Grand Committee
Terrorism Prevention and Investigation Measures Act 2011 (Continuation) Order 2026
(1 day, 12 hours ago)
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Lord Hanson of Flint
That the Grand Committee do consider the Terrorism Prevention and Investigation Measures Act 2011 (Continuation) Order 2026.
Relevant document: 13th Report from the Secondary Legislation Scrutiny Committee
The Minister of State, Home Office (Lord Hanson of Flint) (Lab)
My Lords, this Order was laid before the House on 14 September 2026 and provides for the continuation of the Secretary of State’s powers under the Terrorism Prevention and Investigation Measures Act 2011, also known as the TPIM powers. The continuation is for a further five years.
I think all noble Lords accept that it is the first duty of government to protect the public, and central to that mission is to counter the threat we face from terrorism—a threat which, sadly, is enduring and evolving. In response, there is a range of tools, including the powers conferred on the Secretary of State by the Terrorism Prevention and Investigation Measures Act 2011, which I well recall, having dealt with it at the time as shadow Minister for these issues.
The measures ensure that, where prosecution or deportation is not possible, the Secretary of State can impose specified restrictions and requirements on an individual involved in terrorism-related activity, to protect the public from a risk of terrorism. Section 21 of the Act states that the Secretary of State’s TPIM powers will expire at the end of five years from the date the Act was passed. The orders were renewed twice, in 2016 and 2021, and these powers are due to expire at the end of 13 December 2026. As TPIMs remain an important part of the UK’s counter-terrorism toolkit, we seek to renew them today. This position is supported by the Independent Reviewer of Terrorism Legislation, the Investigatory Powers Commissioner and the director-general of the Security Service.
As noble Lords will know, the Secretary of State can impose a TPIM notice on an individual if the conditions set out in Section 3 of the Act are assessed by the Secretary of State to have been met. These conditions include that the Secretary of State reasonably believes that the individual is, or has been, involved in terrorism-related activity, and reasonably considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to impose such measures on the individual. In addition, the Secretary of State has powers to extend and vary a TPIM notice that is in force, and to revive a TPIM notice that has been revoked.
It may help noble Lords to know that, since the introduction of the Act in 2011, 33 TPIMs have been imposed. As of the last published set of figures, from June to August 2026, there are four TPIMs currently in force.
These are undoubtedly restrictive measures, which is why it is right that they are used sparingly and only in exceptional cases involving individuals assessed to present the highest levels of terrorism-related risk, where prosecution, deportation or other disruptive measures would be insufficient to protect the public.
There are, however, stringent safeguards. The Secretary of State must be satisfied that all conditions are met and apply to the court for permission to impose the TPIM notice, except in cases of urgency. A TPIM notice is subject to a review hearing at which the court reviews the Secretary of State’s decisions and the conditions were and continue to be met. The Act also provides a right of appeal in relation to specified decisions taken after its imposition.
Having consulted as required by the Act, the Home Secretary has decided to make this statutory instrument to provide for the continuation of TPIM powers for a further five years, the maximum period allowable in the legislation. We take this step because, sadly, we still face significant terrorist threats, and it is necessary to continue upholding the first duty of government: securing the nation and keeping our citizens safe.
The House of Commons has considered this order, and I hope that noble Lords will also support it today. I beg to move.
Lord Cameron of Lochiel (Con)
My Lords, the Official Opposition support this order. The Terrorism Prevention and Investigation Measures Act 2011 gives the Home Secretary powers that are needed in the small number of cases where the threat is real, but prosecution is not possible. Without this order, those powers would lapse on 13 December this year. Continuing them until December 2031 is the responsible course of action and we will certainly not stand in the way of this.
However, I have a few questions for the Minister. First, he stated that four TPIM notices are currently in force. How has that figure changed since the last renewal of the powers in 2021? I appreciate he may not have those figures to hand. More broadly, is the Minister satisfied that the powers are being used in proportion to the threat rather than falling into disuse?
Secondly, what is the Government’s assessment of compliance and breaches? For instance, how often are TPIM subjects found to have absconded or breached their conditions? Does he believe that the police and security services are properly resourced to monitor them?
With those questions, I reiterate the support of the Official Opposition for this order.
Lord Hanson of Flint (Lab)
I am grateful to the noble Lord, Lord Cameron of Lochiel, for his broad support for TPIMs. They were introduced when the noble Baroness, Lady May, was Home Secretary; I shadowed her at that time, and we had some concerns, some of which were around the issues the noble Lord has mentioned. Absconds and breaches are important issues.
I can give the noble Lord some figures. Since 2017, 16 TPM subjects have been prosecuted, with breaching measures imposed on them, and 12 pleaded guilty. To date, three have been found guilty by a jury. Judges have imposed custodial sentences on individuals who have breached the terrorism prevention and investigation measures, which I hope demonstrates to the noble Lord and the Committee the seriousness with which courts take these breaches.
On conclusion of any custodial sentence, the Home Secretary has the power to revive the existing TPIM if it provides a necessary and proportionate response to any threat that the individual may still pose. It is important that I put on record that the breach of a terrorism prevention order is a criminal offence. Every suspected breach is treated seriously and investigated, and we will always work with the police and the Crown Prosecution Service to support prosecutions accordingly.
I mentioned in my opening remarks that we currently have four individuals on TPIMs. I hope the noble Lord will be reassured that we provide a quarterly update on the TPIMs figures, and we have had 33 since their instigation. Off the top of my head, I do not have the quarterly figures for before the latest quarter, but there are four existing TPIMs. We will give an update every quarter on the numbers to date.
The Secretary of State takes these powers very seriously. The number one priority is to ensure that a TPIM is proportionate. When the Secretary of State—the Home Secretary in this case—signs off that TPIM, they must have a full submission and a full examination of it, and they will challenge it to ensure it is required and necessary. The appellant can appeal in court against that TPIM, and therefore a robust case is always made. A breach or indeed an abscond is a serious matter, and TPIMs provide significant levels of control over a range of movements and locations. As the noble Lord will know, on a number of occasions we remove people to new locations, so they are broken away from other influences.
I say to the noble Lord that we can rest assured. When I was in his position as a shadow Minister in the House of Commons, I asked about and was concerned about absconds and breaches. Now, as a Minister in government working alongside the Home Secretary, I am confident that we have a regime that is minimising those breaches. As I said to him in relation to the figures, if breaches or absconds occur, we take them extremely seriously, and these cases will potentially result in a custodial sentence. With those remarks, I hope I have assured the Committee that the order is worthy of general support.
Tobacco and Vapes Act 2026 (Display of Tobacco Products) (Consequential Amendments) Regulations 2026
(1 day, 12 hours ago)
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Baroness Merron
That the Grand Committee do consider the Tobacco and Vapes Act 2026 (Display of Tobacco Products) (Consequential Amendments) Regulations 2026.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I shall speak also to the draft Tobacco and Vapes Act 2026 (Age Verification Defence to Underage Sales) (England and Wales) Regulations 2026.
The Tobacco and Vapes Act, which received Royal Assent earlier this year, was landmark legislation that will deliver on the Government’s commitment to create a smoke-free generation and tackle youth vaping. As we know, smoking claims around 75,000 lives a year in the UK. That is why from 1 January 2027 it will be an offence to sell tobacco products, herbal smoking products or cigarette papers to anyone born on or after 1 January 2009, which will help to create the UK’s first smoke-free generation. The Act has also strengthened protections for children by making it an offence to sell vaping products or nicotine products to anyone under the age of 18, closing loopholes in the previous age of sale requirements. This reflects our health advice that, while vapes can be an effective aid for adult smokers to quit smoking, children and non-smokers should never vape or use nicotine products.
The two instruments before the Committee today will support the effective implementation of the new age of sale measures in the Act. I begin with the age-verification regulations. The Act provides powers to set out in regulations steps that retailers may take to verify that a customer has reached the legal age of sale, as a defence to the age of sale offences. This instrument sets out the steps that would satisfy this defence in England and Wales. It aims to give retailers confidence about how they can verify the age of customers attempting to buy these products. It also provides for two alternative methods of age verification which will both satisfy the defence.
First, a person charged with an age of sale offence may rely on the defence where they can prove that they were shown a physical identity document bearing the customer’s photograph, a date of birth and a holographic mark or ultraviolet feature. These criteria capture common forms of ID such as passports, driving licences and PASS cards. Secondly, a retailer may rely on a digital proof of age. This must be verified and delivered through a digital verification service, known as DVS, which has been independently assessed against the UK DVS trust framework and is listed on the statutory DVS register.
The provisions on digital proof of age follow the passage of the Data (Use and Access) Act 2025, which placed the trust framework and the DVS register on a statutory footing. They also follow the coming into force of the Licensing Act 2003 (Mandatory Licensing Conditions) (Amendment) Order 2026, which enables the use of these services as part of alcohol sales. I shall be clear that there is no requirement for individuals to use digital proof of age, nor are businesses required to accept it. It simply provides an additional, voluntary option alongside physical documents.
In developing the criteria for physical and digital proof of age, we have considered three key aims. First, we have sought to mirror the criteria for physical and digital proofs of age that can be used for alcohol sales—something we rightly discussed in Committee. This aims to capture the many retailers who sell alcohol as well as tobacco, vaping and nicotine products, who will need to remember only one set of criteria. Secondly, the criteria ensure that a range of commonly used forms of ID can be accepted. Thirdly, we have sought to future-proof the regulations by ensuring that digital proof of age can be used alongside traditional physical documents. In other words, we are seeking to make this workable.
Neither the Act nor these regulations create a requirement for retailers to ask every customer for proof of age before every sale. The steps set out in this instrument are also not the only means of establishing a defence. The Act provides an alternative defence where a retailer can prove that they took “all reasonable steps” to avoid committing the offence. This is very much a re-enactment of the defence in previous tobacco and vapes legislation of having taken all reasonable precautions and exercised all due diligence. These regulations set out an additional, more prescriptive route to establishing a defence. A retailer who follows the steps in these regulations can have confidence that they would be able to demonstrate a statutory defence if they were ever subsequently challenged over a sale—another matter that arose, correctly, during Committee.
The next statutory instrument I will refer to relates to the display of tobacco products in retail premises. Under the current rules, introduced by the Tobacco Advertising and Promotion Act 2002 and related regulations, retailers in England, Wales and Northern Ireland are prohibited from displaying tobacco products. The 2002 Act includes an exemption that allows retailers to display tobacco products to a customer aged 18 or over, on their request, and a linked defence where a retailer mistakenly displays products to someone whom they reasonably consider to be 18 or over. This statutory instrument updates those provisions so that tobacco products can be displayed, on request, only to people born before 1 January 2009, aligning display restrictions with the new age of sale that comes into force on 1 January.
Without these amendments, under the current display legislation, individuals aged 18 and over could still be shown tobacco products, even if the products could not legally be sold to them. This would undoubtedly create an inconsistent and confusing position for retailers and could increase the risk of accidental underage sales. By aligning the age at which customers can be shown tobacco products with the new age of sale, we are aiming to help businesses comply with the law and to support effective enforcement.
These changes also aim to ensure the continued effectiveness of restrictions on tobacco display. We have decades of evidence to show that reducing the visibility and accessibility of tobacco products helps to reduce their appeal, particularly among young people. Restrictions on display also contribute to a more supportive environment for adults who are trying to quit smoking, by reducing exposure to tobacco products in everyday settings.
These regulations mark what I believe to be an important milestone in the implementation of the Tobacco and Vapes Act. They are a step towards creating a healthier future for today’s children and for generations to come, and I commend them to the Committee.
Lord Young of Cookham (Con)
My Lords, I apologise for missing the first 90 seconds of the Minister’s speech, which was the time it took me to sprint from my room to the committee corridor. I am grateful to the Minister for her lengthy explanation— it has enabled me to get my breath back. As she explained, these instruments follow from the Tobacco and Vapes Act, which is an Act I supported as a long-standing member of the APPG on Smoking and Health, and which actually carried forward a policy started by the previous Conservative Government. As the Minister has said, the first SI is relatively simple. It ensures that tobacco products, which cannot be displayed in shops, are not shown to anyone who is not old enough to be sold them—that is, anyone born after 1 January 2007.
The Government recently closed a consultation on extending point of sale restrictions to nicotine products. This is actually overdue. The display of addictive vapes in plain view of children has helped to increase youth usage, and it has undermined their essential role as a primary smoking cessation aid. I was interested to see the coverage in the BMJ regarding large amounts of industry lobbying around the consultation. Of course, this is nothing new, as those of us who have worked on this issue for a long time know. This was then followed by another story about how AI bots flooded the initial consultation on the then Tobacco and Vapes Bill in 2023. Of the 118,756 responses received, 90,835—that is, 76%— were submitted by bots. The DHSC said the submissions were
“often duplicated many times and sent at high frequency from a small number of IP addresses”.
This bombardment appears to be the first documented instance of large-scale automated interference in a formal public health policy consultation. We know that the tobacco industry will often work with or through other organisations, third parties or proxies to fight regulation. For example, the C-Talk website is dedicated to independent retailers, convenience stores and high street businesses. Campaign materials on this site, relevant to the consultation exercise, appear to have been written by somebody who completed an internship at British American Tobacco. Paul Cheema, the co-founder of the site, has recently received awards and prizes sponsored by Imperial Tobacco and has also appeared in an advertisement for another tobacco company, JTI. That is a concerning relationship.
Consultations are not referendums; they are there to gather evidence, information and views. But where responses come from does matter. When it comes to tobacco, responses should be driven by public health, not commercial interests, in order to drive decision-making to protect our population from the harms done by these lethal products.
The second instrument outlines what defence is accepted for retailers when it comes to verifying age, making it clear that either physical or digital ID must be checked. While the mention of digital ID may set alarm bells ringing for some, given previous plans to mandate digital ID for workers in the UK, I actually think this is fair, ensuring that this is an option for consumers and mirrors what has already been introduced for alcohol. It makes sense that we make the identification process as seamless as possible.
These regulations are about ensuring we are ready ahead of 1 January. There will be many more to come, and we have recently seen many announcements relating to vape shops from other government departments, such as the need for planning and the removal of business rate relief. It is important that we do not encourage the sort of shops and behaviours that we are seeking to resolve, so I welcome those initiatives.
Finally, the Minister will recall the pressure, as the Bill went through, for a road map showing how smoking rates will be reduced, having some milestones and ensuring that vaping policy is a broader part of a tobacco control plan. The Government resisted this, but I would be keen to hear when the Minister winds up what type of evidence is being gathered to judge the success of the Act, alongside other government policies on tobacco and vaping.
Lord Rennard (LD)
My Lords, these two statutory instruments are essential stepping stones towards a historic milestone in public health. They will help to enable the smoke-free generation policy to come into legal effect on 1 January 2027. They are not about reopening the principle of the rising age of sale, which both Houses voted decisively in favour of. We now need to implement the policy as effectively as possible.
I was a strong supporter of previous legislation prohibiting retail stores from displaying tobacco products openly to the public. As the Minister said, tobacco products can be shown only once a customer’s age has been verified as being 18 or over. I agree with her that the instrument before us sensibly updates those rules to reflect the forthcoming changes to the age of sale. They will help to ensure that lethal products are never displayed to anyone who cannot legally be sold them.
The Government are also proposing point of sale restrictions for nicotine products such as vapes and nicotine pouches. For too long, we have seen brightly coloured nicotine products, designed to be attractive to young people, displayed at child height near shop counters. The indiscriminate promotion of these products must stop. I welcome the proposal to store nicotine products separately, so that the customers buying them are not inadvertently exposed to tobacco displays.
