Courts and Tribunals Bill (Eighth sitting)

Siân Berry Excerpts

Committee stage
Tuesday 21st April 2026 Public Bill Committees

[Siân Berry (Brighton Pavilion) (Green)]

The Minister has already said “particularly complex or lengthy”, and just then she said “complex and lengthy”. Having rejected an amendment that would have set a limit of five months, will she think again about defining both complex and lengthy more rigorously in the Bill? The explanatory notes say “complex and lengthy”, but we do not have a definition of complex or a length limit. I think we need to hear more about that from her.

[Sarah Sackman]

I thank the hon. Member for her point, which has been raised by others. Those terms are well understood in their ordinary meaning and can be applied in a clear and straightforward way by judges.

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[Jess Brown-Fuller]

Amendment 13, which was tabled in my name, provides that magistrates’ sentencing powers cannot be increased beyond 12 months, which would keep the Bill in line with Leveson’s suggestions. The Government have failed to take into account the impact that increasing magistrates’ sentencing powers will have. Magistrates’ backlogs are increasing, and magistrates courts are not set up to take on more complex cases.

The Government are also making some bold assumptions about the speed at which magistrates can clear these cases. They have their own backlog to face, which stands at 379,000 cases and increasing. That is a 17% increase on the previous year, which comes alongside a major cut to the number of magistrates over the past decade or so, from 28,000 to just over 14,000. Removing the power of defendants to elect, plus the changes in sentencing powers, will increase the workload of magistrates courts, and the system will struggle to absorb that. Magistrates will be required to deal with more complex cases despite the summary nature of their jurisdiction. Either they will be unable to handle those cases and will send them to the Crown court, or they will risk delivering poor-quality justice, which would let down victims and defendants alike.

The cohort affected by this change consists by definition of defendants expected to receive a prison sentence of between one and two years. The impact assessment shows that the Government assume that each of these trials in the magistrates courts will be completed within just four hours. The impact assessment also assumes that cases involving a guilty plea will take just 30 minutes. Either the impact assessment is incorrect or these cases will not receive the scrutiny they deserve.

Our other amendment, amendment 21, would make changing the general limit on custodial sentences for either-way offences in the magistrates court possible by affirmative resolution only. It is very similar to amendment 34, which the hon. Member for Bolton South and Walkden spoke to on behalf of her hon. Friend the Member for Sheffield Central. The amendment would ensure that any changes to magistrates’ sentencing powers—if amendment 13, to limit their powers, is not passed—is subject to the affirmative procedure. It would give greater parliamentary oversight, as all changes would have to pass through a Delegated Legislation Committee. Leaving that to the discretion of the Lord Chancellor is not a strong enough condition; it does not provide enough scrutiny or protection against rogue actors. The measure was also recommended by the Law Society of England and Wales. It would provide just that protection, and would ensure that Parliament would have and maintain its say in matters.

[Siân Berry]

I will speak as quickly as I can. I support the amendments tabled in this group by the Liberal Democrats, which would limit any increase in the sentencing powers of magistrates beyond 12 months; amendment 34, which was moved by the hon. Member for Bolton South and Walkden; and the Liberal Democrat and Conservative amendments that would ensure that, if that limit is not accepted, any further changes are made by the affirmative resolution procedure.

I am sure we will all remind the Minister that Sir Brian Leveson specifically made his reforms to jury trials contingent on not increasing the sentencing powers of magistrates. He stated that specifically in paragraph 71 of his report. He also stated:

“My strong recommendation is that the maximum should remain at 12 months.”

That followed, in paragraph 70, another important caveat that the Government seem to have overlooked:

“While removing the right to elect for certain offences may streamline the judicial process and alleviate the burden on the higher courts, it raises concerns about balancing the right of the defendant with the broader interests of justice.”

We have to admit that the Government are taking a risk with the moves they are making. The magnitude and volume of that risk increase with the number of extra cases that are pushed to the magistrates courts through other provisions in the Bill, while the consequences of that risk increase with the higher sentences made possible under clause 6. This is not a step we should take alongside those other steps. They increase the risks to justice.

In oral evidence, we heard from Claire Davies, the leader of the south eastern circuit, who said of magistrates courts:

“There are errors and mistakes made, but if the length of sentence is extended, it will potentially increase that risk.”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 51, Q99.]

