaining the courts, and smarter use of new technology for listing and case management. As the Minister said, the Government have successfully set out on this process. Trying two cases in longer court hours over two sessions a day, as mentioned by my noble friend Lady Brinton, would significantly cut delays.

The Crown Court backlog has now stabilised, as the noble Baroness, Lady Mallalieu, pointed out. From January to June, it rose by just 367 cases—0.46%. Although the noble and learned Lord, Lord Leveson, has some arguments with the interpretation of the present figures, there are still ways of cutting the backlog that do not involve the entire suite of proposals in the Bill. Yes, we must reduce it further, but why have the Government not revised their projections, given the recent improvement of which the Minister spoke and which the figures suggest? The noble and learned Lords, Lord Thomas of Cwmgiedd and Lord Garnier, pointed out that we need more reliable and fuller information before we pass the Bill.

The serious problem is now in the magistrates’ courts, with a backlog in June, even excluding single justice procedure cases, of about 169,000 cases—up 16% in a year. Yet the proposals in the Bill, removing the right to elect jury trials and increasing magistrates’ sentencing powers, would transfer to them many more cases, and they would be the bigger and more time-consuming ones.

In addition, the threat to jury trials has not disappeared. First, there is the removal of the right to elect. Along with the noble Baroness, Lady Levitt, I accept that there is some evidence of hardened criminals gaming the system and electing for jury trial for bad reasons: to delay the trial, to weaken prosecution evidence, or to build up credit for time on remand or under bail conditions Some pretty trivial cases do come to the Crown Court, but the gaming of the system could be addressed, partly at least, by increasing the discount for an early guilty plea, as the noble Baroness, Lady Kennedy, suggested.

We believe that the right to elect a trial by jury is a cornerstone of our liberty. Juries democratise criminal justice, as the noble and learned Lord, Lord Garnier, the noble Baroness, Lady Kennedy, and others have said. The public trust juries. They think the system fair. They believe that 12 heads are better than one. They know different judges will reach different conclusions on the same evidence. They see judges as liable to be influenced by their own prejudices, social backgrounds and beliefs, as the noble Lord, Lord Russell said. The Bill proposes an allocation by magistrates alone, with no right of appeal. However, the best people to decide on allocation are Crown Court judges, who hear jury trials all the time, not magistrates who lack that experience. Denying appeals on allocation is unfair.

Along with the noble Lord, Lord Howard, I believe there should be a clear distinction between persons of hitherto good character, who would suffer irreparable harm to their reputation, careers and relationships from any conviction, and seasoned offenders, for whom the consequences of conviction are limited to the sentence imposed.

There are further practical pitfalls to removing the right of election, going beyond the pressure on magistrates’ courts from increased case numbers, as was well explored by the noble Lords, Lord Macdonald and Lord Carlile, and the noble Baroness, Lady Jones of Moulsecoomb. Legal aid is far more restricted in magistrates’ courts than in the Crown Court. If magistrates are to handle more and heavier cases, we must improve the availability of legal aid, just as the right reverend Prelate the Bishop of St Edmundsbury and Ipswich argued. Lack of representation in the magistrates’ courts is a recipe for inefficient and over-lengthy hearings, and for unfairness and unsafe convictions. Unsafe or unjust convictions will lead to more appeals, overburdening the Crown Court.

I turn to trial by judge alone in so-called complex or lengthy cases. The expectation was that this be just for long and complex cases of financial crime, as per the initial list in the Bill. Certainly, some fraud trials are extremely complex, but not all of them. Good, clear presentation by a competent prosecution team, using new presentational technology, and limiting the indictment to reflect the defendant’s criminality, can usually reduce both complexity and trial length. More importantly, the issues in even these cases are so often typical jury issues. What did she know? Did he sign that document, or was his signature a forgery? Was her behaviour dishonest or not? These are typical, human jury issues. As for trial length, we cope with lengthy trials now, and a modest increase in jury expenses, after a certain time had elapsed, would ease the burden.

While I accept that there are complex financial cases that could be tried by judge alone, they are not many. But the Bill has a nasty sting in the tail regarding “judge alone” trials. The initial list of offences in Schedule 1 is a list of financial crimes. Homicide offences and sexual offences would be expressly excluded, but that should be obvious. However, the express exclusion of those cases suggests a threat that the Government could go far further than fraud and complex financial cases. That is the point of the insidious and dangerous power in Part 1 of the schedule: to add any non-excluded offence to the list of “judge alone” offences—the “Joseph Stalin clause”, as the noble Lord, Lord Howard described it. The hard-won victory of campaigners against the restriction of jury trials originally proposed is to be at the mercy of an order from the Secretary of State. That is unacceptable.

Next, there is the proposed increase in the sentencing powers of magistrates. Again, that would lead to a massive transfer of cases to the magistrates’ courts, increasing the pressure on the magistrates and increasing the risk that defendants will be unrepresented and wrongly convicted or excessively harshly sentenced.