As we seek to promote switching from smoking tobacco to vapes instead, we need to recognise the problem of perception. Action on Smoking Health has shown that 54% of UK adults and 52% of smokers mistakenly believe that vaping is as harmful or more harmful than smoking tobacco. Most significantly, that figure rises to 61% among smokers who have never tried vaping. I was a very early supporter of legislation promoting vapes, or e-cigarettes as they were then called, as a means of quitting tobacco. But now, we have to balance very carefully how vapes are promoted. We want to clamp down on their appeal to young people and at the same time ensure that these restrictions on promoting vapes do not inadvertently worsen misconceptions among adult smokers.
We need smokers, most of whom want to quit, to understand that switching to vaping can really help them and that vaping products are less harmful. So, I would be grateful if the Minister could explain how nicotine product point of sale restrictions will be designed so that they do not entrench dangerous misconceptions about their relative harm compared to tobacco products. Can she also say whether there will be scope for improved public health messaging, such as Swap to Stop, on covered retail units?
The second instrument concerns the legal defences available to retailers when verifying a customer’s age. It provides clarity by accepting both physical and digital forms of identification. Responsible retailers, who know their regular customers, can continue to serve them without unnecessary friction.
Data from ASH shows that 41% of 11 to 17 year-old smokers and 47% of children who vape purchase the products directly from retail shops. Furthermore, it shows that 71% of retailers in England and Wales actively support mandatory age verification, with only 20% opposed to it. Tighter verification is urgently needed. Responsible retailers want to do the right thing. What detailed guidance will be published to explain what these defence changes mean in practice for shopkeepers operating Challenge 25 schemes?
As we approach 1 January, leadership and clear communication from central government will be decisive in making the policy work and helping us to move further towards the smoke-free generation that we are seeking. Retailers and local councils are doing their part. Perhaps the Minister can tell us more about the Government’s national public awareness campaign and when it will launch. If we combine clear regulations, evidence-led public health messaging and dedicated support for our front-line retailers, we can ensure that 1 January 2027 marks the true beginning of the end for the tobacco epidemic in this country.
Finally, I want to share the concerns of the noble Lord, Lord Young of Cookham, when it comes to the relationship between tobacco companies and C-Talk and the Protect Your Store campaign. The tobacco industry often uses proxies to circumvent restrictions that are in place to prevent it from influencing health policy. But those restrictions are there for a very good reason. Retailers should stand ready to implement this important, life-saving policy, and evidence shows that when consumers spend their money on things other than tobacco it is good for the UK economy. I look forward to the Minister’s response.
Lord Evans of Rainow (Con)
My Lords, I thank the Minister for introducing this SI and for turning up this morning. She is clearly under the weather; perhaps she should have a hot toddy and take a rest for the rest of the day, given that she will be in her place at the Dispatch Box tomorrow evening for Committee on the Health Bill.
Protecting young people from the harms of smoking and vaping is the principle underpinning both these measures, but it is essential that the regulations implementing these changes are practical and properly scrutinised. The first instrument I will address today concerns the display of tobacco products, aligning existing exemptions with the new generational ban. At first glance, this appears to be a straightforward change, but it raises wider questions about the cumulative burden being placed on retailers.
The Government’s own impact assessment estimates that the changes to vape displays could cost retailers £26 million. The Association of Convenience Stores has suggested that the costs of a full display ban could actually exceed £160 million for convenience stores alone. These figures demonstrate the substantial financial pressures facing businesses as a result of these reforms. Can the Minister therefore clarify what assessment has been made of the specific costs associated with implementing this instrument, particularly for small independent retailers? What assurances can she provide that businesses will receive sufficient time and guidance to adapt?
The second instrument sets out the steps that retailers must take to check a customer’s age when selling tobacco or vaping products so that they can demonstrate that they have followed the law if an underage sale takes place. These provisions follow on from the fact that the generational ban introduces a fundamentally different approach to age verification. Rather than simply establishing whether someone is over 18, retailers will need to determine whether customers were born before a particular date: namely, before 2009.
This creates additional complexity for shopkeepers and their employees, who will be expected to understand and enforce the law. The Government must ensure that those acting responsibly are not inadvertently exposed to prosecution because of unclear requirements. Can the Minister explain how the Government will ensure that retailers can reliably check whether a customer is legally entitled to buy tobacco, particularly as the age limit will change each year? What expectations are there for people to carry identification as they get older?
During the passage of the Tobacco and Vapes Act, concerns were raised about the extensive powers given to the Secretary of State. Concerns have been repeatedly raised about the breadth of the Government’s regulation-making powers and the importance of parliamentary scrutiny. It is therefore vital that these powers are exercised transparently, with clear evidence supporting the measures introduced. Can the Minister tell us how the Government expect trading standards officers to enforce these additional requirements without providing them the resources to do so?
As my noble friend Dr Caroline Johnson highlighted in the other place, these powers could allow the Government to extend smoke-free restrictions to a wide range of places with limited parliamentary oversight. While these SIs deal particularly with tobacco displays and age verification, the wider concern about scrutiny remains. Can the Minister reassure the Committee that future regulations will be subject to proper consultation and parliamentary scrutiny, and that the Government will clearly explain why further restrictions are necessary?
I hope the Minister will address these concerns and reassure the Committee that these regulations will be implemented fairly and scrutinised properly.
Baroness Merron (Lab)
My Lords, I am most grateful to all noble Lords who have contributed to this debate and grateful for the support for the measures that we are taking. I know that many noble Lords who have spoken today have long been active campaigners, and I am extremely grateful. In particular, the noble Lord, Lord Young, welcomed the various steps across government, which speaks to the fact that this is not just a matter for health; there are other actions that we can take. I am also glad that the noble Lord, Lord Rennard, welcomed the clarity that these regulations will provide. He referred to avoiding unnecessary friction. That was very much part of our discussions during the passage of the Bill, and it is one of the concerns of the noble Lord, Lord Evans, which we share.
In just seven weeks’ time, the smoke-free generation will become a reality in this country, and that is something to celebrate. The first young people born in 2009 will turn 18, the law will change and those young people will enjoy a life that is free from the harms of tobacco that have plagued successive generations before them. These two sets of regulations are important steps in making sure that retailers are ready—I take on board the concerns raised—that the law is consistent and that the new age of sale is implemented successfully from 1 January. That is what these regulations seek to do.
I turn to the points raised. The noble Lords, Lord Young and Lord Rennard, raised questions about the tobacco industry’s influence and input into consultations. I remind the Committee that our consultation on proposals to reduce the appeal of tobacco, vaping and nicotine products closed on 2 October. The consultation spoke to aligning the display of vaping products, nicotine products, cigarette papers and heated tobacco devices with display restrictions—in other words, removing them from display and moving them away from the eyes of children and young people. We are currently considering the responses.
Concerns were raised about interference. We have robust controls in place to prevent the manipulation of public consultations. These controls certainly worked effectively in our past consultation, where we set out the case to create a smoke-free generation. I assure noble Lords that we remain alert to the kind of interference raised by the noble Lord, Lord Young, in particular, and we will not be deterred from doing what is necessary to promote healthier living and to protect children and young people.
The noble Lord, Lord Young, asked about a road map. Of course, we very much share the ambition to further drive down smoking rates; we are far from complacent. I know how pleased the Chief Medical Officer was recently at the historic low in smoking rates, but we do not stop there; we will continue. Our immediate priority is delivering the Tobacco and Vapes Act and the comprehensive programme of secondary legislation that sits behind it. With the investment in stop smoking services and enforcement, these measures will form our programme for delivering a smoke-free UK.
It might be helpful if I remind the Committee that the Act includes a requirement for the Secretary of State to review the operation of the Act within four to seven years of Royal Assent and to lay a report before Parliament concluding the findings of this review. I assure noble Lords that we remain open to evaluating the impact of the Act and to being held to account on that. I remember the conversation about what the right length of time was. This is our feeling on the right length of time, so we can give the Act time to make an impact and be realistic with Parliament about what has been achieved.
Lord Rennard (LD)
Before the Minister sits down, can I ask her a little more about this promotional campaign beginning on Monday? What is the budget for this campaign? I am delighted to hear that it will appear on television, radio, social media and elsewhere, but these things cost, and I would like to know how much will be invested in this programme. Perhaps the Minister could let me know another time.
Baroness Merron (Lab)
I will be very pleased to write to the noble Lord on that point of detail.
Tobacco and Vapes Act 2026 (Age Verification Defence to Underage Sales) (England and Wales) Regulations 2026
(1 day, 12 hours ago)
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Baroness Merron
That the Grand Committee do consider the Tobacco and Vapes Act 2026 (Age Verification Defence to Underage Sales) (England and Wales) Regulations 2026.
Relevant document: 13th Report from the Secondary Legislation Scrutiny Committee
Financial Services and Markets Act 2000 (Cryptoassets) (Miscellaneous Amendments) Regulations 2026
(1 day, 12 hours ago)
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Lord Wilson of Sedgefield
That the Grand Committee do consider the Financial Services and Markets Act 2000 (Cryptoassets) (Miscellaneous Amendments) Regulations 2026.
Lord in Waiting/Government Whip (Lord Wilson of Sedgefield) (Lab)
My Lords, I will speak to the two statutory instruments. I think it is fair to say that financial services are a key driver of growth in the United Kingdom. Embracing innovation is essential if we are to maintain our position as a leading global financial centre, particularly in relation to tokenisation, digital assets and the technologies underpinning new forms of payments, trading and market infrastructure.
I turn first to the Financial Services and Markets Act 2000 (Cryptoassets) (Miscellaneous Amendments) Regulations 2026. As noble Lords will know, earlier this year the Government legislated to establish a financial services regulatory regime for crypto assets, including stablecoins. That framework gives firms the certainty they need to invest and innovate in the UK while ensuring appropriate protections for consumers and markets.
The instrument before the Committee today makes a number of targeted amendments to that regime. It does not replace the regime already approved by Parliament but ensures that it operates as intended, remains proportionate and supports a competitive UK market as this sector develops. In particular, it ensures that requirements designed for crypto asset trading do not apply disproportionately to the use of appropriately regulated UK-issued stablecoins for payments.
The Government consider that stablecoins issued in the UK, appropriately regulated to ensure that they are truly stable, could play a significant role in both retail and wholesale payments. The Government are currently consulting on wider reforms to payments regulation to accommodate tokenised payments, including stablecoins. Without these amendments, firms using UK-issued qualifying stablecoins in payment chains could be captured by crypto asset regulatory activities designed primarily for trade. It would therefore be disproportionate to require firms using UK-issued qualifying stablecoins in payment chains to secure permissions under the crypto asset regime now, only to require further permissions under the future payments framework.
This instrument therefore excludes UK-issued qualifying stablecoins from the crypto asset dealing and arranging activities. Lending and borrowing involving those stablecoins will remain regulated, given the different risks that those activities can present. It also excludes the temporary holding of those stablecoins in connection with a payment transaction from the crypto asset safeguarding activity. This is about ensuring the right regulation applies to the right activity, rather than removing stablecoin activity from regulation.
Alongside this principal change, other amendments clarify the regulatory perimeter for stablecoin issuance and backing asset arrangements. They also bring forward the commencement of provisions clarifying that qualifying stablecoin backing assets are not treated as collective investment schemes or alternative investment funds, and that neither qualifying stablecoins nor the assets backing them are electronic money. These changes are aimed at removing barriers to stablecoin adoption for different use cases ahead of the crypto asset regime coming fully into force in October 2027. Acting now provides clarity before firms need to comply with the new regime.
The instrument also introduces targeted exclusions for certain proprietary trading and market-making activities, technical service providers and certain central securities depository arrangements. Finally, it makes corresponding amendments to the financial promotions regime to ensure that the perimeter remains aligned with the crypto asset regime. Following extensive engagement with parliamentarians and industry, these amendments provide greater certainty and remove unintended barriers, while retaining appropriate protections for consumers and market integrity.
I turn to the draft Financial Services and Markets Act 2023 (Addition of Relevant Enactments) Regulations 2026. The Financial Services and Markets Act 2023 gave the Treasury powers to establish financial market infrastructure—FMI—sandboxes. These sandboxes allow new technologies to be tested in financial markets within a modified legislative framework where existing requirements might otherwise impede innovation. The powers were designed to be flexible. When Parliament legislated in 2023, it was not possible to know every provision of legislation that might need to be modified as technologies developed. Section 17 of the Act therefore allows further legislation to be added to the list of relevant enactments that can be modified using the sandbox powers.
Baroness Kramer (LD)
My Lords, I fully accept that these two instruments contain sensible changes to reflect the introduction in the case of stablecoin in one and, in the other, to promote innovation within the crypto sphere. I will not do a line-by-line analysis—the Minister has laid out much of that—but I have some concerns. I will address each SI in turn to reflect those areas of concern.
Using the same order as the Minister, I start with the Financial Services and Markets Act 2000 (Cryptoassets) (Miscellaneous Amendments) Regulations 2026. This SI exempts qualifying stablecoin from regulation related to most dealing and arranging activity. I recognise that, as the Minister pointed out, this does not apply to general lending or borrowing, but it removes regulation from institutional collateral and repurchase arrangements. I recognise that the word “institutional” is intended to show that consumers would be protected even though there is a relaxation of lending and borrowing rules around repos and collateral. But, to me, the very fact that we are making this distinction again between institutional and consumer in the way we regulate—or in whether there is any regulation at all—raises again the whole issue of the regulatory perimeter.
The mini-bond scandal of just a few years ago is a powerful example of how bad actors manipulate around the edges of the regulatory perimeter established by the FCA to exploit people who think they are protected by FCA regulations when they are not. It is not difficult to confuse people, because the FCA’s approach means that some activities of a firm are regulated, while others—carried out by exactly the same firm but merely with a different customer base, as it were—are not. Many investors can be fooled and exploited.
I would just like to hear the Minister’s comments, because I am concerned. The crypto industry has plenty of honest players but it is also a magnet for the criminal, the corrupt and the inept. I would like a lot more assurance that this SI is not setting up the next mini-bond scandal, particularly around the area of institutional repos and collateral, which could easily be reformed in such a way that consumers could be persuaded that they were indeed qualified and sophisticated enough to purchase them, and then we will be back into another Woodford and that sequence of scandals.
I am also mindful that, when those mini-bond scandals first broke, the FCA basically said, “Nothing to do with me, guv—they’re outside the perimeter”. I would like to have some assurance that the FCA is now recognising that that perimeter cannot be such a hard line; it has to have some flexibility when there is obvious abuse.
The second of the statutory instruments deals essentially with the sandbox. I certainly do not object to it but again I have questions. I recognise that I was somewhat involved in the early days of the sandbox approach, and it has played a very important role in supporting innovation by using practical experience to get regulation right. It was first conceived of and introduced by UK financial regulators after the financial crisis to develop an effective regulatory framework for the fintechs, which is how I got involved in the process. The model, indeed, has been both recognised and copied around the world.
This SI, however, significantly extends the scope of the sandbox. The primary weakness of the sandbox system is that the regulator picks and chooses who gets to go in. When it picks out one of several small rival companies looking at approximately the same kind of innovation, it hugely advantages that entity that is chosen to go into the sandbox. Rivals suddenly find that they may struggle to get investment. Then, when the regulations appear, they are very much structured around that particular sandbox experience and so are often very tailored to the specific company that was in the sandbox and in effect they shut out relatively close rivals.
Companies have not dared to complain about a lot of this publicly because they are afraid that they will be treated as FCA troublemakers. How will the Government and the FCA address this issue now that the scope will be very much wider, drawing in many more pieces of legislation and a much bigger activity base?
Secondly, what kind of oversight does Parliament have as these innovations are introduced? This statutory instrument assumes permanent enactment by negative SIs, but the scope of the legislation essentially makes regulatory innovation subject only to regulatory decision-making. That is a direction which many of us in this House have raised before, and it seems that these changes in particular double down on that concern over both scrutiny and oversight.
