Courts and Tribunals Bill

Debate between Viscount Hailsham and Lord Thomas of Cwmgiedd

Committee stage
Tuesday 10th November 2026 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, it is always a pleasure to follow the noble Baroness; we agree very often on matters of this kind, and I particularly agree with the two amendments that she has tabled and to which I have put my name. I will make two brief preliminary points before I come to the substance. First, I apologise that I was not able to participate at Second Reading. I am sorry about that, but I had long-standing commitments which would have been very difficult to break. Secondly, and quite differently, although I have practised at the Criminal Bar off and on for around 40 years, I have to admit that I have not been in a criminal court since 2010—although I still practise as a legal assessor to regulatory panels connected with healthcare professionals—so I do not have a professional or technical interest to declare.

At the heart of this matter, which I think my noble and learned friend Lord Keen will address at some length, is the stand part debate on Clause 1. I shall support my noble and learned friend if he moves a Division on Report, because my view is that it should not stand part. He will argue the reasons, which he set out very fully at Second Reading, and I will therefore summarise them only with the greatest of brevity.

The right to jury trial in “either way” offences enjoys widespread professional and public support. There is very little appetite for change. To change it therefore requires the most compelling of reasons, and I suggest that they do not exist. There is a backlog, but jury trials are not the principal, primary or, perhaps, only significant cause of it. As my noble and learned friend said at Second Reading, when he posed a number of questions, the backlog was caused by a number of factors which have now passed: Covid, for example, or, I regret very much to say, the industrial action among junior members of my profession, of which I deeply disapproved. But there were other considerations: the failure of Governments, who I supported, to provide adequate funding for judicial time and appropriate courts. Administrative action could be taken to remedy this backlog, but we are taking measures to remedy it to which the backlog is not related. In any event, it is not self-evidently sensible to displace a backlog in a Crown Court to one in a magistrates’ court. That seems to me rather surprising. So I am against Clause 1, but I have to recognise the possibility that this Government will seek to ram it through Parliament. Therefore, it is the Committee’s business to try to remedy the faults in Clause 1 or to correct its omissions.

I come first to Amendment 1, so clearly moved by the noble Baroness, Lady Chakrabarti. It cannot be right for a disparity to exist between a defendant with a long string of previous convictions, who is likely to get a lengthy sentence, and a defendant without convictions who is a person of good character. The former is likely to get a jury trial; the person of good character is likely to be denied it. That cannot be right. The noble Baroness has put down a very clear amendment to address precisely that point, and I was pleased to support it.

Amendment 3, to which the noble Baroness also referred, concerns the right of appeal. I know the noble Baroness, Lady Hamwee, shares her views on this. I would like to think that, on Report, we could make common cause together and put it to a Division. However, if the noble Baroness, Lady Hamwee, will forgive me one point, her amendment on appeal is somewhat narrowly drawn. I would prefer to incorporate the concept of fairness and the principles of natural justice, but that is a matter for subsequent discussion.

I am a great supporter of Amendment 2 from the noble and learned Lords. It would be very sensible to introduce the concept of guidelines, because otherwise we are likely to see a judicial postcode lottery. We all know from our experience in politics that a postcode lottery will become deeply unpopular, so the concept of guidelines is a very good one, subject to this proviso: I do not read in the amendment, or in anything naturally associated with it, the suggestion of judicial input. I would like to see judicial input into the guidelines. I shall support all these amendments should they be pressed to a Division on Report.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will speak to Amendment 2, which stands in my name and those of the noble and learned Lords, Lord Phillips, Lord Burnett of Maldon and Lord Bellamy, who very much regrets his inability to be here today.

As its explanatory statement makes clear, this is a probing amendment. It is made in circumstances where the time has come for some further structural change to the cases that go to the Crown Court and those that go to the magistrates’ court. The backlog in the Crown Court has the effect of denying justice, particularly to victims. I do not believe there is any alternative to dealing with the backlog. When I have encountered it in the past, I have found that it gets worse if it is not dealt with, because it has a spiralling effect as people game the system. There is nothing new in making an adjustment, and it is a question of detail as to how this adjustment is best made. I am very grateful to the Minister for his engagement with us to discuss the various amendments put forward in our names.

The purpose of Amendment 2 is to probe two areas. The first is to work out the way of getting the greatest possible consistency across the country on which cases are retained in the magistrates’ courts and which go to the Crown Court. The second is an issue that has not much been debated so far: are the cases that are retained in the magistrates’ courts to be decided by three magistrates or by judge alone—that is, by a district judge or deputy district judges? Before I turn to that in a little more detail, it is important to explain the background. Because these reforms have been put forward without the very detailed and careful analysis that the noble and learned Lord, Lord Leveson, put to his recommendations, at present it is not possible to work out the best way to proceed.

I will briefly explain the present position. The position as to allocation is set out in Section 19 of the Magistrates’ Courts Act, which simply requires the court to decide whether it is more suitable for trial on indictment or summary trial on the allocations issued by the Sentencing Council. Those allocation guidelines are drafted against the current sentencing powers of the magistrates. In essence, they say that cases should be tried summarily unless the outcome would clearly be a sentence in excess of the court’s powers, after taking into account personal mitigation and potential reduction for guilty pleas. The guidelines go on to say that cases of unusual factual complexity should be tried in the Crown Court. Those are exceptions—the rest are to be tried in the magistrates’ court, if they are within its sentencing powers —and such exceptions are likely to be narrow and rare. So at the moment the guidelines are structured so that the potential sentence is determinative of the way the case should be tried. The question is: is that the appropriate way to continue?

The second issue is the distribution of work in the magistrates’ courts. The way in which work is distributed in the magistrates’ court is governed by the listing practice direction issued by the Lady Chief Justice last month. That direction followed what was, in essence, the product of work done in 2012 by a group chaired by Lord Justice Gross, with representatives of the magistrates present and the senior district judge in HMCTS. It sets out the presumptions for trial by district judges, including long cases. It also provides for a share of routine business and for the occasional sitting of mixed Benches.

The question that arises is: should we say that these are matters for the Sentencing Council and for the practice direction issued by the Lady Chief Justice, or should Parliament prepare guidelines and issue those through the Secretary of State or the Lord Chancellor? At the moment it is not possible to be more specific about the way in which the guidelines might operate. We do not know at present the basis of the figures that have been used to calculate the savings in time. Is it assumed that magistrates will operate the existing guidelines, primarily determined by the sentencing powers that they have? Secondly, the distribution of work between the magistrates and the district judges and deputy district judges is not clear, because although large numbers of magistrates are being recruited, there is a substantial recruitment of deputy district judges and district judges. Both those issues are important. We need to decide whether guidelines should be made.

In her Amendment 1, the noble Baroness, Lady Chakrabarti, supported by the noble Viscount, Lord Hailsham, has proposed that matters such as good character should be taken into account, but there may be other matters that need to be looked at. For example, one needs to bear in mind that, as the noble and learned Lord, Lord Leveson, recorded at paragraph 38 of chapter 5 of his report, there were concerns about how ethnic minorities would view changes of this kind. That would be a very difficult matter, if it was a matter to be taken into account, to be dealt with other than by Parliament.