I turn now to an issue that should have been addressed in this Bill but is not. The noble and learned Lord, Lord Leveson, made a number of important recommendations in his report that have not found their way into this Bill. He devoted his first 10 recommendations to diversions. He recognised that criminal courts may not be the best forum for handling low-level offences, and so recommended the greater use of out-of-court resolutions. He spoke of cautions, conditional cautions and other mechanisms for disposal, of rehabilitation programmes for drug and alcohol abuse, and of other health interventions. We should be keeping far more low-level offenders, both children and adults, out of the criminal justice system when it is plain that their problems should be handled constructively and with sympathy, rather than through blunt and often profoundly unhelpful recourse to the criminal courts. The Minister, and the former Minister, the noble Lord, Lord Timpson, have been very supportive of alternative disposals or out-of-court resolutions—both unattractive names for a far more constructive approach than we have at present.

I believe that this thinking should reflect our approach not only at the charging stage. Courts should be bound to consider, early in the criminal process, out-of-court resolutions in place of fully fledged criminal proceedings, much as civil courts consider mediation. There is potential either to hard bake criminality into the lives of low-level offenders, as we do at present, or to have a more humane and sensitive system.

This thinking can be extended to many areas. Take, as one example, unauthorised absence, by which parents who fail to ensure their children’s attendance at school are prosecuted under the Education Act 1996, are liable to be fined and, in extreme cases, can be sentenced to imprisonment. Yet so many of these cases concern children who simply will not go to school, for medical or psychological reasons, however hard their parents try to get them there. They need a therapeutic approach, not a penal one. A film on this topic of unauthorised absence is to be given a parliamentary screening in December. We have to change our approach not just to this but to other low-level offences that put people at risk of inappropriate prosecution. It is not just too many offences that clog up our courts; it is the mindset of a system that has long been too unadventurous to limit criminal proceedings to the cases where they are necessary and appropriate.

Courts and Tribunals Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Tuesday 10th November 2026 Lords Chamber

[Baroness Hamwee (LD)]

I am not seeking to instil chaos—at least, no more chaos than there may be at the moment. It is a question of the balance between speed and fairness, appropriateness—any of those nouns. I do not think that everything should be subsumed to speed.

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

My Lords, I start from the position that we on these Benches support the right to jury trial in serious cases. I expect fully that we will support the noble and learned Lord, Lord Keen, the noble Viscount, Lord Hailsham, and the noble Baroness, Lady Jones, in opposing this clause, should they put it to a vote, as I certainly expect them to on Report.

I agree with every word of the noble Viscount, Lord Hailsham, and the noble Baroness, Lady Mallalieu, and so many others in respect of jury trial. I agree with all those, in this Chamber and in the country at large, who believe that jury trial is one of the cornerstones of our liberty, and that the right to trial by one’s peers is trusted and relied on as a protection against arbitrary abuse of power. I entirely accept that the public trust juries. By and large, they believe that the secret deliberations of 12 jurors in the privacy of the jury room are more likely to produce a fair and unbiased result than the decision-making of one judge. Judges differ, to our knowledge and experience, in background, influences, prejudices and therefore conclusions, from other judges hearing the same evidence and determining the same case.

I also believe that the jury system democratises our justice by bringing the public into the process of making findings of guilt or innocence. My experience of how seriously jurors take their duty when sitting on juries—although it is a distant experience, because I have not practised criminal law for a long time—reinforces that belief in how seriously they take their duties, as does the experience of talking to members of the public who have served on juries.

I agree with all those who see it as a strange and unjustified position that we should take a step as radical as removing the right of election for an ephemeral reason, such as reducing the Crown Court backlog, when there are other ways of reducing the Crown Court backlog. I accept it is dreadfully serious but it is already being tackled in other ways, and quite successfully. In any event, the evidence that removing the right to elect will have the effect of reducing the backlog is painfully thin.

For there to be a right to jury trial, there has to be a right of election in cases that are serious enough to be indictable only or triable either way. But that is not to say that the classification of which offences should be triable either way or, indeed, indictable only cannot change. Of course it can. The noble Baroness, Lady Chakrabarti, conceded that point, along with others; the noble and learned Lord, Lord Thomas Cwmgiedd, made the point as well. However, I suggest that we would lose a democratic right of great value if we were to abolish the defendant’s right of election.

I turn to Amendment 1, on the importance of good character in the determination of the appropriate allocation for trial, which is in the names of the noble Baroness, Lady Chakrabarti, who explained it fully and eloquently, the noble Viscount, Lord Hailsham, and the noble Baroness, Lady Goudie. I argued in the King’s Speech debate, at a stage when the likely length of sentence was going to be the determinant of a right to jury trial—now, thankfully, gone from the Bill—that defendants of good character were at risk only of a low sentence and therefore were much more likely to be denied a trial by jury than defendants with serious criminal records.

Of course I accept that justice needs to be equal for everyone and that everyone has the same human rights, as my noble friend Lady Hamwee explained. Nevertheless, I am forced to disagree with the noble Lord, Lord Macdonald of River Glaven, on that point. No one is arguing that not all defendants deserve justice. However, the fact is that defendants of good character are at serious reputational risk from a conviction, as my noble friend Lady Hamwee explained. They face not only the risk of the sentence but risks to their careers and to their relationships, to which one can add risks to their mental health and well-being. For defendants with many previous convictions, the likely sentence would be much higher. The effect, therefore, of taking into account only sentence and treating sentence as the determinant is that the defendants of bad character, or with previous convictions, are much more likely to get a jury trial.