As regards the breadth of the shift of what had previously been primary legislation now to the regulator, much of the motivation seems to be driven by the introduction of DIGIT, a digitally native short-dated government debt instrument that the Government intend to issue in 2027. Although DIGIT depends on known technology in the form of blockchain, the risks of unexpected technology failure are high, liquidity is an issue, and the system clearly lacks interoperability. How is Parliament supposed to raise these issues and challenges, given the way in which decision-making is essentially transferred to the regulator, which as far as I can tell has not provided satisfactory answers on any one of the issues that I just listed?
The SI also makes it clear that the regulator can go on to make changes which are far more sweeping than the examples it discusses in the Explanatory Memorandum that is attached. I would very much like the Government to address some of these concerns.
Baroness Neville-Rolfe (Con)
My Lords, I thank the Minister for introducing these two instruments. On these Benches, we welcome the steps that the Government are taking to support the development and regulation of digital assets in the United Kingdom. This is an area of considerable opportunity for our financial services sector, and it is so vital to UK growth. It is important that we establish a regulatory framework that supports innovation and competition while maintaining appropriate protections for consumers and the integrity of our markets.
I recognise the work being undertaken by Chris Woolard, the Government’s digital markets champion, to explore the potential role of stablecoins in our financial system. We also note the Government’s proposed digital gilt next year—DIGIT, as we heard it called by the Minister. The noble Baroness, Lady Kramer, was right to ask about how we can follow the path of these important changes, given that future changes would limit parliamentary accountability.
Although these are broadly welcome developments, I return to a concern that we raised repeatedly during the passage of the Financial Services and Markets Bill through your Lordship’s House: the absence of a clear co-ordinated strategy for the development and adoption of digital assets across our financial system. Indeed, it was precisely this concern that motivated our amendment to the Bill—now Clause 50—requiring the Government to develop a comprehensive digital asset strategy.
The development of digital assets is taking place at considerable pace around the world. Stablecoins, tokenised securities, digital currencies and distributed ledger technologies all have the potential to transform different aspects of our financial system. But these are not isolated developments; they are increasingly interconnected components of what could become a fundamentally different financial infrastructure. Therefore, what we need from the Government is not simply a collection of individual regulatory initiatives such as these, however welcome they might be, but rather a clear explanation of how these initiatives fit together, what the Government ultimately want to achieve and, above all, how they will ensure that the UK remains competitive as these technologies develop internationally. The proposed digital gilt is a useful illustration of this concern. Last week, the FT made the pointed observation that it was unclear what the exercise was intended to achieve beyond demonstrating that a digital gilt could be issued.
Turning specifically to the first instrument, we welcome the Government’s intentions to make UK-issued regulated stablecoins more practical to use for everyday payments, transfers and settlement. The instrument rightly introduces a number of exclusions from the regulated activities framework. I look forward to hearing the Minister’s response to the question raised by the noble Baroness, Lady Kramer, about flexibility in the event of abuse.
I have two areas of concern. First, if you are a potential stablecoin operator, you would be desperate to know exactly what the regulatory regime will be before you finally commit. The Treasury still holds the ring on how payment systems regulation will change, and its consultation has closed. When will final decisions on the regime be taken?
Secondly, the relatively narrow scope of today’s SI illustrates the wider point about the need for a whole-system approach. The principal payment-related exclusions are focused on a particular category of stablecoin: those issued by an appropriately authorised UK issuer. They do not extend generally to the wider range of crypto assets, and other activities, including certain exchanges and custody services, remain within the regulatory perimeter. Therefore, I would be grateful if the Minister could explain how these measures fit within the Government’s broader plans for the adoption of stablecoins and digital assets. Do the Government intend to set out a more comprehensive vision for their practical application across the economy?
Turning to the second instrument, we welcome the Government’s intention to provide greater flexibility for innovation through financial market infrastructure sandboxes. As I understand it, this instrument expands the range of legislation that may be modified within an FMI sandbox rather than itself making substantive changes to those enactments. That additional flexibility is welcome. It is right that firms should be able to test emerging technologies in an appropriate and controlled regulatory environment. I know that the Financial Services Regulation Committee is conducting an inquiry into sandboxes, and I look forward to its conclusions.
A fundamental question is what happens beyond the sandbox. It is one thing to demonstrate that a particular technology or process can work within a controlled environment. It is quite another to establish that it can operate successfully, at scale, within the wider financial market. There is a risk that we develop a succession of interesting pilots that demonstrate technical feasibility but never make the transition into commercially viable, widely adopted infrastructure.
Lord Wilson of Sedgefield (Lab)
I thank the noble Baronesses for those remarks and those numerous questions. I hope I can get to all of them and answer them at least adequately. Both noble Baronesses made a general point about digital asset policy. The Government have a substantial programme of work under the Wholesale Financial Markets Digital Strategy, including legislation, regulation and industry co-ordination. Specific initiatives such as the digital securities sandbox, the digital gilt instrument—DIGIT—the crypto asset regulatory framework and payments reform complement work being taken forward by the regulators and the sector. Chris Woolard, who has been the wholesale digital markets champion, is leading industry’s work through nine taskforce action groups and published his first report back in July. It is also fair to say that there has been cross-party consultation on this, and with the industry. I seem to remember that the noble Baroness, Lady Neville-Rolfe, raised taking stablecoins for payments, not just for general assets, when we discussed this back in February. We all just want to get this right, because it is so technical and it is so important for the economy as well.
To answer the point made by the noble Baroness, Lady Kramer, about FCA oversight and the mini-bond scandal, for example, the Government consider this approach to be the right and most appropriate one. UK-issued stablecoins will remain subject to high regulatory standards, and other requirements continue to apply. I will write to the noble Baroness on the issues that she raised on repo and collateral.
The digital securities sandbox allows both incumbents and new entrants to come into it. At the moment, 17 have gone through the first gateway, and three are actually in the sandbox now and in a position to—
Baroness Kramer (LD)
Can I just ask whether the Minister has any numbers for how many people have applied to go into the sandbox and have been turned down? Do we know, or do they get discouraged so early that there is no record?
Lord Wilson of Sedgefield (Lab)
I shall write to the noble Baroness on that. What I do know is that organisations are applying to go into it, so it is obviously being used and the industry sees it as very important. As I have said, we just need to get this right.
Further affirmative SIs may be needed as permanent changes issuing from these debates come forward in future. On the removal of UK-issued stablecoins from these activities creating a gap in consumer protection before the new payments regime is introduced, it is true that certain UK stablecoin transactions that would have fallen from the crypto regime will now remain unregulated until the payment reforms are implemented. However, the Government consider that this is the right approach and is more proportionate than requiring stablecoin payments to obtain crypto permissions now, only to seek different permissions under the future payments framework. This does not mean that stablecoins will be removed from regulation. Stablecoins issued in the UK will remain subject to high regulatory standards, and firms will remain subject to other applicable regulations.
Turning to some of the points made by noble Baroness, Lady Neville-Rolfe, on the issue of DIGIT, the Government are helping to demonstrate the technology through the digital gilt instrument. DIGIT will be a new digitally native UK government debt instrument issued on DLT within the DSS. The pilot is intended to test DLT across sovereign debt issuance and to catalyse development of UK digital market infrastructure, and the first transaction is expected in the first quarter of next year.
The noble Baroness, Lady Neville-Rolfe, also asked about the Government’s plans for stablecoin. It has the potential to have a significant role in retail and wholesale payments. We already see the benefits that stablecoin can provide in cross-border payments, reducing costs and improving efficiency. The Government also recognise that unlocking the full transformative potential for digital assets and blockchain technologies requires payments that interact with them directly, and stablecoin can play an important role in achieving this. It will therefore be important for the UK to harness those opportunities in promotion of the ongoing competitiveness of UK financial services. The crypto asset SI is explicitly intended to support a competitive UK regime by removing barriers while retaining appropriate regulation.
The noble Baroness, Lady Neville-Rolfe, asked about digital assets. The Government are a strong supporter of digital assets and see them as a key strategic priority. The Government are actively taking forward actions set out in the July 2025 wholesale financial markets digital strategy. We have appointed to Chris Woolard, and many other actions are being taken to support this work, such as the Bank of England and Financial Conduct Authority’s input on tokenisation, which closed in July. They intend to publish a further road map soon.
The Government have also made substantial progress on the digital security sandbox and the digital gilt instrument. I think it fair to say that the Government are taking this very seriously. We see the contradictions in this, especially with stablecoin and the efficiencies it can make. Obviously, the parliamentary regime and consultation is very important. The crypto asset SI avoids duplicative requirements for UK stablecoin payment activity ahead of wider payment reform, ensuring that requirements designed for crypto asset trading do not apply disproportionately to stablecoins used for payments, while regulation is retained where the risk is justified.
For the sandbox, these regulations make targeted additions to the legislation within scope of the FMI sandbox powers. This is needed because barriers to innovation cannot always be identified in advance. The changes will ultimately allow the digital securities sandbox to operate more effectively and, in particular, to provide the flexibility necessary to support the issuance of DIGIT through a platform participating in the sandbox.
In conclusion, these are proportionate measures that support innovation in financial services while maintaining appropriate protections. They ensure that regulation is targeted at the risks presented and that our frameworks can adapt as markets and technology develop. I commend both instruments to the Committee.
Baroness Neville-Rolfe (Con)
I was pleased to hear that the Government will publish another digital road map. It would be good to know whether it will be shared with Parliament in some way and will cover some of the broader issues beyond the wholesale side.
Lord Wilson of Sedgefield (Lab)
I am sure we can arrange that when it is published. Because it is such a technical issue, we obviously need to ensure that we have expertise from all over the place to keep us on board with what is happening in this field, so I take on board what the noble Baroness is saying.
Financial Services and Markets Act 2023 (Addition of Relevant Enactments) Regulations 2026
(1 day, 12 hours ago)
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Lord Wilson of Sedgefield
That the Grand Committee do consider the Financial Services and Markets Act 2023 (Addition of Relevant Enactments) Regulations 2026.
International Claims Commission for Ukraine (Immunities and Privileges) Order 2026
(1 day, 12 hours ago)
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Lord Wood of Anfield
That the Grand Committee do consider the International Claims Commission for Ukraine (Immunities and Privileges) Order 2026.
The Parliamentary Under-Secretary of State, Foreign, Commonwealth and Development Office (Lord Wood of Anfield) (Lab)
My Lords, this order is required before the UK can ratify the convention establishing an International Claims Commission for Ukraine. Noble Lords will remember that the UK signed the convention on 16 December 2025.
The international claims commission builds on the register of damage for Ukraine established two years earlier, in 2023, which collects and records claims from individuals, organisations and public bodies in Ukraine for damage, loss and injury inflicted by Russia. Once the commission has been established, the register and its work will be transferred to the commission. The commission will review, assess and decide on claims recorded in the register, as well as subsequent claims, and determine the amount of compensation due in each case.
The convention requires participating states to confer specified privileges and immunities on the commission and on persons connected with its work, to enable them to perform their functions independently and effectively. That is what this order is about: it gives effect to those requirements in UK law. By ratifying the convention, the UK will support the principle that Russia must pay for the damage it has caused and help establish a credible international process for assessing claims and delivering justice for Ukraine.
This is about more than compensation. It is part of the UK’s wider commitment to stand with Ukraine for the long term—a commitment shared by both this Government and the previous Conservative Government —and to ensure that Russia is held accountable for the consequences of its aggression. There can be no just and lasting peace without justice and accountability, and the claims commission is an important step towards ensuring that those who have suffered loss, injury and damage have a credible route to redress.
This order was laid in draft before Parliament on 14 September 2026 under Section 10 of the International Organisations Act 1968. It is subject to the affirmative procedure, and, if approved by both Houses, it will be made by His Majesty in Council under Section 1 of that Act.
Lord Bruce of Bennachie (LD)
My Lords, I thank the Minister for this introduction. We debated this in June. This is the next step in its implementation, and I think it is welcome on all sides. As the Minister said, this is an instrument of the Council of Europe, and I have just a few questions for him.
This obviously takes us further down the road. Has the commission started work or when is it likely to start work? It is understood and accepted that there are no plans to visit the UK and that whatever plans might happen in the future are limited, but presumably there is the possibility that members of the commission may wish to interview Ukrainian exiles in the UK in order to get evidence for assessing damages. It would be interesting if the Minister could clarify whether that would be the case. Certainly, one would not want to obstruct such a process.
We are debating this against the backdrop of current meetings between Russia and the United States, which, to be honest, are quite concerning. What it seems is being discussed comes pretty close to something like persuading the Ukrainians to surrender, which I know is not the UK’s policy. Apart from a few fringe people in the political arena, all the official parties are strongly supportive of Ukraine.
Can I test the Minister a little? I know it is hypothetical, so I have no doubt that he will use that as a defence. President Zelensky has said that he is worried that we may be facing a new Yalta: a situation where the great powers carved up Europe without much reference to the people who were directly affected by it. That is obviously President Zelensky’s concern. People can recognise that the brave people of Ukraine are war-weary and exhausted and would welcome peace, but not peace at any price.
Are we involved in these negotiations, and to what extent does Britain have the opportunity to influence the outcome and ensure that the interests of Ukraine and, indeed, the wider interests of Europe, are fully appreciated? One of the concerns that many of us have is that there is a degree of ignorance and carelessness within the American Administration and, indeed, America’s wider political society, in regarding Europe as some faraway place that does not affect them very much. It affects us very much, and it is not acceptable that it should be carved up by outsiders who are not party to this. I hope that the Minister will understand the concerns we have.
On the specifics of the commission, I remember from the last debate that the seized Russian assets added up to about half the assessed damages or liabilities at that time. Is that still the case? Can we be sure that this is the best case for ensuring that those assets are not returned to Russia but are instead used for these purposes, and that the other half is still an obligation on Russian when it comes to the time of reconstruction?
On a very minor but important detail, on the fact that the commission does not allow road traffic offences to be given immunity, we realise from past experience that this is important. We have had concerning misuses of immunity in the past, so I want to acknowledge that we are grateful that this has happened and to accord the fact that the devolved Administrations have said that those aspects of the commission’s activities that are devolved will be subject to separate legislation, which I understand is at hand.
To conclude, I welcome this development. Timetabling would be of interest and, obviously, assurances that it will happen and that we will not be left with a situation where outsiders, in effect, negate its efficiency.
As a passing interest, many years ago I was for several years a member of the Parliamentary Assembly of the Council of Europe, an organisation for which I have huge admiration and was very grateful to be part of. It continues to produce valuable initiatives and support democracy and human rights, more vigorously than perhaps any other institution in Europe. I hope that the United Kingdom will continue to be a full and active participating member of the Council of Europe. As an aside to the Conservative Front Bench, I am concerned that the Conservatives are going down a path that could lead to Britain’s withdrawal from the Council of Europe if we were to withdraw from the European Convention on Human Rights. Support for the convention is a precondition of membership. I hope that that will not be the case, but I cannot leave this without saying that it is a concern.
The Earl of Courtown (Con)
My Lords, I thank the Minister for going through this debate on the International Claims Commission for Ukraine. As he said, the order gives effect to the privileges and immunities required by the convention in establishing the International Claims Commission for Ukraine (Immunities and Privileges) Order. As the noble Lord, Lord Bruce, said, we debated the convention in detail in June, and I will not detain the Committee with a rerun of that detailed debate. However, some points raised by my noble friend Lord Callanan in that debate remain relevant. I hope the Minister will be able to provide an update on them.