We also heard from Emma Torr, from APPEAL, who described

“swift and speedy justice in the magistrates court. It is often rough and ready; we are talking about cases being tried by lay justices, some of whom may be experienced but some may not be, and we are also talking about less experienced judges. You often find in the lower court, the magistrates court, that advocates are more inexperienced and tend to be at the start of their career.”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 86-87, Q185.]

This point was also emphasised by Fiona Rutherford, the chief executive of JUSTICE, who said:

“There is a question mark about the accuracy of the way in which magistrates are making decisions.”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 82, Q174.]

These are the risks we are talking about compared with having a judge and jury.

Risks also come from the surrounding bureaucratic situation, which could lead to more defendants being unrepresented. When the shift is made, we will be leaving them without legal aid, because of the changes in the income requirements. We heard from Fiona Rutherford of JUSTICE that without this representation there could be additional risks to victims.

The Minister needs to admit that this part of the Bill goes too far. On top of the other things she is doing, she is adding more consequence, not just more volume, to the risk equation. That is a poor step to take. Clause 6 should not stand part, and I support all the amendments.

[Dr Mullan]

I rise to speak to my amendment 53 and to amendment 13, tabled by the Liberal Democrat spokesperson, the hon. Member for Chichester.

Clause 6 includes a provision that seeks to expand the Secretary of State’s power to vary the maximum custodial sentence that may be imposed by magistrates courts for triable either-way offences. At present, the general limit for such sentences stands at 12 months, having been increased from six months in 2022. The Bill proposes that we allow that limit to be further increased, by way of regulations, to 18 or even 24 months. While the Government frame that as a necessary tool for operational flexibility, it represents a significant extension of the custodial powers of our magistrates courts.

The central question we must address is not merely whether the powers should be increased, but how such a decision should be scrutinised by Parliament. The Bill allows the changes to be made under the negative procedure. Through amendment 53, we propose that any future exercise of the power be subject instead to the affirmative procedure, requiring the explicit approval of both Houses of Parliament. As I have said, I also support amendment 13 from the Liberal Democrats, which says the powers should not be increased full stop.

Increasing the maximum custodial sentence a court can impose is not a minor or technical adjustment; it is a substantive change in the fundamental balance of our criminal justice system. When we discuss the power to deprive a citizen of their liberty for up to two years, instead of one, we are discussing one of the most serious powers the state can wield. Magistrates courts are designed for summary trial, which is a process intended for the swift disposal of less serious, low-level cases. Allowing that framework to pass two-year sentences is a major shift. As laid out by the hon. Member for Brighton Pavilion, the evidence we heard explained that such an expansion will mean that more serious and complex cases will be dealt with by lay justices.

For a change of this magnitude, the negative procedure provides an inappropriately low level of scrutiny. To understand why the affirmative procedure is necessary, we must look at the mechanics of parliamentary oversight. Under the negative procedure, a statutory instrument is usually made by a Minister and becomes law immediately upon being laid before Parliament. It remains law unless either House successfully votes to annul it, through a process known as praying against an instrument, within a set 40-day period. In reality, the power to object is rarely used and even more rarely successful. I understand that the House of Commons has not successfully prayed against a negative instrument since 1979, and the House of Lords has not rejected one since 2000. The procedure essentially relies on the absence of objection to grant legitimacy to a change in law. In an area as fundamental as the power to imprison citizens for extended periods, Parliament should not rely on a lack of noise to signify consent. It must require explicit, recorded approval.

The affirmative procedure provides a much more robust safeguard. Under that route, a statutory instrument is laid in draft and cannot become law until it has been actively debated and approved by both the Commons and the Lords. That ensures that the Government must stand at the Dispatch Box, in the same way the Minister has been doing all week, in a Committee Room just like this, and openly justify why the increase in sentencing powers is necessary and proportionate.

That level of scrutiny is essential, because the Government’s current justifications are contested. The Government argue that the powers will allow more cases to be retained in magistrates courts, thereby reducing pressure on the Crown court backlog. However, independent bodies such as the Institute for Government have noted that assumptions about time savings in magistrates courts are highly uncertain. There are serious concerns that magistrates courts, which already face their own peak backlog of over 370,000 cases, simply do not have the capacity to absorb that work. Although the provision in clause 6 will not lead to an immediate increase in sentencing length, it is reasonable to assume that the Government would not have introduced it if they did not have some intention, at some future point, to increase the sentencing powers available to magistrates and therefore to retain more cases in the magistrates courts.