It is idle to suggest that the chances of acquittal in the magistrates’ court are the same as the chances of acquittal in the Crown Court. The noble Lord, Lord Young of Acton, explained the difference in connection with speech offences, but the experience of the public at large and of the legal profession is that defendants of good character, at least, have a better chance of acquittal before a jury than they do before magistrates. It is therefore of great importance that good character is taken into account at the allocation stage, otherwise we would not be treating all defendants equally. We would be according a jury trial to defendants with previous convictions but not to those of previously unblemished character. We ignore that at our peril. Those who say that it is an equal playing field between magistrates’ courts and Crown Courts are drawing the wool over their own eyes.

My understanding, though, is that it is intended in the Bill that magistrates will be guided by the seriousness of the alleged offence and will be expected to leave out of account considerations of character and history. I would be grateful if the Minister would elucidate that, and explain and justify—without reference necessarily to the amendment from the noble and learned Lord, Lord Thomas of Cwmgiedd, and others—the guidance that is expected to be given to magistrates on the criteria for allocation between Crown Courts and magistrates’ courts in contested cases.

I turn to the right of appeal against allocation by the magistrates’ court, which my noble friend Lady Hamwee’s Amendment 7 would provide and which we support. Why should a decision of such fundamental importance be treated as no more than a case management decision for the magistrates alone? Magistrates do not, as a matter of course, have experience of jury trials. They do not know or need to know how jury trials work. The people most qualified to determine whether a case warrants a jury trial are the Crown Court judges who hear jury trials day in, day out. There should plainly be a right of appeal against the refusal of a jury trial. I argue that such an appeal should lie with the Crown Court, with the judge having the right to reverse the magistrate’s allocation decision simply if he or she took the view that it was the wrong decision.

I turn finally to the Clause 2 stand part notice in my name. I have notified the Government that that is not to be pursued. I ask the Minister to treat it as probing and ask him merely to explain how the mechanism in Clause 2 would work. By removing the right to object to the venue for a trial when the case comes before the magistrates, it is proposed that the decision on allocation is for the magistrate alone, but Clause 2 introduces a right to make representations.

I am not objecting to the right to make representations; it is a question of how that right is to be exercised and what the representations can cover. Is a representation to be only on the question of whether the sentencing powers of the magistrates’ court would be adequate to sentence the defendant for the offence? What would the criteria be? How far would they be confined to the nature and seriousness of the offence before the court? To come back to the amendment from the noble Baroness, Lady Chakrabarti, would factors relating to character be considered? Would factors relating to the defendant’s circumstances—for example, family ties, housing, children, employment, mental health, addiction and treatment needs, the effect of delaying a trial on sentencing, and the effect of delaying sentence—be permissible subjects for such representations? Would there be a judgment, giving reasons as to why the magistrate’s sentencing powers would be adequate—or why not, as the case may be?

These are important issues as to how this new provision might work. All I seek on Clause 2 is clarity as to what the Government propose and how they envisage that the allocation might work.

[Lord John of Southwark (Lab)]

The noble Lord spoke about the almost inadequacy of trials in the magistrates’ courts, but it is my understanding that about 90% of all criminal trials occur in magistrates’ courts at this time. Is he saying that those trials are unfair or inadequate in some way?

[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.

--- Later in debate ---

Amendment 3 from my noble friend Lady Chakrabarti and Amendment 7 from the noble Baroness, Lady Hamwee, seek to create a new right of appeal against allocation decisions made by the magistrates’ courts. Magistrates’ courts routinely make allocation decisions and have done so for many years. This is bread-and-butter work for magistrates and district judges. These reforms do not transfer allocation decisions to a new decision-maker or create a new test. They leave the allocation decision with the magistrates’ court, applying the same allocation framework as before. There is no reason to suppose that they will not be well able to undertake that task. Judicial review already provides a route to challenging the lawfulness of an allocation decision. These amendments would go further by creating an appeal against a judicial allocation decision. The Government are clear that all modes of trial are fair, and therefore we do not consider that disagreement with an allocation decision should of itself warrant a separate right of appeal.

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

I am just concerned to question whether the noble and learned Baroness is right in her argument that allocation decisions regularly made by the magistrates are the end of the matter, because, of course, in cases triable either way, the defendant has the right of election. The magistrates may say, “Well, we take the view that this case can be tried by the magistrates”. The right of election then supersedes that to give the defendant the right to choose jury trial, so it is wrong to say that the final allocation decision is taken by magistrates. I do not know whether that does not make a difference. I suggest that it does make a difference to the question of whether there ought to be a right of appeal.

[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.

--- Later in debate ---

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

My Lords, having listened to the noble and learned Lord, Lord Thomas of Cwmgiedd, I have very little to say on reclassification. I said on the last group that I see no argument that can be mounted to suggest that the borderline between summary-only offences and “either way” offences is unchanging. Of course, everybody sensibly accepts that there are some “either way” offences that could be summary-only. That brings about a need to consider reclassification, as the noble and learned Lord described.

I will speak to my Amendment 51 on out-of-court resolutions. At Second Reading, I pointed out that the noble and learned Lord, Lord Leveson, had devoted his first substantive chapter and the first 10 recommendations in his first report to the importance of reaching out-of-court resolutions. His aim was to take low-level criminal offences that could properly be addressed with therapeutic and cautionary responses, aimed at diverting those offences out of the criminal justice system altogether, and address the issues that caused people to commit such offences in the first place. Indeed, he entitled that chapter “Diversions”. That is the issue I seek to address.