On the question of Russia’s liability for the costs of the commission, can the Minister say what assessment the Government have made of the likely total cost to the UK of the commission, should Russia never join it? In addition—and the noble Lord, Lord Bruce, touched on this—can the Minister say what the Government’s latest position is on the use of frozen Russian assets to support Ukraine? The Minister’s predecessor did not answer the point in our previous debate about including compensation for Russian actions between 2014 and 2022. Perhaps I can press the Minister for an answer on that today.
The noble Lord, Lord Bruce, mentioned the position of my party on the ECHR. The Conservative Party would leave the ECHR. This policy has been considered in detail, and it has been set out in full. We would, of course, continue full-throated support for Ukraine outside the ECHR, and I see no reason why leaving the ECHR should prevent us backing efforts to ensure that Ukrainians who have suffered such loss as a result of Putin’s illegal war get the compensation they deserve.
Lord Bruce of Bennachie (LD)
I am grateful to the noble Lord, but I wonder if I might get clarification, because leaving the ECHR means leaving the Council of Europe. There are only two countries in Europe that are not members of the Council of Europe. They are Russia and Ukraine. So, is the Conservative Party’s position that the UK is going to be the third one?
The Earl of Courtown (Con)
I think I will leave it as I have already said. We are steadfast in our support for Ukraine, and we will support the Government when they are doing the right thing by our Ukrainian partners, who have suffered so terribly at the hands of Vladimir Putin.
Lord Wood of Anfield (Lab)
I am grateful to the noble Lord, Lord Bruce, and the noble Earl, Lord Courtown, for their contributions. I will try to quickly answer their questions. The noble Lord, Lord Bruce, asked whether the commission has started work. No, it has not started work yet. The register of damages has been compiled. The process is that countries such as the UK have to confirm the convention, and this SI enables us to do that. We anticipate—I am looking at my officials—that that will be ratified early next year, and other countries have to do the same. Then the process of beginning an administrative body to do the work begins. The register of damages, which is the essential prerequisite for this, is well in train, but not the claims commission itself.
The noble Lord, Lord Bruce, also asked whether the claims commission will want to do interviews in the UK. It is quite possible. I cannot see into the future, but these privileges and immunities are the standard way in which members, officials and functionaries of the commission would work, consistent with commitments we have and the behaviour we expect. The noble Lord, Lord Bruce, also asked me to become a CNN pundit on the Abu Dhabi talks—I feel like a CNN pundit on this one. Jonathan Powell, the National Security Adviser, my friend and colleague, is in Abu Dhabi today and tomorrow. He will be in the vicinity of the conversations. We are fortunate in having him as a National Security Adviser with extremely close connections to the E3 national security adviser network and to the American representatives. We are pleased that we have some engagement in this process.
The noble Lord is also right to say that there are a number of different initiatives. The Finnish and Norwegian leaders recently had a call with Vladimir Putin, and there is uncertainty about what will happen next. I live in hope that there will be a breakthrough in Abu Dhabi. My expectations are governed by a series of false dawns when the Russian position, sadly, did not change. To go back to the point made by the noble Lord, Lord Bruce, I completely agree that there are lots of questions about the future of European security that need to be answered, but a ceasefire has to be in place first before any of these other issues are addressed collectively. That ceasefire should be achieved as soon as possible.
Both the noble Lord and the noble Earl raised the issue of Russian sovereign assets. Our position is that Russia should compensate Ukraine for its internationally wrongful acts: it must fund the cost of the reparations mechanisms. Until Russia agrees to do so, the operational costs of the claims commission—just those costs—will be covered by its member states from the point at which the organisation is established. As a member, the UK will contribute to these operational costs. The precise amount will depend on the agreed funding arrangements between members, which is yet to be decided.
Arrangement of Business
The Deputy Chairman of Committees (Lord Vaux of Harrowden) (CB)
My Lords, if there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
National Policy Statement for Fusion Energy Generation
(1 day, 12 hours ago)
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Baroness Curran
That the Grand Committee takes note of the initial proposed National Policy Statement for Fusion Energy Generation.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Baroness Curran) (Lab)
My Lords, it is a pleasure to be with you this afternoon. At its heart, EN-8 is about preparing for a transformative new energy source. Fusion offers the prospect of abundant, low-carbon, safe energy. It has the potential to strengthen our long-term energy security, support economic growth and position the United Kingdom at the forefront of the emerging global industry. Fusion is already supporting UK jobs, supply chains and innovation. Efforts to commercialise it will enable us to capture a significant proportion of the emerging global market.
This debate is not about what specific projects should look like or where they should be located. Rather, it is about ensuring that our planning system is ready for the significant opportunities that future fusion energy projects may bring to local areas and to the UK as a whole. It is about signalling to the rapidly growing global fusion industry that the UK is open for business and that we are ready to support real-world fusion energy deployment.
EN-8 marks an important milestone in that journey. As noble Lords will know, national policy statements are statutory documents prepared under the Planning Act. They provide the principal framework for the assessment of development consent applications for nationally significant infrastructure. Once designated, EN-8 will be world’s first national planning policy dedicated to fusion energy infrastructure. It will sit alongside the Overarching National Policy Statement for Energy (EN-1) and provide the primary planning framework for nationally significant fusion energy projects in England and Wales.
It is important to be clear about what EN-8 does and does not do. EN-8, alongside EN-1, provides developers and decision-makers with clear policy for assessing nationally significant fusion energy projects. It establishes a proportionate approach that reflects fusion’s distinct characteristics, while ensuring rigorous assessment of relevant environmental and safety planning considerations. As fusion remains a rapidly developing field and future facilities may differ in design and operation, EN-8 provides for a deliberately technology-neutral framework that supports innovation and will remain relevant as fusion technologies develop.
What EN-8 does not do is approve any specific fusion energy development. Nor does EN-8 allocate sites for future fusion projects. Nor does it replace existing regulatory regimes that protect the environment, workers and communities. Rather, EN-8 provides much-needed clarity and transparency for decision-makers, as well as developers who want to build in the UK, reducing uncertainty and making the UK a more desirable place to invest.
Why is a stand-alone NPS needed for fusion, and why now? The simple matter is that it would not be appropriate to apply requirements designed for nuclear fission power stations to fusion facilities, given the differences in the technology. The two technologies are fundamentally different and have very different hazard profiles. Fusion involves joining light nuclei, such as hydrogen isotopes, to produce heavier ones, such as helium. Fusion does not use the fuels used in nuclear fission, cannot create a runaway chain reaction and does not create very long-lived radioactive waste. A fusion-specific national policy statement therefore provides the most proportionate and effective approach to planning for future fusion energy developments that supports innovation and investment.
With over 70 years of research and development and a world-leading regulatory framework separate to nuclear fission, the UK has already established itself as a leading destination for fusion research and development. In our March 2026 fusion strategy, we set the guiding objective to accelerate growth of our UK fusion industry. Major programmes such as the spherical tokamak for energy production—I think I got that right—which is our prototype fusion power plant programme, demonstrate our ambition to remain at the forefront of global efforts to commercialise fusion energy and provide the demand to grow a UK supply chain. We are also seeing private development such as the UK Infinity Fusion Consortium moving at pace and developing plans to deploy in the UK. Implementing a clear and predictable planning framework now is therefore an important part of creating the conditions necessary for investment and deployment.
EN-8 is therefore not simply a planning document. It is part of a broader effort to ensure that we are ready for the opportunities that fusion can offer. It provides certainty where certainty is needed, flexibility where flexibility is required and a proportionate framework that reflects the distinctive characteristics of fusion technology. EN-8 has been designed with these principles in mind.
EN-8 follows the structure of other technology-specific energy national policy statements and sits alongside the Overarching National Policy Statement for Energy (EN-1). EN-8 explains how EN-1’s generic assessment principles apply to fusion energy infrastructure and sets out the fusion-specific considerations that earlier consultation has suggested. It explains what, if any, additional factors need to be considered by developers of fusion energy infrastructure.
In addition, while the Nuclear Regulatory Review deliberately excluded fusion, given the differences in technology and regulatory approach to nuclear fission, we have nevertheless considered the review’s recommendations carefully and reflected those relevant to fusion in EN-8. The draft NPS does not exclude semi-urban locations and acts only where necessary, it supports socioeconomic benefits from fusion and it avoids unnecessary or duplicative requirements through proportionate, outcome-based assessment. EN-8 gives developers, regulators, communities and decision-makers clarity and confidence, while retaining flexibility for the future.
Between June and August this year, the Government consulted publicly on the draft EN-8. Respondents from industry, academia, regulators, councils and the public broadly supported a technology-neutral framework dedicated to fusion which is aligned with the wider national policy statement suite. Of course, respondents also highlighted areas where further clarification could be helpful, including on the interaction with regulatory regimes, the approach to phased or evolving fusion projects, the treatment of cumulative impacts, climate resilience and the wider socioeconomic benefits that fusion may bring. These are all important points, and the Government are carefully considering all consultation responses as part of the next stage of the process. I would like to place on record my thanks to everyone who contributed to the consultation and to the Energy Security and Net Zero Committee for its scrutiny of the draft document.
Fusion remains a potentially transformative energy source, and commercial deployment is growing ever nearer. But if the United Kingdom is to maintain its position as a global leader in fusion, we cannot wait until projects are ready to be built before putting the necessary frameworks in place. I look forward to hearing the views of noble Lords in today’s debate. I beg to move.
Lord Khan of Burnley (Lab)
My Lords, I welcome the publication of the Draft National Policy Statement for Fusion Energy EN-8. We stand at a critical juncture in our transition to a clean energy future. Fusion energy offers the extraordinary promise of near-limitless low-carbon power without the long-lived high-level radioactive waste associated with traditional nuclear fission. By establishing a dedicated, streamlined planning framework today, we ensure that the United Kingdom remains a global leader in commercialising this revolutionary technology.
We can see the tangible reality of this ambition right now in Nottinghamshire with the pioneering spherical tokamak for energy production, or STEP, project at West Burton. This world-first prototype is not just a scientific experiment; it is an economic engine for the East Midlands, proving that the green transition can drive regional growth, create high-skilled jobs and revitalise our industrial heartlands. By providing a clear planning pathway through EN-8, we give the STEP project and the commercial ventures that will inevitably follow it the long-term certainty that they need to succeed.
I particularly welcome the Government’s decision to grant fusion projects critical national priority status, aligning them with our broader decarbonisation goals under EN-1. Furthermore, distinguishing fusion from fission by removing rigid population density restrictions is a sensible, science-led approach that recognises the inherent safety advantages of fusion technology, where a meltdown or runaway chain reaction is physically impossible.
However, while we must pave the way for innovation, we cannot afford to outpace our regulatory safeguards. A robust policy framework must answer the difficult questions before the concrete is poured. First, we must address the capacity and readiness of our regulators. The Energy Security and Net Zero Committee recently raised valid concerns regarding the relative inexperience of environmental regulators with first-of-a-kind commercial fusion. How are the Government planning to resource the Environment Agency and the Health and Safety Executive so that they can rigorously assess complex systems such as STEP without administrative bottlenecks?
Secondly, while fusion does not produce high-level waste, it generates significant amounts of low and intermediate-level radioactive materials through tritium use and materials activation. What specific criteria would EN-8 enforce regarding lifecycle assessments and the long-term decommissioning of these facilities? Where and how will this waste be safely managed?
Finally, as prototypes scale up into commercial plants, we must look at the broader geopolitical and security landscape. How will this planning framework interact with non-proliferation considerations, particularly concerning the international supply chains for deuterium and tritium?
EN-8 is a bold, necessary and deeply exciting step forward. If we can resolve these pressing questions around regulatory resourcing, waste management and supply chain security, we will not only secure our own energy independence but pioneer a clean energy blueprint for the rest of the world. I thank the Minister for introducing the national policy statement and for her introductory remarks, and I look forward to her response.
Earl Russell (LD)
My Lords, it is a pleasure to speak in this debate, and I thank the Minister, the noble Baroness, Lady Curran, for securing it. I welcome the chance to speak on what is a really extraordinary scientific journey—one that, as others have said, is vital to our long-term net-zero future. The running joke has always been that fusion is the energy of the future and is always 30 years away.
Earl Russell (LD)
Whether 15 or 30 years away, however, we are making progress, and that joke does not really apply anymore. We are trying to do something really extraordinary: to build a star here on earth, to heat hydrogen to around 10 times the temperature of the core of the sun, and to hold plasma in a chamber with magnets cooled to near absolute zero.
Britain is not sitting on the sidelines on this but is actually leading the world. The Joint European Torus at Culham has set records for fusion energy output. The MAST upgrade is the world’s largest operational spherical tokamak. Public and private investors, from the UK Atomic Energy Authority to Tokamak Energy, are pushing ahead and pushing each other forward. We have rightly earned our place at the heart of this.
The prize, as others have said, is incredibly large. The International Atomic Energy Agency counts fusion among the most environmentally friendly sources of energy: no carbon dioxide; no harmful atmospheric emissions; and it produces fuel from hydrogen and lithium, which are both widely available. We know that electricity demand here is expected to double, or more than double, by 2050, as we seek to electrify our heating, transport and industry. The UK Atomic Energy Authority believes that fusion could provide steady baseload power that would complement our renewables. If it works at scale, we could move from an energy politics of scarcity and competition towards abundance, and the global market has been estimated to be worth £12 trillion.
But we need to be honest about the climate argument, which is a point that the Commons Energy Security and Net Zero Committee also made. The earliest we will see this energy in production and viable is the 2040s, so we need to continue on our renewables journey and we need to cut our emissions. This energy will come late in the day in terms of meeting our climate targets.
That being said, we on these Benches back fusion. We support it, and we support the £2.5 billion invested so far and the £1.3 billion to be put into STEP. The Government are backing a winner, and I believe that it is justified, but the risk is also large, and the horizon is long. Ministers and the Government have a duty to be open about the costs and processes involved and to make sure that we are getting value for public money.
That brings me to EN-8. As the Minister said—I did not know this until she said so—it is the world’s first policy for energy fusion. Obviously, planning policy is our primary consideration here today. There is a lot here that we welcome and support, and my sense is that that is also the case for others around the Room today. We welcome the designation of low-carbon fusion energy as a critical national priority; the priority for brownfield and former energy sites; and the recognition that fusion’s low radiological risk means no population density limits. We also welcome the encouragement of collocation with energy-intensive users, such as data centres, and the 19 fusion-specific considerations on top of EN-1.
We also welcome the broadening of what can count as a nationally significant project. The Government are bringing in fusion infrastructure with thermal, or combined thermal and electricity, capacity over 50 megawatts, which recognises that fusion plants may supply heat as well as power. We also welcome the application of good design principles, which are key, and how the new plants will meet the very important climate-resilient targets—as we know, our climate is changing in the future.
As the Minister said, industry has broadly welcomed the draft. I thank the Minister for noting that the Government will look at the responses and points that have been made on that draft.
I have a few areas that I would like to explore while I have the chance to do so. In 2022, the Government decided that fusion would continue to be principally regulated by the Health and Safety Executive and the relevant environmental agency. As the noble Lord, Lord Khan, has already mentioned, of course we recognise that fusion is not fission, but the Commons Energy Security and Net Zero Committee was entirely unconvinced that removing the Office for Nuclear Regulation would reduce bureaucracy and warned that “the relative inexperience”—or, really, the complete inexperience—
“of the Environment Agency may lead to the excessive caution”
in this field. My question for the Minister, therefore, is: how will regulators be adequately resourced? What specialised staff are the Government seeking to recruit and what are the timeframes for ensuring that all this is done in good time?
I understand that fusion sits outside the nuclear siting and licensing regime of 1965; that makes sense, but questions remain about how third-party liability, insurance and—as has already been mentioned—long-term waste costs can be handled. As the industry seeks to invest, it will need further clarity on these points.