We must also consider the differential quality in justice administered under the expanded powers. As we have heard, critics, including the Criminal Bar Association, warn that extending summary justice to cases carrying two-year sentences is a recipe for—[Interruption.]

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[Jess Brown-Fuller]

I beg to move amendment 22, in clause 6, page 17, line 11, at end insert—

“(9) After section 15 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, insert—

‘15A Entitlement to Crown Court funding levels in certain proceedings in the Magistrates’ Court

(1) This section applies to criminal proceedings in a magistrates’ court where—

(a) an individual is charged with an either-way offence; and

(b) the court, having regard to the sentencing guidelines, considers it likely that a sentence of imprisonment exceeding 12 months will be imposed upon conviction.

(2) Where this section applies, any relevant representation order shall provide for remuneration at the same rates and under the same conditions as would apply if the proceedings were determined in the Crown Court.’”

This amendment links legal aid funding to the potential severity of the sentence rather than the venue of the trial. It ensures that defendants facing more than 12 months' imprisonment receive Crown Court level funding, regardless of which court the case is heard in.

The amendment would link legal aid funding to the potential severity of the sentence rather than the venue of the trial. It would ensure that defendants facing more than 12 months’ imprisonment received Crown court-level legal aid funding, regardless of which court the case was heard in.

The context of this is that the Bill’s equality statement acknowledges that

“if more cases are dealt with in the magistrates’ courts, it is likely that an increased proportion of these defendants may be ineligible for legal aid when they would otherwise have been eligible if their case had been heard at the Crown Court.”

That is because the eligibility threshold for receiving representation from a publicly funded lawyer in the magistrates court is an annual income of below £22,325—significantly lower than the Crown court threshold of £37,500. As a result, individuals in full-time minimum wage employment may not qualify for legal aid in the magistrates court.

Without that being addressed, it is clear that we will face an increase in the number of defendants attending court without legal representation, which undermines fairness for all those involved. Complainants, victims and witnesses may be cross-examined by the alleged perpetrator of the crime; it could slow proceedings down; it risks unfairness to the accused; and it means that the outcome of the cases will depend on whether the defendant can afford expensive lawyers, not on the true justice of the case. That concern is compounded by the fact that clause 6 provides magistrates with greater sentencing powers, meaning that defendants will be facing more serious cases. It will also prolong hearings, which will reduce the savings the Government claim they will make by shifting cases into the magistrates court.

Our amendment would ensure that, if the Government’s plans are implemented, which we oppose, legal aid would be linked to the sentence length, ensuring that those who face longer sentences in the magistrates court received the funding they would expect in the Crown court. There is a lower threshold for legal aid in the magistrates court because it is assumed that cases will be shorter and simpler. That will no longer be the case, with more serious cases taking place that could take days to complete. Our amendment would avoid concerns about two-tier justice and an increase in the number of defendants appearing in court without legal representation.

[Siân Berry]

It is very good to see you in the Chair this evening, Ms Jardine; thank you for looking after us. I will speak very briefly in support of the amendment, to which I have added my name. I have spoken already about the many risks piling up with the Bill, and this amendment is one essential mitigation for some of those risks. If the Government press ahead, they cannot ignore it.

[Yasmin Qureshi]

I rise to support the comments made by the Liberal Democrat spokesperson, the hon. Member for Chichester, about the importance of legal aid. There has already been a real reduction in the number of cases in which legal aid is given. Many defendants turn up at the magistrates court without any legal representation because of the constraints on legal aid. Bearing in mind that such defendants could now, if the Bill goes through, be facing up to 24 months imprisonment, it is important that legal aid provision is given to people facing custodial sentences. Means should not be the only element; an important thing to consider is whether somebody has a real chance of going into custody.

We have found historically—this may be anecdotal evidence—that defendants not getting legal representation at an early stage results in more delays. They often plead guilty right at the last stage, when the matter is set for trial. By then, six or eight months have passed, and they might have been able to save some money; or it has got into their head that they have to have this trial, so they try to raise some money. That causes delays. If people are guided, right at the beginning, as to what the evidence and the likely sentence are, they are more likely to plead guilty at an earlier stage.

The previous Government made significant cuts to legal aid. One of the arguments I remember raising then—this was more than 10 years ago, during the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012—was that restricting legal aid would mean lots of unrepresented people turning up at court, and that that would delay the system. It is also fundamentally unfair. Someone facing a criminal charge should be able to access legal aid. I ask the Government to think about that, and perhaps extend legal aid and make it more generous.