At Second Reading, I took as an example the prosecution of parents in unauthorised absence offences under the Education Act 1996, by which parents can be—and are frequently—prosecuted for not ensuring that their children attend school. Very often, the background is that those children are traumatised or unwell and refusing to go to school, however hard the parents, who are the ones ultimately prosecuted, try to get them there. That process and the discord in the home cause real trauma. The prosecutions that result end up in fines that are often unpaid and, in extreme cases, they can result in prison sentences. Often, parents and whole families are dreadfully affected by the process. Many are driven entirely out of the school system and find themselves relying, often unsuitably, on home schooling, or attempts at home schooling, to replace that dreadful cycle. In those cases, what is needed is a constructive and therapeutic approach that helps families with the causes of the non-attendance and addresses the health and social issues causing the damage. So it is with a vast number and range of cases of low-level crime.

In answer to the intervention in the last group, I talked about the cases of low-level crime that went before the magistrates. Many of those cases are suitable not for the criminal justice system at all but for diversions and out-of-court resolution. Many cases of minor dishonesty, including low-level shoplifting, now often do not even get to court because there are not the resources for the prosecution to proceed. A lot of cases of low-level violence, criminal damage and drug and alcohol offences can be dealt with by way of diversion, partly because they originate not in real criminality but in inadequacy or social and personal difficulties.

The noble and learned Lord, Lord Leveson, looked at and discussed rehabilitation programmes for drug and alcohol abuse. I hesitate to address your Lordships in his presence, when he wrote the report on which I am relying, but the point is that he looked at other health intervention programmes to prevent people being brought into a life of criminality. At the centre of his thinking in this part of his report—he will correct me if I am wrong—was the view, widely accepted by experts in the field and by those in this House who are expert in these areas, that if we can divert people away from low-level crime by addressing the issues that cause them to commit offences then we can encourage rehabilitation and avoid future crime by providing early help. That, of itself, has a huge societal benefit.

The noble and learned Lord’s report and recommendations were addressed chiefly to encouraging the police and the Crown Prosecution Service to divert cases to out-of-court resolutions before they ever get to court, even before charges are laid. We fully support that. Yet there is nothing in the Bill on that. I am grateful to the noble Lord, Lord Lemos, for engaging with me and others in discussing this, and for addressing the issue sympathetically at Second Reading, when he said that these are matters that we can discuss. It is very important that we do so.

My Amendment 51 is proposed on the basis that it is not only before charges are laid that out-of-court resolution should be considered but that, even when the criminal process has been commenced, diversion and out-of-court resolution should be explored. If it were not the case that we were going to say, in a defeatist way, that it is too late, we would not then see so many cases in our courts when an intelligent observer feels bound to ask, “Why is this defendant here?” And not only an intelligent observer—the same question is routinely asked even by police officers, as well as by probation officers, families, friends and social workers.

My amendment therefore bites on the first time that a person charged with an offence is required to indicate a plea. Indeed, it would impose a duty on those responsible for prosecutions to consider those prosecutions before the first time the defendant is asked to plead. Clearly, of course, many cases will not be suitable for out-of-court resolution, but the report of the noble and learned Lord, Lord Leveson, and my amendment are based on the proposition that many are, and that greater resort to out-of-court resolutions has the potential to save many from continuing criminality.

The report of the noble and learned Lord, Lord Leveson, was concerned with reducing the case load in the courts and reducing the backlogs. That was his original target. However, his report needs to be read much more widely than that. Initially, the reduction in the case load would come in the magistrates’ courts because we would be talking about low-level crime, but it would filter up to the Crown Court, as all experience tells us that a life of crime starts with minor offences that are charged, tried and sentenced in the magistrates’ court but continued offending gets worse. We hear about prisons being academies of crime. Whether or not that is the case, the fact is that lives of crime tend to get worse as they go on, and it is the failure to adopt out-of-court resolutions for those cases where early help and early intervention could divert people out of the criminal justice system that is responsible for part of that.

In this amendment our ambition is large: we are trying to stimulate a crime reduction programme born of a rethink of the way that we resort to the criminal justice system—a rethink that is radical and potentially of great social benefit. This amendment is a modest step on that road. It is inspired by the concentration of the noble and learned Lord, Lord Leveson, on this aspect. It has the prospect of reducing case loads, but also of reducing crime, focusing our attention on the causes of crime and preventing lives being wasted.

[Lord Macdonald of River Glaven (CB)]

My Lords, the noble Lord—wrongly, in my view—disagreed with part of my earlier speech so I want to say how much I agree with his Amendment 51 and with what he has been saying for the last 10 minutes or so.

This is important for all the reasons that the noble Lord has outlined, particularly in breaking a pattern of crime and offending that starts with that first court appearance, and in freeing up space in the magistrates’ courts, which we are told are going to be taking on more serious and more complex cases. He is absolutely right. We all know there are far too many people with addiction issues and mental health issues within the criminal justice system, which is ill suited to deal with them. Much the same could be said about our prison system.