Can the Minister also say a little more on where we are at with the STEP programme? I understand that the aim is to submit a development consent application in 2029 and to start building in 2030. Even conventional schemes can take well over a year, so are we still on track for this timetable? It feels like quite a tight timetable for a one-of-a-kind plant.
Fusion plants will be strategic national assets and the supply chains behind them will depend on global supply chains. What considerations have the Government given to securing those supply chains, particularly when we will face a world of competition, particularly with the USA and China, which are particularly investing in this technology? What are we doing to make sure that those supply chains work?
The Energy Security and Net Zero Committee also called for non-proliferation guidance to be issued now, not at the five-year review. Will the Government accept that recommendation?
For me, another important point is that these are really big infrastructure projects and we want to support community benefits. What more are the Government doing to make sure that local economies, the wider economy and the people who live next to these big industrial sites will benefit from them? Is it still expected that STEP will support around 10,000 jobs? What work is being done to support the skills and apprenticeships that will go with that?
Issues have also been raised around how we talk to local communities about these projects. Obviously, this is a new, evolving and unknown technology, so there is a real need for the Government to put effort and consideration into how they communicate these projects to make sure that the public are reassured of their inherent safety.
Cooling water is an issue. Tomorrow, we will debate the Environment and Climate Change Committee’s report on drought. Obviously, we know that this is subject to forward plans, but it looks like we could be short by 5 billion litres of water per year by 2030. These plants have big cooling needs, and they may be collocated with data centres and other high intensity water and energy requirements. Given that collocation is mentioned in this document, will the Government give more consideration to desalinisation or other methods so that we can look at water usage? Water usage is quite a critical element of these projects.
There is still some debate about the relationship between EN-1 and EN-8; I understand what the Minister says, and that EN-1 is the overarching document. I welcome the fact we have developed a separate policy with EN-8, but there are some issues about the relationship between those two documents, which could do with further clarification.
I also want to ask about the energy spatial plan, which the Government are in the process of developing and should be published later this year. But this plan needs to work with the energy spatial plan. These plants, particularly at start-up, will require to draw huge amounts of energy from the grid—although, when they are up and running, they will supply energy back to it—so grid planning and siting are key issues.
I like the fact that we are at the forefront of this technology, but the technology is evolving and changing, and other countries are investing heavily in it. Just yesterday I was reading about the helicon current drive at the DIII-D national energy facility, which is a new development of an old technology that hopes to maintain a steady state for longer so that we can get closer to getting long-term energy out of these plants. That highlights that the technology is moving really quickly, so I guess there is a question about how EN-8 will develop with new technologies.
In the European Union, policy on fusion energy is still country based, and we are ahead of the EU now. But these are big, large-scale projects, and as part of our reset with Europe we should be looking for greater co-operation with our European partners. I think we are actually ahead of the game here, and on this document we could be leaning into Europe to develop better policies based on this. I would encourage the UK Government to include fusion as a key element of our European reset.
We are supportive of this national policy statement. We think this is a real opportunity for the UK to press home its technological advantages in this area. The development of and investment in this technology is really important towards providing our future long-term energy security and helping deal with the problems of energy use and climate change.
Lord Moynihan (Con)
My Lords, I declare my interest as chair of Amey, Acteon and Buckthorn Partners. I welcome this national policy statement and congratulate the noble Lord, Lord Khan, on his contribution. I will return to the specific points he raised as I think they are very important in the context of getting this policy right. We are in a period of consultation. The strategy aims, as we know, to accelerate growth in the UK fusion industry, building on the £2.5 billion in R&D provided by the previous Conservative Government. Today, this will be primarily achieved by investing £1.3 billion into the spherical tokamak for energy production—STEP—prototype fusion power plant. STEP, as has been mentioned, aims to design, develop and build a prototype fusion plant by the 2040s. The Conservative Government committed £240 million in funding towards the first phase of concept design in the previous Parliament.
Before I go into detail on a specific number of issues, which I would be grateful to the Minister to take into account, this is part of the Overarching National Policy Statement for Energy, or EN-1. It was drawn to our attention in the statement that we should also read EN-1 and other relevant national policy statements. In reading it, I came across a section that I know will have the enthusiastic support of the Minister, because it talks about the need for new nationally significant infrastructure projects and new nuclear energy infrastructure. Also within the section is the acknowledgement of the
“need for new nationally significant gas infrastructure”.
Gas is noted
“as a reliable source of flexible generating capacity”.
We need to:
“Meet ‘peak’ demand for gas”,
and
“Allow for a sustained delivery of large volumes of gas, for example, demand over a particularly cold winter”
and also
“Provide access to the most competitive gas supplies”.
In the spirit of harmony across this Committee, I congratulate the Chancellor on announcing Jackdaw. On the subject of hydrocarbons, we on this side of the Committee welcome the approving and defending of the Sea Lion Field by the Foreign Secretary—now known as the MP for Port Stanley and the Government’s special oil envoy for the South Atlantic. I say that today because this is the first day of consideration by the International Tribunal for the Law of the Sea, under the UN convention, in its hearing on the UK/Argentina dispute, of oil exploration in the Sea Lion Field. We wish the Foreign Secretary well in his strong defence of oil production in the South Atlantic.
Turning to the specific points in the Motion before us, particularly in terms of the House of Commons consideration of planning for fusion and the draft national policy guidance, I thought it would be helpful to outline some of the concerns and comments made by the private fusion companies and industries bodies. They welcome the draft National Policy Statement for Fusion Energy Generation but submitted several key requests for stronger political clarity. I very much hope that these will be taken into account by the Government.
They noted that individual private fusion companies did not submit stand-alone written evidence to the House of Commons Energy Security and Net Zero Committee’s inquiry. Instead, private sector views were channelled through representative bodies, primarily through the Fusion Industry Taskforce, or FIT, which represents more than 20 private engineering, supply-chain and fusion organisations, and the Fusion Industry Association, or FIA, which is the global trade body for around 50 private fusion developers. I would like to address some key points raised by the private sector representatives during the parliamentary scrutiny of draft EN-8 and ask the Minister to ensure that, if she does not fully respond today—which I would totally understand—all these points will be taken into account when the Government come to respond.
First is the question of unclear regulatory sequencing and timing. The FIA and FIT warned that draft EN-8 lacks sharp clarity on how the development consent order process interacts with regulatory justification decisions and permitting by the Health and Safety Executive and the Environment Agency. Industry representatives stressed that unclear decision points prevent developers and their supply chains committing capital and signing contracts with confidence.
The second point, admirably raised by the noble Lord, Lord Khan, as well as by FIT, is the concern is that the HSE and Environment Agency currently lack enough suitably qualified and experienced personnel to evaluate what are diverse, first-of-a-kind private fusion plant designs. FIT warns that capability bottlenecks inside these regulators could severely delay plant approvals as the sector scales. This challenge is recognised across the Committee and I hope the Government will take it into account and respond fully when it comes to their public response.
The third point is ambiguity over long-term radioactive waste liabilities. FIT commented that the draft EN-8 note failed to define who holds long-term financial and operational responsibility for fusion waste disposal across a facility’s life cycle, specifically how liability is split among the developer, the operator and the Government. It noted that this uncertainty directly harms private investment cases and project profitability.
The next point is the absence of decommissioning funding mechanisms. Industry witnesses highlighted that separating fusion from nuclear fission under the Energy Act 2023 removed established fission decommissioning frameworks without replacing them. Private sector developers require a clear, proportionate mechanism for meeting future decommissioning costs rather than waiting until the Government’s target date of autumn 2027.
Then there is the very important issue of silence on third-party radiological liability and insurance. Supporting industry concerns, Lloyd’s Syndicate 1176 and sector witnesses pointed out that neither EN-1 nor draft EN-8 establishes substantive policy on third-party radiological liability, insurance or financial protection. Fusion is excluded from the Nuclear Installations Act 1965, so private developers cannot rely on existing fission insurance pools and therefore face uncertainty over early-stage risk coverage. That is another point that I hope the Government will be able to address.
There is also the very important point about the risk of planning consenting becoming the critical path. Industry leaders warned that if planning and consenting timelines are not streamlined alongside EN-8, bureaucracy rather than engineering would become the main bottleneck to building commercial plants in the 2030s. They stressed that planning frameworks must match the rapid commercial pace of private developers already selecting sites for pilot power stations. This is absolutely critical. I suggest to the Minister that more regulation and red tape can suffocate private sector development, and I hope she will be able to respond positively to the points that have been made on planning. One is on delaying commercial deployment: private developers, some targeting pilot plants by the early 2030s, have argued in planning consultations that overly prescriptive, multi-stage, statutory engagement rules risk slowing down first-of-a-kind infrastructure delivery.
Then there is the question of consent-based siting advantage. Take the example of West Burton; it was selected through a competitive volunteer-led siting process in an area—Megawatt Valley—with a 60-year heritage of coal power generation and strong local appetite for industrial renewal. Planning specialists point out that private developers acquiring commercial or greenfield sites without a prior local bidding contest face very different community dynamics that cannot be replicated simply by covering STEP’s outreach template.
There is then the question of reversing the Planning and Infrastructure Act. The Government recently removed rigid statutory pre-application consultation requirements from the Planning Act 2008, specifically to cut red tape and prevent developers running defensive box-ticking consultation rounds to avoid judicial reviews. Reintroducing a bespoke statutory consultation standard solely for fusion runs counter to the Government’s wider push for streamlined, flexible pre-application guidance. These two aspects of planning law need to be considered and, I hope, responded to by the Government.
There is a risk of gold-plating and regulatory caution from adding extra consent layers. In written evidence to the committee, planning stakeholders warned against creating additional consent letters or rigid procedural hurdles for nascent technologies. Critics argue that turning voluntary practice into strict statutory law invites legal challenge over whether a developer met subjective standards of “good” engagement, potentially recreating the exact planning bottlenecks that EN-8 is designed to prevent. At the heart of the questions that I put to the Government this afternoon are these critical planning issues that need to be addressed if we are to be successful in taking this technology forward.
Finally, I add one or two additional points that were made by those making representations on the note before us. One is a lack of a commercial market and off-take framework. In oral evidence, the FIA emphasised that planning rules alone would not deliver private fusion plants without a supporting commercial market mechanism. Private developers targeting competitive power prices need clear revenue and off-take structures alongside EN-8 to unlock private project finance.
Then there is the question of the need to support export and engineering ambitions beyond UK builds. As the noble Earl, Lord Russell, alluded to—I was going to call him my noble friend, but he is my noble friend on this issue as we are agreement on this—the FIT argued that the draft EN-8 focuses too narrowly on domestic site construction, rather than positioning the UK as the premier global hub to develop, engineer and export fusion technology. It urged the Government to ensure that planning and regulatory frameworks reinforce sovereign supply chains and international exportability. If we develop the IP that is involved in this, that is a critically important point for the Government to look at.
Reference has also been made to the importance of securing long-term skills and supply chain certainty. Both the FIT and the FIA noted that private fusion firms are predominantly people-driven enterprises that require a predictable multi-project pipeline to attract talent and justify supply chain investment. They warned that, without clear policy signals linking EN-8 to a trained workforce and to skills programmes, UK firms risk losing engineers and manufacturing capability to competing markets such as the US and China.
Finally, in oral evidence, private sector representatives highlighted the challenge of transitioning public laboratory breakthroughs, such as those at Culham, into private commercial enterprises. They called for clearer pathways to ensure public/private partnerships and national test facilities actively accelerate private sector deployment, rather than keeping intellectual property and capability locked inside state programmes.
These are all reasonable points that have been made about the Draft National Policy Statement for Fusion Energy Generation EN-8, and which the committee in another place wisely looked at in its report Planning for Fusion. Given that we have not yet heard the Government’s response, I very much hope that this exchange in Committee is taken as part of the consultation exercise. I also hope that the points raised by the noble Earl, Lord Russell, and the noble Lord, Lord Khan, are considered as representations and fully responded to by the Government. I would not necessarily expect the Minister to respond today, as that would be unreasonable because many of these points are very detailed, but the Government should take them into account when they come to respond fully to the whole consultation exercise and, indeed, to the committee’s consideration of these issues in another place.
Baroness Curran (Lab)
I thank noble Lords for a very substantial debate, and I very much appreciate the comments they have made. If I may begin with the very last comment made by the noble Lord, I can assure him that my view as a Minister, which I would be certain about, is that comments made in Parliament have very significant status. Particularly given the detailed consideration that has been given here today, I can guarantee that that will be fed into the concentration process; it will be given special status, because it is from Parliament, and it will feed into forming the view that the Government take to respond to that. I also thank the noble Lord for recognising that some comments here today are very detailed indeed, and I may not respond to all of them, but I guarantee that I will come back in detail to them and feed them in.
I also appreciate the noble Lord’s ingenuity because, in every engagement I have with him on the broadest range of energy topics, he squeezes in Jackdaw and the court case that is going on today. I recognise that, but he does that in great spirit because of his commitment to the issue, rather than for any other reason.
I will just make two broad points before I go onto the detail in front of me. The first is on the broad issue of planning. I recognise the substance of what the noble Lord said about planning issues and their relevance to the whole energy field. I think I have said in Parliament before that, in a previous life when I was a Member of the Scottish Parliament and when it was of a different persuasion, I was a Planning Minister. I took the importance of planning very seriously, as a mechanism to protect and support, but also as an opportunity. We need good, balanced planning systems. When regimes do not have that, often business does not thrive either, so planning needs that balance. It is there to facilitate and encourage, not for red tape. For this Government, it is not there to smother business in any way whatever. We want a lively planning system that is the servant of economic growth and development to make sure that we have coherence in the system and a level playing field, and that people have stability. That is part of what today is about: it is to give that coherence and stability, so that investors can have confidence that they know what the framework is, rather than haphazard, piecemeal support. I will engage with the noble Lord’s substantial points and look at them again, and make them a theme of how we look at the consultation.
The noble Earl, Lord Russell, as he always does, made very substantial points about the link to clean energy, and the need to support the renewables industries and recognise the myriad challenges that we face at the moment. I assure him that we will continue on that journey and have many discussions about this. This is one part of that journey, but it does not take us off that path, because we know that this is a longer-term issue, not an immediate solution, and we will not argue that it is or put it forward as such.
I will now try to address some of the other points that were made that I have not addressed yet. Some of your Lordships made similar points, so forgive me if I reference one noble Lord and not another. I will make sure that I respond in writing to anything that I have not picked up.
My noble friend Lord Khan made a very useful, interesting and important contribution to this debate, and raised some very significant and substantial points. The regulatory framework around waste is vital, and I will address the point about public opinion and how we engage the public on this. The UK already has a robust regulatory framework in place, governing the treatment, storage and disposal of intermediate and low-level reactive and other harmful waste. We are recognised as having that as well. EN-8 requires developers to demonstrate how waste from their fusion facilities will be managed safely and in accordance with all existing legal and regulatory requirements, the right construction, operation and decommissioning.
The Government will continue to consider how waste from fusion facilities will be managed as the sector develops, which links to the very important point that the noble Earl, Lord Russell, raised about engagement with local communities and the public more broadly. The broader public are, understandably, perhaps not terribly well versed in the details of fusion energy, so we have a responsibility as the Government to be clear about what fusion is and that it is different from fission, and that, even with both energies, we have robust safe regulatory regimes in place. It is important that Parliament questions that thoroughly—that is why this process is so important—but we need to find mechanisms to ensure that local communities get the benefit of that but understand that planning gives them that protection and confidence. I take that point seriously.
I also welcome the support from the noble Earl, Lord Russell, for enabling thermo-generating fusion plants to be considered as nationally significant infrastructure projects. I think that was also said by my noble friend Lord Khan.
The theme of regulator capacity came out quite significantly. Of course, we have looked at the committee report and will respond properly and in full. The Environment Agency and the Health and Safety Executive are heavily experienced in this sector. They have successfully regulated fusion facilities for decades, having, for example, regulated the JET facility at the UK Atomic Energy Authority in Oxfordshire. The Government will continue to fund these regulators to further build their fusion capability and provide access to subject experts at the UK Atomic Energy Authority. We will continue to support early engagement with developers and knowledge building across the planning and regulatory system and engage with investors to ensure they can have confidence that the skills and understanding capacity are there.
On fusion timelines and energy production, the noble Earl, Lord Russell, also mentioned that the timing of fusion energy will not impact short-term climate goals, which I recognise. It is unlikely to make material impact until the 2040s. However, the benefit of fusion energy development remains, with jobs, inward investment and the development of technologies, such as high temperature superconducting magnets, all adding to the UK’s economy well before the fusion energy does—notwithstanding the general points the noble Earl made about clean energy. In the longer term, as energy demand increases, as the noble Earl recognised, fusion will become a more invaluable source of baseload energy.
As my noble friend Lord Khan highlighted, non-proliferation and liabilities are vital issues that we are required to address. Although they are important, these are not strictly planning matters, which is why EN-8 does not directly address them. Outside of planning, the Government have committed in the fusion strategy to clarify third-party liabilities for fusion and believe that the conventional insurance market, rather than the nuclear market, is the most proportionate approach. The Government are engaging with the insurance market to understand the risks of fusion and develop bespoke insurance products. As part of this, the Government have also committed to identifying, by autumn 2027, a proportionate mechanism to ensure that decommissioning facilities can be met by fusion operators, rather than falling to the public.
The noble Earl, Lord Russell, raised questions about STEP. I am happy to confirm that STEP is progressing well, and we still expect government investment in fusion to support over 10,000 jobs by 2030. Alongside that, we have invested £50 million into skills development through the FOSTER programme. STEP, as well as demonstrating that fusion is commercially viable, acts as a demand signal to the wider fusion supply chain. Earlier this year, a number of contracts were placed with the STEP programme, including the construction partners and magnet engineering partners. We know that there is much to do. It is a very large project, but we are ambitious. As we have recognised, we have got a lot of status in this, and we have to remain ambitious.
I also take this opportunity to note, as the noble Earl, Lord Russell, set out, that the new strategic spatial energy plan is at the heart of the Government’s vision for our power system and will set out the blueprint for our future energy system. The UK’s fusion strategy commits to including fusion within that when fusion technology is sufficiently mature.
Moving on to water, I can confirm, and assure noble Lords, that water use is obviously an important planning consideration. Fusion energy infrastructure may use water for cooling, but this water is returned—just at a slightly higher temperature—and this is tightly controlled by environmental regulation. EN-8 will require applicants to set out their proposed cooling systems and apply the mitigation hierarchy to any significant environmental impacts. As I have said, obviously they are required to look at local impact considerations, including the social and economic impacts on local areas. As was said, it is vital that local communities understand that it is not just a government imposition and that they see the benefit.
I can also assure noble Lords that we have always been open to collaboration with the EU and other international partners, and that remains the case. We will continue to work on that.
I will address the points made by the noble Lord, Lord Moynihan, as best I can. I think we all recognise that fusion is a fundamentally different technology to nuclear fission, with a different hazard profile. A dedicated national policy statement is therefore the most appropriate way forward, because this is so significantly different and has to be understood by the public to be so. We need an appropriate regime to provide a clear and proportionate planning framework for fusion that supports commercialisation while maintaining robust protections for workers, the environment and communities—and gets that balance right. EN-8 offers a better balance for investors and communities.
The fusion sector itself called for this national policy statement, and the responses to the public consultation are supportive. Of course, we will look at those along with the comments raised today. We will address that point. The Planning Act was updated last year to streamline the consenting process, in July new guidance covering all key stages of the process was published, and the Planning Inspectorate is redesigning its services to support the implementation of these reforms. This will include providing bespoke and technical advice to applicants, including fusion developers, at the early stages of the consenting process. I hope that addresses some of the issues that were flagged.
The national policy statements will now be reviewed and either updated or withdrawn at least every five years to ensure that they remain appropriate and reflect the Government’s priorities and ambitions. As I said, the Government will reflect on the committee’s report on the wider planning framework and respond. I very much appreciate the range of comments that were made today and the recognition of the opportunities that this energy can provide. We hope to address your Lordships’ very significant points.
Fusion has the potential to contribute to our long-term energy security, support both near-term and long-term economic growth, create highly skilled jobs and—as has been said—strengthen the United Kingdom’s position in a technology of the future. We are already a world leader in this. Through our fusion strategy, we are taking the steps needed to translate that scientific and regulatory leadership into long-term economic, commercial and strategic advantage. We see EN-8 as an important part of that approach, building on our global leadership by ensuring that the planning framework in England and Wales is ready to support the safe and sustainable deployment of fusion energy in a way that supports innovation and investment. As part of that process, we also listen to communities, business and industry.
I thank noble Lords for their comments. If I have missed any specific issues, I will reply later. I am sure that we will continue to discuss some of those broader themes.
Earl Russell (LD)
I apologise for intervening. I really appreciate those responses, but my point about water and collocation was not just about the fusion plants themselves. Since the Government have collocation at the heart of their documents and plans, and that includes AI data centres and other industries with very water-intensive use, it would be good to have further consideration of other processes of desalinisation, if circumstances allow. This is not something that the Minister needs to respond to me on now, but I recognise that for fusion it would be abstraction of water and there are regulations around returning that, but with this abundant energy there comes possibilities for doing things that we have not done before. I leave that there.
Baroness Curran (Lab)
I thank the noble Earl for that point. I will not respond specifically on desalinisation now to make sure that I get a proper briefing on it first. It may cover a broader issue. I take the general point, however: we live in technologically changing times; there is a lot of excitement about that and huge opportunities, but it raises significant questions. We raised this on the Floor of the House and have seen some very significant debate around it internationally. It is a legitimate question, and one we must keep on the agenda. I will respond to the specific question that he raised.
House of Lords
Automobile Industry: ZEV Mandate
(1 day, 12 hours ago)
Lords ChamberRead Full debate Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Lord Woodley
To ask His Majesty’s Government what assessment they have made of the automobile industry’s concerns about Zero Emission Vehicle Mandate compliance targets and the potential for a loss of jobs.
Baroness in Waiting/Government Whip (Baroness Dacres of Lewisham) (Lab)
The automotive sector’s future is zero emissions. The Government are investing more than £7.5 billion to drive investments and safeguard jobs for the future. Tata is investing £4 billion in the UK gigafactory, with further investments from Stellantis, Nissan, Bentley, McLaren and others. We are taking a balanced approach to the transition. We have just closed a consultation reviewing the ZEV mandate. We are working with the devolved Governments to publish the outcome as soon as possible.
Lord Woodley (Lab)
I thank the Minister for that response, and I take the opportunity, on behalf of the House, to wish her a happy birthday today. How lucky she is to have her first Question come from me.
We are less than eight weeks from the end of the year, and March 2027 is the most important month in the car industry’s calendar for sales. Therefore, an urgent outcome from the ZEV mandate consultation is needed now. I hope the Government’s commitment to end sales of pure petrol and diesel cars by 2030 does not threaten production and jobs in the sector, helped by reducing the EV target to below the 80% currently on the table. Are the Government giving serious consideration to other technologies or fuels that should have a role in the future—for example, mild hybrid electric vehicles?
Baroness Dacres of Lewisham (Lab)
I thank my noble friend for his good wishes; I am feeling very lucky today. I also thank him for his years of dedicated service to and championing of the automotive industry. He is right that now is a critical time for the industry. That is why the Government are conducting a review of the ZEV mandate, which we aim to publish this year. We are working with industry to protect jobs and accelerate reindustrialisation. The future of our automotive sector is zero emissions, and the Government are committed to ensuring that those jobs come to the UK. The department has discussed mild hybrid vehicles in detail with manufacturers. Their future role will be part of the outcome of the review.
Lord Harper (Con)
My Lords, I am the Minister who set the ZEV targets in the first place. The noble Baroness will remember that under Rishi Sunak we moved the 2030 phase-out date for petrol and diesel cars to 2035. We thought that struck a better balance between our emission targets and—as the noble Lord, Lord Woodley, opposite said—protecting the automotive sector. This Government returned it to 2030. Is the Minister reflecting on whether that was the right decision? Also, the Government are rumoured to be adjusting the trajectory of how we get there. If they change the trajectory but not the end date, perhaps they are not being as honest with the public as they ought to be.
Baroness Dacres of Lewisham (Lab)
As I have mentioned, the Government are committed to reindustrialisation and the future is zero emissions. I am pleased to hear what the noble Lord mentioned on the moving of those targets under former Prime Minister Rishi Sunak. The review, which concluded a few weeks ago and will be published by the end of the year, is not hiding anything. That is why we are involving different parts of the automotive sector, including trade unions and other organisations and groups. With their help and support, and taking their views on board, we want to find out exactly what needs to be done to move in the right direction so that we get to those targets together.
Baroness Parminter (LD)
My Lords, available charging is vital for EV drivers, yet ChargeUK is warning that £1.7 billion of charging infrastructure is in jeopardy if the ZEV mandate is changed. What account are the Government taking of the needs of drivers and of further investment in clean, green driving as they consider watering down standards for car makers?
Baroness Dacres of Lewisham (Lab)
The Government are working hard to make sure that we are involving all parts of the automotive industry. The noble Baroness mentioned charging points: we are investing £600 million to support the rollout of charging infrastructure. That includes working with local governments, strategic authorities and our devolved nations to make sure that everybody is pulling in the right direction to ensure that we get the rollout in all parts of the country.
Baroness Shah (Lab)
My Lords, I wish my noble friend a happy birthday. EV charging capacity and support are available quite readily and easily for home owners. Can my noble friend explain how the Government are supporting renters and leaseholders in accessing EV charging?
Baroness Dacres of Lewisham (Lab)
I thank my noble friend because she raises an important issue of equity and fairness. We recognise that not all drivers have access to home charging. If you live in an apartment block and do not have a drive, you cannot just park outside your home and plug in. We are supporting local authorities with funding to install on-street parking. We want to make sure that it is accessible, which is why we are providing a further investment of £100 million over the next two years so that on-street public chargers are available and accessible. We are also looking into tariff porting to enable those who use public charging points to get the best and most affordable prices they can.
The Lord Bishop of Manchester
My Lords, the EV that I drive is one of the best vehicles I have ever driven, so I am a bit biased, but I want to ask about how EVs relate to the national grid. How can we ensure that, as there are more EVs on the road, the grid itself is able to cope, not simply the charging points? Have the Government considered how EVs might be used, when they are plugged in on somebody’s drive, to provide electricity back into the grid at peak periods? Perhaps drivers could be compensated for doing that.
Baroness Dacres of Lewisham (Lab)
It sounds like we are moving to solar panel cars. We are looking into the interesting points that the right reverend Prelate makes. We are making sure that we are providing charging points, which is why we are spending the £100 million to ensure that we get that breadth of service. I am sure noble Lords will recall that the Government have said the UK grid is an important part of our country’s infrastructure. It is important not only for EV charging but for homes, business and all industries that use electricity. We need to make sure that our future electricity grid is sustainable and working for all.
Baroness Hayman (CB)
My Lords, the Minister gave some impressive figures about investment, but is the noble Baroness, Lady Parminter, not correct in saying that uncertainty and inconsistency in government policy is the thing that really threatens investment across the automotive industry and in charging? Can the Minister give some reassurance that we will not be in a position of continuous and running consultation on dates that need to be clear to give some sense of direction?
Baroness Dacres of Lewisham (Lab)
I would like to reassure the noble Baroness that the work we are doing to make sure that we have direction, and are clear, gives that surety to the industry so that it knows we are sure-footed and can have that confidence. Without confidence, we are not going to get the investment into the country for the automotive industry or for other industries. That is why we are investing £7.5 billion to help businesses, drivers and manufacturers. That surety will help to bring that investment in.
Neighbourhood Health Services
(1 day, 12 hours ago)
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Lord Lansley
To ask His Majesty’s Government what assessment they have made of the effectiveness of neighbourhood health services in improving patient outcomes and reducing pressure on hospitals.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, the success of neighbourhood health will be measured against the national goals in the neighbourhood health framework, including improved health outcomes and better urgent and emergency care performance. Early local reported evidence from neighbourhood health approaches is encouraging, including reported reductions in emergency department use and in emergency admissions. The learning from the 43-place national neighbourhood health implementation programme is informing wider implementation, alongside an independent national evaluation commissioned through NIHR.
Lord Lansley (Con)
I am grateful for that response from the Minister. Can I ask about the example of heart valve disease, which affects one in 15 people over the age of 75? Of those, half go undiagnosed, which can lead to severe illness, hospitalisation, expensive treatment and, unfortunately, avoidable early mortality. We have digital diagnostics available in the community now which, in the hands of GPs and pharmacists, can enable much of that lack of diagnosis to be met and therefore preventive treatment to be successfully applied. What are the Government doing to enable the spread of diagnostics into the community, which is vital in that transition from hospital to community, from treatment to prevention and from analogue to digital?
Baroness Merron (Lab)
The noble Lord comes forward with a good example; digital diagnosis is a huge support in the improvements that we seek to make for patients, so we are investing in digital diagnostic transformation through NHS England’s diagnostics digital capability programme. That will ensure that networks have that core set of digital capabilities so that care can be improved in quality, safety and productivity. Those are all outcomes that we seek in neighbourhood healthcare.
Lord Hunt of Kings Heath (Lab)
My Lords, the noble Lord, Lord Lansley, has underpinned the importance of general practitioners. My noble friend will be aware that there is a big variation in the number of GPs per patient up and down the country. Can she say a little about what the Government are doing to deal with these under-doctored GP areas?
Baroness Merron (Lab)
It is true that general practice is a cornerstone of neighbourhood health. I am glad that people will now find it easier to access their doctor and have more choice in how and when they book appointments. With reference to digital access, I believe that will greatly help in accessibility to GPs, but we are improving capacity. We are employing more GPs; there are now 2,800 more fully qualified full-time equivalent GPs employed compared with July 2024. That is the highest number since 2015. We have also made changes to the GP contract so that PCNs and practices can hire more GPs and introduced a practice-level GP scheme. We are focusing our efforts on the more under-doctored areas that my noble friend describes.
Baroness Pidgeon (LD)
My Lords, we cannot expect neighbourhood health services to succeed without ensuring that resources shift from hospitals into the community, so can the Minister set out how much additional NHS funding will be directed towards primary and community care, and how this will be monitored?
Baroness Merron (Lab)
My Lords, joined-up care requires changes to funding flows in order that we can shift our resources. That is where the focus will be. I am glad that from next year we will be trialling for neighbourhoods and places payment mechanisms which mean that savings from reduced unplanned hospital care can go into increased investment in community services. That will not only provide extra funding in terms of neighbourhood health but drive change, which is what we are seeking. In addition, we announced in the Budget 250 neighbourhood health centres, with 120 delivered by 2030, and the first wave of 27 sites comes with a commitment of £50 million.
Baroness Finlay of Llandaff (CB)
My Lords, given that 97% of emergency departments feel that the current pressures on them are unsustainable through the winter, when will the Government establish seven-day services in the community so that bed occupancy rates can fall from their current 93.4% to 85%, which is much safer and will allow emergency departments to deal with really major emergencies and trauma?
Baroness Merron (Lab)
By expanding urgent community care, we will reduce avoidable emergency department attendances, hospital admissions and ambulance conveyances. That is why we are engaging not just an urgent community response but virtual ward services. I also point to the fact that we are supporting patients to book the most appropriate urgent care service through NHS 111 or the NHS app before attending emergency departments. There are a number of very good examples around the country of how people are doing that. Winter is going to be hugely challenging, and that is why, for example, we are putting in £190 million to help the NHS manage winter pressures and £140 million for new urgent care schemes.