I put in one further plea. A few years ago, in about 2012, I was a member of something called the Independent Commission on Youth Crime and Antisocial Behaviour. We recommended and proposed to the then Government that a programme of restorative justice be implemented across the country. We called and heard a lot of evidence, and went to a number of jurisdictions where restorative justice programmes were in effect. These were wonderfully successful in stopping crime, satisfying the victims of crime and saving the criminal justice system the trouble of trying cases which did not really need to be tried. The noble Lord and this amendment have my full support.

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[Lord Jabbar (Lab)]

My Lords, this is an area in which I am particularly informed by my own professional experience assisting defendants and appellants in court matters. I declared my interest at Second Reading as the executive director of the Death Penalty Project.

I want to make a small comment. Effective defence representation is not peripheral to an efficient criminal justice system; it is one of the things that makes the system efficient and possible. At Second Reading, I distinguished between access to court and access to justice. Getting someone to a courtroom more quickly is of limited value if, once they are there, they cannot obtain proper legal advice, understand the proceedings or participate effectively. There is also a practical point. A properly prepared lawyer can identify real issues early, deal with evidential problems, narrow what is evidently in dispute and help ensure that a case is ready to proceed. That benefits the defendant as well as victims, witnesses and the courts. When a hearing is ineffective, everybody loses: court time is wasted, victims and witnesses may have attended unnecessarily, and practitioners have to return, and another case then goes back to an already overcrowded list. This is why I have considerable sympathy with the amendments.

Criminal legal aid is not simply about remuneration; it is part of the infrastructure of the criminal justice system. If we want cases to be resolved earlier, we need effective advice early. If we want trials to proceed when listed, we need advocates who are available and properly prepared, and, as my noble friend Lord Shamash said, they must be sufficiently remunerated so as to attract lawyers to the work. We need the next generation of lawyers and practitioners who want to be involved in these kinds of cases. If more serious work moves into the magistrates’ courts, as discussed earlier, that work does not become less serious or less complex just because the venue has changed.

I support the Government’s objective in reducing delay. It is precisely because I want these reforms to succeed that I regard sustainable legal aid and effective representation as part of the reform programme.

[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 Chakrabarti (Lab)]

My Lords, I support the noble Viscount, Lord Hailsham, on his raft—if that is what it is—and thank him for the succinct and self-deprecating way that he spoke to all his amendments. I have signed some and not others, but that should not be indicative; I support him generally.

The public interest is a much broader and more amorphous concept than the interests of justice. This Committee is in the justice business. The public interest is about the economic well-being of the nation, national security, et cetera. Given the Government’s arguments for this Bill, and given what the noble and learned Lord, Lord Thomas of Cwmgiedd, said about “judge alone” trials, the front door and the back door, let us be mindful that this is not the magistrates’ courts, which have the lay element; this is the “judge alone” trial. It should at least be about the interests of justice rather than some broad, rather vague, very difficult to probe—let alone review or litigate—concept of the public interest.

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

My Lords, in this group I have Amendments 17, 21 and 25. All these amendments are against the background that “judge alone” trials in the Crown Court are intended by the Bill as drawn, subject to a later debate, to be as per the list of offences in part 1 of the new schedule in Schedule 1. This is restricted to cases of financial crime that are genuinely of real complexity or inordinate length.

I say at the outset that there are many cases of serious and complex trials, some of substantial length, which in the end turn out to involve what I would characterise as jury issues. These are cases where the shape of the fraud or the scheme involved, usually to get substantial sums of money, may be difficult but not so difficult that a competent prosecution team could not present and explain it using sensible presentational aids and technology—not Claude, I hasten to add—to a jury. It is dangerous of us to underestimate the collective understanding of juries. Certainly, 12 heads, which I said are better than one, involve a collective decision-making and mutual information-giving exercise. They discuss the case in the jury room as it is going along. In the end, I do not believe that they miss much.

My point is that, once the nature of the fraud is understood, questions of the guilt or innocence of individual defendants, on individual counts on the indictment, even usually boil down to very human questions of fact. These are essentially jury questions: did he sign that document? Did she tell him that she knew what he was doing? Did she know what he was doing? What did he know or believe? Was he or she dishonest in what they did? At Second Reading, I heard those who said that dishonesty is essentially a matter for a judge, but I believe that questions of dishonesty in serious cases are generally better tried by juries. Then there is the weighing-up exercise: what is it in the evidence that drives the conclusion on any given point?

Frankly, I do not believe that there are many cases that cannot fairly and comprehensively be presented to a jury. If any are to be tried by judge alone, they should be genuinely of such complexity and length that they are unlikely to be comprehensible to a jury. I say that those cases are rare; it is indeed possible that they exist.

We believe that the decision to try a case with a judge alone should be appealable. Although there seems to have been some antipathy to appeals from magistrates’ allocation decisions, this is a decision of a different quality altogether. It is a decision on whether a trial of huge complexity and length should be tried by a jury or a judge alone. That ought to be reviewable. It is of the essence of our system that wrong decisions in serious cases, on serious questions of substance, should be reversible on appeal. Whatever the criteria for “judge alone” trials—if they happen—are ultimately to be, these are serious decisions of substance. A wrong decision should not, in justice, be allowed to stand. I support the noble Viscount on the basis that decisions should be appealable. That is my Amendment 21.

Furthermore, if a defendant is convicted, and then if, following that conviction, when the judgment is available—let us remember that there is bound to be a written judgment in “judge alone” trials—it is apparent that the decision on the trial being by a judge alone is found to be wrong, then that decision on the mode of trial should be appealable at that stage. That is the aim of my Amendment 25. Those amendments are sensible and certainly necessary in the interests of justice.

[Baroness Chakrabarti (Lab)]

I am interested in probing the noble Lord’s remarks about judge points and jury points on questions of dishonesty. I wonder whether he shares my concern, if there were to be a perception that white-collar crime is for the judge alone while other people’s crimes of dishonesty are not, about trust and confidence in the system and equality before the law?

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

Yes, I share that concern. Actually, it goes further. I do not believe that issues of dishonesty divide neatly into white-collar issues and other issues. Just as juries are told that dishonesty is a matter for them, that they know the ordinary meaning of dishonesty and they recognise it when they see it, I believe that is true of juries at any level. Ultimately, when questions of dishonesty are tried in relation to white-collar crimes that may be complex, ordinary citizens, and a jury of ordinary citizens, can nevertheless tell whether that individual defendant is being dishonest just as well as a judge can. That is certainly so when the wisdom of 12 is combined.

[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.

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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.

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Moved by

[Lord Marks of Henley-on-Thames]

12: Clause 3, page 5, line 32, at end insert—
“(2A) The court may make an order under this section only on the application of all of the defendants, and may not make such an order of its own motion or on the application of the prosecution.”Member’s explanatory statement
This amendment would provide that an order for trial without a jury could be made only on the application of all of the defendants, and not of the court’s own motion or on the prosecution’s application.

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

My Lords, this group is primarily concerned with one central proposition which was raised at Second Reading, not really opposed and notably supported by the noble Lord, Lord Carlile of Berriew—that it should be open to a defendant to opt for a “judge alone” trial in the Crown Court where the trial would otherwise be a trial by jury.

Amendments 12 and 13 are alternatives. Amendment 12 would prevent an order for a “judge alone” trial being made on the application of the prosecution or by the court of its own motion. We all spoke at length on that in the previous group. Amendment 13 is different: it would permit a defendant to apply for a “judge alone” trial in a case which comes within Clause 3, even if otherwise the trial might have been tried by a jury.

There may be cases—we can all think of some—where a defendant might think that a trial by judge alone might be more objective than a jury trial, notably where there has been extensive pre-trial publicity and the defendant might feel prejudiced by its effects. Amendment 32 in the name of the noble Lord, Lord Carlile, mentions other factors that might affect the interests of justice. Exceptional complexity is one, although in a sense that is tautologous because within Clause 3 exceptional complexity ought to be a given. Another factor is the risk of jury intimidation. National security considerations may appear far-fetched but, in view of some of the things going on at the moment in the national security field, they may be important. In such a case it is argued, and I think not seriously gainsaid, that it would be illogical to deny the defendant the right to seek a trial by judge alone even where the case would otherwise come under Clause 3. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will speak briefly to the amendment in my name, supported by the noble and learned Lords, Lord Phillips of Worth Matravers, Lord Burnett of Maldon and Lord Bellamy. Ours is a much simpler amendment: it seeks to enable a defendant, where the conditions are met, to apply for trial by judge alone. If the judge is satisfied that it is in the interests of justice, the defendant should be accorded that right.

There are parts of the Commonwealth, in particular Canada, where defendants like trial by judge alone. If a defendant wants a trial by judge alone, why should he not be entitled to it, if the judge thinks that it is in the interests of justice? The protection of a jury trial is for the defendant’s protection, by and large; the public interest, if the judge were to give accord to trial by judge alone, would be satisfied by detailed reasons being given. There may be many reasons why a person would like a trial by judge alone.

It seems to us that this amendment should at least be considered, if a defendant wants it and if it is in the interests of justice. The reason for the latter restriction is to counter the point made by the Government that it is for the court to decide the mode of trial. If the court is entitled to decide it by reference to the interests of justice, then it is the court’s decision.

There is a second reason for that. It would be possible, as the amendment from the noble Lord, Lord Carlile, sets out, to specify a number of circumstances. Generally, in my experience, if we are embarking down a route such as this, it is better not to lay down tramlines or even fairly tight guidelines but to allow the law to be developed by the courts. However, there are cases where someone may properly decide that this is the case they would like heard by a judge and it is not a case where it would not be in the interests of justice for that request to be acceded to. I find it difficult to see why, if someone wants a trial by judge alone and the judge, in accordance with principles that have developed, decides that that is right, he should not be entitled to that if it is in the interests of justice.

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[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.

Amendment 12 withdrawn.

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Moved by

[Lord Marks of Henley-on-Thames]

13A: Clause 3, page 5, line 34, leave out “or” and insert “and”
Member’s explanatory statement
This amendment, and others in the name of Lord Marks, would ensure that only trials that would be both of sufficient complexity and length, with an agreed estimated length of at least 5 months, would qualify for trial without a jury.

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

My Lords, in this group I have Amendments 13A, 13B and 15A. I have spoken on the principles associated with complexity and length in previous groups, and indeed my amendments echo my Amendment 17 in group 4, on which I have already spoken. The amendments would require, before a “judge alone” trial were ordered, that the case would genuinely be of sufficient complexity to warrant a trial by judge alone and would have a potential length of at least five months.