Lord Kamall (Con)
My Lords, we all agree with the shift from hospital to community but, as we discussed on the Health Bill in Committee last night, we are still waiting for details of how it will all fit together. Can the Minister explain whether existing primary care providers, especially local GP practices, will be expected to rebrand as neighbourhood health centres and maybe offer some additional services, particularly secondary services, or will existing GP practices be told to physically move from their current premises into a neighbourhood health centre, and how will they be consulted?
Baroness Merron (Lab)
We are supporting ICBs, providers and everyone across the NHS to work together differently. That is the main point I want to get across. In March this year, we published Fit for the Future: Towards Population Health Delivery Models, which set out three new population-based contract types. They aim to bring various aspects of services into a single contract, and they will deliver a shift from what is currently fragmented, service-by-service commissioning to end-to-end pathways around the patient. That is where we need to get to. GPs are very much part of that, and we have involved them throughout.
Baroness Barker (LD)
My Lords, we cannot have neighbourhood health without having more community nurses, yet the majority of nurses are in the acute sector, so what are the Government doing to increase the number of community nurses?
Baroness Merron (Lab)
The noble Baroness will be aware that the Secretary of State has confirmed that the workforce plan will be published in the new year. It will take account of that point and the new way of working—how we build the NHS into the future around patients. The point that she makes is quite right. The workforce plan will set out how we will do that.
Lord Kakkar (CB)
My Lords, I draw attention to my declared interest as chairman of King’s Health Partners. Section 131 of the 2006 NHS Act requires NHS England to ensure that it has been properly professionally informed in determining how to provide diagnostic, preventive and treatment health services and public health services. It is proposed that this obligation will no longer apply to the Secretary of State when NHS England is abolished. How do His Majesty’s Government propose to ensure that proper, clinically informed information is available in determining the provision of local health services in the future?
Baroness Merron (Lab)
As I recall, we discussed last night in the Health Bill the establishment of a clinical council which could guide and advise the Secretary of State, who is, of course, ultimately responsible.
Baroness Ritchie of Downpatrick (Lab)
My Lords, community pharmacies are a key pillar of neighbourhood health services, providing treatment for small illnesses and as part of the vaccination programme. Can my noble friend the Minister outline what plans the Government may have to extend and expand the vaccination programme to community pharmacies?
Baroness Merron (Lab)
My noble friend is quite right that expanding the availability of NHS vaccinations through community pharmacy is very much the way forward. That is why in the last flu season we enabled the provision of flu vaccinations through pharmacists to two and three year-olds. It is why in this flu season we are extending that still further, to children and young people in clinical risk groups and for catch-up vaccinations. We have also piloted delivery of the RSV vaccination for older adults and pregnant women, which my noble friend has campaigned on very successfully.
Climate Change: Resilience
(1 day, 12 hours ago)
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Lord Lennie
To ask His Majesty’s Government what steps they are taking to further improve the UK’s resilience to the impact of climate change.
Lord in Waiting/Government Whip (Lord Katz) (Lab)
My Lords, the Climate Change Committee’s fourth independent assessment of UK climate change risk sets out a worsening picture of climate change impacts. We are committed to improving the nation’s resilience to climate change. That is why we have set out our intention to develop specific, measurable objectives and detailed delivery plans for the fourth national adaptation programme in 2028, in line with the two degrees centigrade of warming by 2050, as advised by the Climate Change Committee.
Lord Lennie (Lab)
I thank the Minister for that Answer. While the report did point to measurable and welcome improvements that have been made, there was an apparent absence of co-ordination across government departments, meaning that resilience is more patchy and less effective than it might otherwise be. Have the new Labour Government seized the initiative by ensuring reach across all departments in the face of the undeniable human-caused climate change that this country and the world now face?
Lord Katz (Lab)
My Lords, my noble friend is absolutely right in his analysis. The Government agree that the third national adaptation programme, which was published in 2023, was weak, particularly in its lack of clear targets and limited co-ordination across government departments. For the fourth iteration of the adaptation programme, we are putting in place a stronger framework, built on specific, measurable objectives, which will prepare this country for at least two degrees’ centigrade of warming by 2050. This Government are taking a more comprehensive, joined-up and strategic approach to climate adaptation, based on co-ordinating across systems and outcomes rather than simply addressing isolated risks. We have robust governance in place to ensure that departments are fully engaged at all levels to deliver on climate adaptation.
Baroness Grender (LD)
My Lords, does the Minister agree that a year of drought, wildfire and now flood warnings shows that resilience cannot be left to individual sectors, including outside government? Will the Government commit to a national wildfire strategy, as the farmers are urging, and confirm that the review of critical infrastructure resilience standards that is due by the end of the year will include water supply?
Lord Katz (Lab)
The noble Baroness is of course correct in emphasising the joined-up nature of the various threats to our country’s resilience from climate change, whether it is drought, as discussed yesterday, or the problems of flooding, with extremely variable weather systems expanding the problem. On wildfires, she will be aware that the Prime Minister called a wildfire summit at the end of last month, which brought together all the necessary stakeholders to seriously consider how we can improve our resilience to them. She is right in saying that the number of wildfires has increased. Over the summer, there were a record 1,300 wildfire incidents in England and Wales. It is a serious problem. Our focus is indeed on building resilience through better prevention, preparedness, response and strategy, which can help protect communities, nature and critical infrastructure from the growing threat of wildfires.
Lord Deben (Con)
Would the Minister accept that the real problem in the question of wildfires is that our firefighters do not have proper equipment? In my former constituency, they had to choose between facing the dangers not properly clad or having heat problems themselves. What are the Government doing urgently, as we are likely to have constant wildfires as a result of climate change?
Lord Katz (Lab)
I am not entirely sure it would be fair to say what the noble Lord was implying. It is the case that the Government, from the Prime Minister downwards, take this issue of wildfires very seriously. In terms of response, firefighters on the front line will be boosted by additional specialist wildfire teams and state-of-the-art wildfire-specific personal protective equipment, backed up by £45 million. Also, the RAF’s Chinook helicopters and A400M aircraft will be equipped so that they can join in the fight against wildfires and be ready when requested to help crews across the UK battle blazes where they find them.
Baroness Brown of Cambridge (CB)
My Lords, I declare my interest as chair of the Adaptation Committee of the Climate Change Committee. It is good to hear of the Government’s commitment to more specific targets for addressing adaptation, but, in the light of their recent announcement that there will be no more changes to building regulations, will the Minister tell us how the Government will ensure that new homes are going to be fit for the future in terms of resilience to flooding, resistance to overheating and, of course, the outstanding water efficiency we need to address the increasing incidence of drought conditions in this country?
Lord Katz (Lab)
I thank the noble Baroness for her question and, more importantly, for her work in this area and her long-term commitment to ensuring that we have stronger resilience. To be clear, with regard to the ongoing work of the Government in reforming planning guidance and promoting the building of more houses—particularly social houses—it is absolutely right that we set the right framework for a multitude of resilience factors, whether it is around energy and water conservation or resilience to flood. That is why the Government continue to work with our industry stakeholders, particularly the building sector, to make sure we have the skills, the materials and the know-how so that we have resilient properties in the future.
Baroness Goldie (Con)
Yesterday, the Minister was answering questions on the reservoir water levels. Linking that to this question and UK resilience, I ask the Minister: what are the current meteorological predictions for rainfall in southern England over the next six months? And what is plan B if the rain does not fall?
Lord Katz (Lab)
I am tempted to say that we should all do a dance, but that would be facetious. I am afraid that I do not have the exact data that the noble Baroness requested in front of me, so I will be more than happy to write to her in reply. This is important. As we discussed yesterday on the question the noble Baroness referred to about drought and water levels, we take both a long and a short-term approach with the water companies. We make sure they are investing, and we have this record level of £104 billion in investment to provide greater reservoir capacity with nine new reservoirs. They also spend their time, money and attention on fixing the problems of water leakage and pipe leakage now. It is so important that we start at the source to conserve water if, as the noble Baroness says, putting issues such as El Niño to one side, we do not have the water fall that we are expecting.
Baroness O’Grady of Upper Holloway (Lab)
My Lords, can my noble friend the Minister reassure me that maximum working temperature is under active consideration? That would be easy for employers and workers to understand, it would drive workplace adaptation and resilience and it would make working temperatures bearable for working people.
Lord Katz (Lab)
My noble friend knows that we have an ongoing dialogue about these sorts of regulations with not only her but trade unions and industry representatives. It is important when we think about climate change adaptation that we think not just about the hard built environment and infrastructure but about the way that we as individuals respond to it, whether that is about safe working temperatures or, indeed, the way that we conserve precious resources such as water.
Baroness Jones of Moulsecoomb (GP)
My Lords, with the Government backtracking on EV targets, heat pumps, warm homes, no oil and drilling—for example, Jackdaw—and now proposing more airport expansion, which climate promises are the Government going to stick to?
Lord Katz (Lab)
Where do I start, my Lords? In relation to the reference made by the noble Baroness to Jackdaw and so on, I would point out that Rosebank is in a live quasi-judicial regulatory process that is still to be decided on. We are very clear that Jackdaw was not a new licence; we are not breaking any promises there. More widely, I could go through quite a long list, but will spare noble Lords. The measures that we are taking to adapt to climate change include investing £300 million in natural flood management up to 2035, using the farming road map to put long-term climate resilience at the heart of farming, and £30 million for coastal adaptation pilots to help coastal communities adapt. I will stop there, but I hope that the noble Baroness gets the drift.
Lord Ashcombe (Con)
My Lords, it is clear to our Benches that land management offers significant scope for both reducing and mitigating the impact of climate change. Re-wetting drained land, decanalising rivers, riparian planting and peatland restoration all improve drought resilience, reduce peak flow events in floods and improve water quality. With the right financial incentives, these also improve our food security by underpinning farm businesses. What are the Government doing to incentivise these actions across all our river catchments?
Lord Katz (Lab)
I very much share the noble Lord’s ambition in relation to using nature and our farmers to help us make progress on climate adaptation and resilience. I think it is fair to point to the 25-year farming road map that we have produced. That is a long-term vision for the farming sector, to make it not only a profitable sector but one that can lead on climate change resilience, making sure that we have a sustainable and resilient agriculture sector. We are using environmental land management schemes to support ambitious and evidence-based delivery towards resilient landscapes in the land-use framework; for example, committing to assess climate change impacts on the land and building adaptation into ELM schemes.
Interest Rates
(1 day, 12 hours ago)
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Baroness Neville-Rolfe
To ask His Majesty’s Government what assessment they have made of the recent rise in interest rates and the effect of this on economic growth, inflation and on their borrowing costs.
The Parliamentary Secretary, HM Treasury (Lord Pitt-Watson) (Lab)
This is an important Question. Last week, the independent Monetary Policy Committee increased the Bank rate in response to the high inflation that was driven by the conflict in the Middle East. I should point out, however, that the Office for Budget Responsibility noted that higher rates would weigh on activity and increased borrowing costs, contributing, in the projection that we saw with the Budget, to the slowing of growth next year. Of course, higher rates should reduce inflationary pressure, which is itself essential for longer-term growth.
Baroness Neville-Rolfe (Con)
What does the Minister say to the millions of people whose mortgages will have become more expensive as a result of this rise and, more than likely, further rises in UK interest rates?
Lord Pitt-Watson (Lab)
It is a difficult question. We are living in uncertain times and things are difficult for people on mortgages. It will be different depending on the type of mortgage you have: is it a fixed-rate mortgage or a variable-rate mortgage? If it is a fixed-rate mortgage, you might be very pleased, when your mortgage is renewed, that we are getting medium-term inflation down, but I understand that it is more difficult for interest-only mortgages. I finish by saying that the Bank rate in May 2022 was 1%, but by August 2023 it was 5.25%—a 4.25 percentage point increase. I am sure that people who were on the Front Bench in those days will also be able to help answer the noble Baroness’s question.
Lord Macpherson of Earl’s Court (CB)
My Lords, I declare my interest as the chairman of a small bank. Does the Minister agree that it is the market as much as the Bank of England which determines the interest rates which people and businesses pay? Does he therefore agree that the 40 basis points reduction in 10-year gilt yields is probably more significant over the last month than the 25 basis point increase in the Bank rate? Can he reaffirm the Government’s commitment to the fiscal rules in particular and fiscal credibility in general?
Lord Pitt-Watson (Lab)
The answer is yes to those questions. How it works will be complicated for different people, depending on the terms they got from the banks. We have an absolute commitment to the fiscal rules.
Baroness Kramer (LD)
My Lords, the OBR has forecast that, by 2031, the Government’s payment on annual debt interest will rise to a staggering £160 billion. Part of the reason for that very high number is that the Government remain, through the Treasury and the Debt Management Office, absolutely addicted to issuing index-linked bonds, which pay not a fixed coupon but a coupon based on the level of inflation and, even worse, on RPI. No other G7 country does this general idiocy and the pension industry, which once benefited from such bonds, no longer uses them. Can the Minister please explain why the Treasury and the Debt Management Office, which is part of the Treasury, continue with this addiction?
Lord Pitt-Watson (Lab)
I answered a similar question in the past, maybe as a Written Question, and noted that the issuance of index-linked bonds was indeed falling, but I would be more than happy to write further to the noble Baroness if she thought that was critical.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, since interest rates under John Major were at 15% and under Margaret Thatcher at 17%, are the Tories the best people to advise the Government on this matter?
Lord Pitt-Watson (Lab)
How can I answer that? You may say that; I couldn’t possibly comment. I made the point that the Bank rate rose between May 2022 and August 2023 by 4.25 percentage points. If I am doing my arithmetic right, that is 17 times what we have seen in the past week.
Lord Redwood (Con)
Why was the Bank of England recently given permission by the Chancellor not to sell £120 billion of long bonds that it was planning to sell and why is it now seeking permission to sell all the remaining bonds to the Treasury?
Lord Pitt-Watson (Lab)
This was the decision of the independent Bank of England, just as the decision on the Bank rate is an independent decision of the Bank of England. I am not sure I can go beyond that in commenting.
Lord Londesborough (CB)
My Lords, put bluntly, for our debt to decline meaningfully, our GDP growth rates need to exceed the interest rates we pay on our borrowing. Does the Minister agree that this requires an explicit and bold growth strategy? If so, where did this feature in last month’s Budget?
Lord Pitt-Watson (Lab)
I go to the view of Kristalina Georgieva, the managing director of the IMF, and quote her on what she thinks about the UK and its management of its debt:
“The UK is actually one country where action to reduce debt and deficit has been taken decisively and we see the UK in that sense enjoying a bit of a better growth prospect”.
Lord Sikka (Lab)
My Lords, hiking the interest rate is actually a wrong policy. The current level of inflation is caused by profiteering and supply chain constraints, not by excessive cash sloshing around in households. Some 25.3 million people already live below the minimum income standard. The higher interest rate will force households, businesses and government to hand over wealth to banks, boosting their profits without any additional investment. The right policy should be to curb profiteering. Does the Minister agree? If so, what will he do?
Lord Pitt-Watson (Lab)
The decision on interest rates is for the independent Monetary Policy Committee, which is part of the Bank of England. If the noble Lord would like to write to it, or write to it through me, I would be very happy to pass his comments on.
Lord Clarke of Nottingham (Con)
Will the Government not accept that they face a serious debt crisis, which, admittedly, they inherited? We now have public debt at almost 100% of GDP—more than 90%—and a colossal amount of the tax that the Government collect has to be paid on an ever-mounting level of interest. Will the Government stop saying that they will stick to the fiscal rules, which means that they will stop borrowing in a few years’ time, and take some urgent action to win back the confidence of the market by chasing obvious targets, such as cutting the growth of the welfare budget and scrapping the triple lock to start with?