A great deal has been said about complexity, but I would just like to make some points about length. I do not accept that the likely length of a trial is itself any reason for abandoning a jury trial. First, it is the universal practice of judges to ask potential jurors when the jury is empanelled whether a very long trial would cause them serious difficulties. In the event of an affirmative answer from particular jurors, they are generally not required to serve for that trial. Indeed, I have never heard of a judge forcing a juror to attend who has serious difficulties on the ground of length and not accepting that reasoning.

Secondly, I suggest that jury expenses could be increased to permit jurors after a set number of weeks to serve on longer trials without significant financial disadvantage. If there were significant financial disadvantage, that would bring into play the judge forgiving the juror the right to attend that I mentioned earlier. Thirdly, I do not accept that length of trial, of itself, makes a trial unworkable in the absence of other factors. The very fact that we have had so many very long trials over recent years successfully tried and concluded with juries bears that out.

Finally, the length of trials can be, and I think often should be, better controlled by ensuring that charging decisions are made with a view to ensuring that unnecessary charges are not brought or pursued to trial, particularly when they would not lead to longer sentences, and evidence and the presentation of evidence are planned, contained and carefully organised with a view to keeping the length of trial under control. It is a relatively new idea that length of trial, of itself, should be a reason for dispensing with a jury and, frankly, without a great deal more evidence, I would reject that notion.

In view of our position generally on “judge alone” trials being ordered and, in particular, in view of what is going to be debated in forthcoming groups about the type of offences being added to, at this stage we will certainly be supporting the stand part propositions from the noble and learned Lord, Lord Keen, the noble Lord, Lord Wolfson, and the noble Baroness, Lady Jones, in this group. I beg to move.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I should advise the Committee that, if this amendment is agreed, I cannot call Amendment 14 by reason of pre-emption.

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With that explanation, I hope that the noble Lord, Lord Marks, will agree to withdraw his amendment.

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

My Lords, I am very grateful for that comprehensive reply. I do not suggest that my amendments are the last word on this, nor do I accept that the absolutist position taken by the Minister is the last word. It may be, therefore, that, between now and Report, we can come to an accommodation. In that hope, I beg leave to withdraw my amendment.

Amendment 13A withdrawn.

Courts and Tribunals Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Tuesday 10th November 2026 Lords Chamber

Once more, I hope my friend the noble Viscount will forgive me—I hope to spare his blushes—but his father gave an important lecture, not in 2026 but in 1976, contrasting an elective dictatorship with the constitutional democracy that we all aspire to. Henry VIII powers over matters of such importance as this are a manifestation of an elective dictatorship, not the democracy to which we all aspire.

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

My Lords, I added my name to Amendment 29, moved by the noble and learned Lord, Lord Keen of Elie, and I am delighted to endorse everything that he and the noble Baroness, Lady Chakrabarti, have said about it. I am delighted to join the noble Baroness in her campaign against Henry VIII. I am bound to point out that he had six wives, so there is no reason why he should not have as many critics and more.

The amendment would leave out part 2 of new Schedule 3ZA and therefore remove the power to add or remove offences to the list by order of the Secretary of State. That amounts to a pernicious Henry VIII power to add any offence to the “judge alone” list. No one has read it out, but I remind the Committee that the “judge alone” list in the Bill as drafted is just financial crime: conspiracy to defraud and offences under the Fraud Act; tax and VAT evasion; false accounting; insider dealing; money laundering; terrorist funding; bribery; historic fraud offences under the Theft Acts, including deception and going equipped to cheat; and ancillary offences. Those are financial crime, and that is what we had all envisaged the judge-only provisions would be about. However, it is not what is now proposed when there is a power—fettered only by the need for a preparatory hearing, effectively—to add further offences of whatever sort, provided that they are not the offences, excluded by the primary legislation, of homicide and serious sexual offences.

The Delegated Powers Committee, on which I once served—I agree with the noble Baroness about the worth and value of the work that it does, if often unlauded—described those provisions in its report on the Bill as being concerned with

“offences of serious economic crime such as fraud, bribery and terrorist funding”.

The committee summed up the principle in the 2021-22 report Democracy Denied?, which the noble Baroness cited:

“The appropriate threshold between primary and secondary legislation should be founded on the overarching principle that the principal aspects of policy should be on the face of a bill and only its detailed implementation left to delegated legislation”.


That neatly and elegantly sums up one of the cardinal rules on which parliamentary democracy is based: that the Government are accountable to Parliament and Ministers introduce a programme of legislation, but it is for Parliament to pass or reject it as it determines.

Vesting a Minister with the power to enable trials without a jury of any offence triable on indictment other than excluded offences, provided only that a relevant preparatory hearing has been ordered, would be a radical departure from that principle of parliamentary sovereignty. We will oppose it and we will vote against it on Report. While we are prepared to give the Government time to consider their position between now and Report, Ministers should be in no doubt as to the seriousness with which we view this threatened abuse of constitutional principle.

On the merits of adding further offences to Clause 3, we see little reason, as I have explained, for judge-only trials as a matter of principle, unless applied for by a defendant. We see no reason whatever for them in other cases in the Crown Court, unless sought by the defendant, and will continue to oppose these provisions.

[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.

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Moved by

[Lord Marks of Henley-on-Thames]

33: Clause 5, page 10, line 26, leave out subsection (1)
Member's explanatory statement
This amendment would remove the provision allowing the Secretary of State to change, by regulations, the general limit on custodial sentences in a magistrates’ court for either-way offences to 6, 12, 18 or 24 months.

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

My Lords, I have Amendment 33 in this final group of the day. This amendment would remove the power of the Secretary of State to amend the Sentencing Code as proposed in Clause 5(1) of the Bill to substitute periods of 6, 12, 18 or 24 months as the general limit for magistrates’ court sentences for “either way” offences, currently with 12-month limits. Amendment 35, from the noble Baroness, Lady Jones of Moulsecoomb, and the clause stand part notice from the noble and learned Lord, Lord Keen, the noble Lord, Lord Wolfson, and the noble Baroness, Lady Jones, would have the same effect.

There are two broad headings for our objections to this proposal. The first is that it would hand to the Government another unacceptable Henry VIII power, giving the Secretary of State the power dramatically to increase by secondary legislation the sentencing powers of the magistrates’ courts. The use of Henry VIII powers for such a purpose is particularly egregious, because sentence lengths are concerned with the liberty of the subject and so are pre-eminently matters of policy for Parliament and not matters of implementation by Ministers.

The Delegated Powers Committee expressed itself trenchantly on this issue, as it did on the issue in group 7, saying:

“‘Henry VIII powers are controversial, and for good reason. Every such power, and its scope, must always be fully justified’ … we consider that the Government has failed to justify the … power in clause 5(1) and we recommend that it is removed from the Bill”.


The Government seek to support the new power by reference to an alleged requirement that

“adjustments to magistrates’ sentencing limits can be made swiftly where operational pressures or changes in case volumes necessitate a rebalancing of work between the magistrates’ courts and the Crown Court”.

The Government referred then to responding

“flexibly to fluctuations in demand, ensuring that cases are allocated to the appropriate court without the delay that would result from requiring amendment via primary legislation”.

I have no wish to be flippant because this is a serious issue, but that attempt by the Government at a justification sounds more appropriate to a supermarket chain resolving its grocery distribution issues than to the impartial administration of justice where sentence lengths for individual offenders are at stake.

The nature of the Government’s attempted justification of these changes demonstrates just how important it is that Parliament should retain control of these significant policy questions and that they should not be subordinated to ephemeral, practical, operational difficulties. The extent of government overreach on this issue is accentuated by the Bill providing for the negative resolution procedure only. At least Amendment 34 from the noble Baroness, Lady Goudie, would right that obvious wrong.

The second area of objection to the proposal to enable sentences to be increased by Ministers by regulations is both principled and practical. The combined effect of the proposals in this Bill would be to draw criminal cases into the magistrates’ court and away from the Crown Court. That would have the effect, as we have discussed, of depriving many defendants of a right to a jury trial. Indeed, that is the Government’s stated aim, expressed as directed towards reducing the appalling Crown Court backlog. However, as I said earlier today and as has been said by others, the evidence that this would actually be achieved is thin. The backlogs in the Crown Court are stabilising as measures have been introduced to address them. As I said at Second Reading, although we can argue about the exact figures, the Criminal Bar Association’s figures show that, over the first six months of this year, the Crown Court backlog rose by less than 0.5%. In the magistrates’ court, on the other hand, the backlog in June, excluding single justice procedure cases, was up 16% in a year to about 169,000. We have heard a great deal today about the magistrates’ courts being as clogged up as they are and the difficulties that this Bill could present, because those figures are before any of the proposals in this Bill have taken effect.

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By way of conclusion, I say that we have been talking about two quite different things here. Regarding the sentencing powers, I hear what the noble and learned Lord, Lord Keen, says about returning to this on Report. However, the Government are committed to making the changes in these arrangements. Separately, we have been talking about the capacity in the magistrates’ courts system. This does occur in a later group, which we will come to next Monday, but I hope that I have answered some of the questions in that regard and on the sentencing powers. As I say, we will return to this, but the Government feel very strongly that these are the right arrangements.

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

My Lords, I do not share the despair of the noble Baroness, Lady Jones of Moulsecoomb, at everything that this Government do. They have done some good and brave things, not least in the area of criminal justice, many of which we have welcomed. However, they have shown themselves to be capable of serious misjudgments. The power to extend magistrates’ sentencing powers—doubling them—by regulation, by a Henry VIII power, subject to the negative procedure only and on minimal evidence, is a radical misstep.

I note the Minister’s reliance on government modelling as providing the necessary evidence. However, that modelling depends on a number of imponderables and unprovable predictions about the future. With only the negative resolution procedure available to air the issue, the problems with this provision remain unsolved. The Government are right that the position that I and the noble and learned Lord, Lord Keen, take means that primary legislation would be required to increase sentencing powers. We say that that is right. Parliamentary scrutiny in Committee is intended to enable the Government to step back before such missteps, as I characterise them, cause serious danger.

In the hope that the Government will withdraw from this misstep before its consequences may be felt, I beg leave to withdraw this amendment—but I too expect the matter to return.

Amendment 33 withdrawn.