Lord Pitt-Watson (Lab)
I agree with many of the noble Lord’s comments. Our debt is way too high and the interest we are paying on the burden of that is very serious. How we go about righting that—as he says, there is a long history, and it is unhelpful to go into it—is a matter of judgment and balance, and it needs to be done over time. I go back to the comments of the chief economist of the IMF: of all the countries it is reviewing, she picks the UK out as the one that, basically, stands out. I hear that there may be some moves a little this way and some a little that way, but I hope that the House will acknowledge the seriousness with which this issue is being treated.
Baroness Altmann (Non-Afl)
My Lords, what analysis have the Government made of the impact of monetary policy on the fiscal deficit and whether there has been too much conflict between the Bank of England’s policy, which is anti-growth by pushing up interest rates, and the requirements of the economy to boost growth?
Lord Pitt-Watson (Lab)
This is an interesting economic argument, but the institutional structure in the UK is that we have an independent Bank of England. That is seen as a strength for the UK in controlling inflation and those other economic effects, which in turn underpins growth for the future. I think that, in general, there is cross-party agreement that that is a good way of doing things.
Standing Orders (Private Business)
The Senior Deputy Speaker
That Private Business Standing Order 70(1) be dispensed with to allow the examination of petitions for Private Bills, copies of which Bills have been deposited in accordance with the provisions of Standing Order 38, to commence on 17 December 2026.
Courts and Tribunals Bill
Tuesday 10th November 2026
(1 day, 12 hours ago)
Lords ChamberRead Full debate Courts and Tribunals Bill 2024-26 View all Courts and Tribunals Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 57-I(b) Amendments for Committee (Supplementary to the Marshalled List) - (10 Nov 2026)
Baroness Chakrabarti
“(4A) In section 19 (decision as to allocation), after subsection (3), insert—“(3A) If the accused would likely receive a sentence of imprisonment of more than 12 months but not more than three years, is of good character, and has not previously been convicted of an offence, the court must give greater weight to the representations made by the accused under subsection (2)(b) above.””Member’s explanatory statement
This amendment seeks to ensure that defendants of good character, without previous convictions, have their representations as to allocation given greater weight, so they are not denied the Crown Court trial a defendant of poorer character with previous convictions would receive.
Baroness Chakrabarti (CB)
My Lords, after such a thoughtful Second Reading debate, as I hope noble Lords agree, and a great deal of engagement between Ministers and noble Lords between then and now, I have the privilege of welcoming the Committee to their places. At Second Reading, many of us were grateful to the Government for some considerable movement since the first iteration of the Bill, but, equally, many of us were concerned that somewhat more movement is required if crucial clauses of the Bill are to inspire the public trust and confidence that are so important for the criminal justice system in this jurisdiction.
The context is, of course, a backlog that Governments of both stripes have struggled with and that many of us on all sides of the House principally attribute to decades of underinvestment. The context is an understanding that the right to jury trial has not been and is not absolute, and that many cases—the bulk of criminal cases—are not dealt with in the Crown Court. However, the context is also that the right to elect for a jury trial, and to have jury trials in many serious cases, is important to many people in our country. Both truths can hold at the same time. That is why this Committee is so incredibly important, and I come to it with slight anxiety, and occasionally a heavy heart, given the responsibility that we have.
Alongside the point about basic legitimacy, trust and confidence, many noble Lords have expressed concerns about exposing judges, and indeed magistrates, to opprobrium in high-profile serious cases, and about the important safeguard that juries provide against the abuse of power in our current system. The first group of amendments, on mode of trial, is therefore incredibly important. It addresses the removal of the right to elect for jury trial in “either way” cases. It is unsurprising that the group contains not one but two clause stand part debates, and it is equally unsurprising that a rather exquisite quartet of noble and learned Lords will be exploring allocation guidelines, given that magistrates are to be given a new and awesome responsibility in “either way” cases.
I have Amendments 1 and 3 in this group, supported by the noble Viscount, Lord Hailsham, and my noble friend Lady Goudie, who apologises for not being able to be here because of sad and urgent matters elsewhere. Taking the amendments in reverse order, Amendment 3 seeks to provide a right of appeal against a mode of trial decision. The noble Baroness, Lady Hamwee, has tabled Amendment 7, which takes a more detailed approach to providing such a right of appeal against a magistrate’s decision that a case will not be heard in the Crown Court, given the proposed end of the right of election. I think both of our amendments, if I may say this to the noble Baroness, Lady Hamwee, follow the principle that important first-instance judicial decisions ought to be subject to appeal.
Amendment 1, which I share with the noble Viscount, Lord Hailsham, deals with an important and serious but unintended consequence of abolishing the right of election for jury trial. It relates, in particular, to persons of good character. A consequence of abolishing the right of election to jury trial, and of magistrates being more likely to suggest jury trial, as will be their prerogative now—they are more likely to do that if they feel that their own sentencing powers are inadequate and that the likely sentence in a case would be a longer one—is that a person with many previous convictions who would face perhaps a longer sentence for a particular offence is more likely to be allowed a jury trial than a person of hitherto untainted character with no previous convictions.
Take two defendants facing the same offence—one of good character and the other with many previous convictions, perhaps serious ones and similar ones. The Bill in its current form would, in this regard, favour the person of bad character with many previous convictions and not the person of good character. That, I suggest to the Committee, must be an unintended, perverse consequence of the regime as currently drafted in the Bill. That cannot be right and fair. There are differing consequences for people of previous good character from people with many previous convictions—even though the latter may have a longer sentence, the consequences for their life, reputation and so on are perhaps different.
Amendment 1 proposes not a veto for the person of previous good character but a requirement that it should at least be taken into account. Under the circumstances, it is a fairly modest request of the Government. This fairly modest amendment, which I share with the noble Viscount, Lord Hailsham, suggests that, in such a scenario, the magistrates’ court should give particular weight to submissions by a defendant of hitherto untainted character and no previous convictions, and that that should go into the mix when considering whether they might be allowed a jury trial. That has, as noble Lords discussed at Second Reading, been our way for such a long time, and one that was cherished by so many of our people who have trust and confidence in that system.
As we have discussed, so many ordinary people—not lawyers, judges or otherwise professional people—have greater trust in juries than they do in not just other parts of the criminal justice system but other parts of our institutional democracy. That is why this group is so very important. I beg to move.
Lord Hain (Lab)
Can I ask my noble friend to confirm that it was a jury that convicted Russell Brand? The right to jury trial is fundamental and many of the points she is making are extremely telling.
Baroness Chakrabarti (Lab)
I am grateful to my noble friend for that rhetorical question, to which I feel the Committee knows the answer. I understand all the points about the backlog, the costs and our concern to speed up justice, which victims are crying out for, but, at the same time, a vindication for someone wrongfully accused or for victims who have been denied that vindication of their rights means that juries really matter to ordinary people in this country. I know that noble Lords in this Committee understand that, because a brief conversation with any number of their friends, neighbours and family members who have nothing to do with the legal profession, or perhaps any other profession, will indicate as much.
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.
Baroness Jones of Moulsecoomb (GP)
My Lords, I said at Second Reading that I was going to oppose a lot of the clauses in the Bill, and I will be standing up several times today to do exactly that. The first clause I oppose is Clause 1, and I find myself signing up to do so with some unusual colleagues—which is obviously a pleasure. I am against this clause because the Government, in order to make the court system easier to manage, are taking away an important protection from people accused of criminal offences. If we cannot get rid of the first clause, I support the other amendments in this group.
The right to elect trial by jury is an important safeguard. This clause removes that choice and hands the decision to magistrates. I have great respect for magistrates—I know quite a few and I appreciate the work they do—but that is not the issue here. The issue is whether a defendant should lose the choice of having their case heard by a jury. The Government argue that this is necessary to tackle the Crown Court backlog, but as we have already heard, removing rights is not a substitute for properly resourcing our courts. It is not going to work; that is fairly obvious from the debates we have had already.
The Bar Council strongly opposes this provision. It warns that the changes will result in more serious and complex cases being heard in magistrates’ courts, which is fairly obvious. But that concern becomes even greater when we consider Clause 5, which I will also be opposing and which increases magistrates’ sentencing powers. Taken together, these provisions mean that more serious cases can be dealt with in magistrates’ courts, with greater powers to deprive defendants of their liberty.
There is also the equality consideration, which I am disappointed that the Government have refused to address so far. Their own equality statement acknowledges that Black defendants, older defendants and women are more likely to elect for a Crown Court trial. In 2022, 26% of Black defendants elected for a Crown Court trial, compared with 15% of white defendants. The Lammy Review found that many people from ethnic-minority backgrounds had
“more confidence in the fairness of juries than … in the fairness of Magistrates’ Courts”.
So removing this choice risks further undermining confidence in a justice system where trust is already quite fragile.
There are consequences for witnesses and complainants too. Section 28 special measures, which allow eligible witnesses to have their cross-examination pre-recorded, is not available in magistrates’ courts. This is particularly important for children, people with certain disabilities, and complainants of sexual offences. With the current spotlight in our country on sexual offences and the fact that women find it incredibly difficult to get justice, this is quite an important component.
The Government acknowledge that there is insufficient data to establish how many vulnerable witnesses could be affected. How can we press ahead with something when we do not even have the data to see whether it is going to be good or bad? I do not understand. The organisation Justice also supports removing the clause.
A fair trial should not depend on whether the Government want to move one backlog to another. The right to a jury trial should not be treated as expendable and Greens such as me will always defend it.
Baroness Bi (Lab)
My Lords, I declare my interest as a partner of Norton Rose Fulbright, a law firm. I start by apologising for missing Second Reading as I was travelling overseas on firm business that could not be avoided. I have, however, read the debate in full in Hansard. I was struck particularly by the important contribution of the noble and learned Lord, Lord Leveson, with its cri de coeur at the end of
“if not this, then what? If not now, then when?”.—[Official Report, 27/10/26; col. 1099.]
As a corporate lawyer with no expertise in criminal law, unlike many noble Lords who will contribute today and have done in the past, I want to make the point that the reputation of our criminal courts is important to all of us, as it drives the reputation of our legal system as a whole, and that forms the basis of our success as a leading economy. That reputation is now suffering, and in some cases international clients are choosing to take their commercial cases to our competitor jurisdictions, such as Singapore and Dubai, where they believe they will receive faster judgments. It is therefore not just a matter of justice that we address the crisis in our courts but an economic imperative.
It was generally agreed by your Lordships at Second Reading that the courts are in crisis and that we need not only more money and efficiency but a principled, structural reform of how trials are run. My concern about the amendments proposed to Clause 1 is that they are based on the assumption that the better form of justice is trial by jury and that requiring a case to be heard in the magistrates’ court by removing the right to elect is a denial of a fundamental right.
This assumption is made even though only a small minority of criminal cases are heard by a jury and over 90% of criminal cases are dealt with entirely in the magistrates’ courts. The number of “each way” offences comprised 18% of the cases that were before the magistrates in July 2026, only a minority of which elected for trial by jury. Are we really saying that those whose lives are permanently affected by a criminal conviction, irrespective of the length of the sentence handed down by the magistrates’ court, have had an inferior form of justice, and the only trial worthy of the name has to involve a jury?
Am I the only person to be shocked to read in the impact assessment that the size of the magistracy reduced from over 29,000 magistrates in 2010 to 12,500 by 2022? That was under successive Governments claiming to be tough on law and order. It is not a surprise that we have the backlogs that we are talking about. Very importantly, the Government and the Lady Chief Justice are seeking to widen the diversity of the magistracy and the judiciary, because it is vital that defendants believe they have been judged by their peers, which has been the main argument for a jury trial until now. I take seriously the comment that has just been made about Black and other minority defendants, and I am glad that the Government will commission an independent review of the changes to ensure that they do not disadvantage any groups in particular.
This Bill, including Clause 1, is only one of a number of measures that are needed to ensure that our legal system remains the gold standard internationally, on which our reputation as a good place to invest and do business rests. The Government are bringing into place not just the changes that this Bill represents but a broad programme of hiring further magistrates, judges and court officials to make sure that courts are properly staffed and able to deal with the broad range of the backlog. They are also increasing the number of court days and ensuring that criminal legal aid in the magistrates’ court is increased, which is important to make sure that defendants are fairly treated. For that reason, I reject the amendments suggested to Clause 1, and I hope the Bill continues as it is currently drafted.
Baroness Mallalieu (Lab)
My Lords, I agree with every word that the noble Viscount, Lord Hailsham, uttered earlier. I, too, dislike Clause 1. Like him, if it is pushed unamended, I shall have great difficulty in supporting it later.
I have to take issue with the noble Baroness who has just spoken, because there is a big difference when you are facing a trial as to which you would opt for. Which one of us would opt for the magistrates rather than a jury trial? It is a different standard of justice. I say that without in any way being insulting to magistrates, who are now fully trained—much more than they were in the days when I was still practising, about 20 years ago. They are much better equipped to deal with matters, but the reality is that a Crown Court trial usually has a senior lawyer looking at the file. They may well see the flaws, which may well change the trial’s whole course and indeed lead it to be dropped. I remember—and I do not believe it has changed in view of the number of people on the waiting list at the moment in the magistrates’ court, which is 380,000—CPS representatives doing the prosecuting coming in carrying a huge number of files of different cases, without the time to devote to looking at each one properly. That is what happens.
Also, when appeals from trials in the magistrates’ court go to the Crown Court—there are not a great many of them, so it will not save a lot of time—56% succeed. Something has gone wrong. It may be that the law was not properly presented, or that there is some further evidence, or that it was just wrong on the facts, but that is an indication that things go wrong. They often go wrong because people do not have legal aid and are representing themselves. Sometimes—I say it of my own former profession—they are represented by very junior people, as is often the case in the magistrates’ court, or are not represented at all because no criminal solicitor will take the case on.
I accept that there has to be a look at which cases are entitled to go to jury trial. Some minor matters clog up the courts and could be dealt with in other ways, and I know that comes into later parts of the Bill. We all want to see a solution to this dreadful waiting time which means that people are waiting in custody for a considerable time or are waiting to give evidence in trials. That has to be tackled, but I cannot see the provisions in Clause 1 having the desired effect of reducing them.
If any one of us would choose a jury trial, so would, I suspect, the majority of defendants. To take away a right of appeal about allocation seems a denial of justice. I do not believe that that is something that my Government, the Government who in 1945 brought in the legal aid system, want to see. I hope the Minister will look again at this, because, frankly, it is not right and it is not going to do the job. There are other ways that have been mentioned already, and there are probably a great deal more that we can come up with which will help to cut that dreadful backlog.
Lord Macdonald of River Glaven (CB)
My Lords, the backlogs are now so great, and the delays in trials taking place so vast, that we are talking about cases being listed two or three years in the future, which is a hopeless situation for witnesses, victims, complainants and, of course, defendants. Some sort of structural change is necessary, but the question is what form it should take.
As I made clear at Second Reading, I do not have a difficulty with courts making the decision about where cases should be allocated, rather than defendants. In fact, granting defendants that right is comparatively unusual across the common-law world and does not even exist universally across the United Kingdom. It is not the system that pertains in Scotland, and I imagine your Lordships would all agree that Scotland has a civilised, decent and fair legal system—that is certainly my view, as someone whose parents were natives of Scotland.
My concern, however, as I expressed at Second Reading, is whether the magistrates’ courts can cope with the new levels of work that they are going to receive. I entirely agree with the noble and learned Lord, Lord Leveson of Liverpool, that it is not simply a lack of funding or the Covid pandemic that have caused the backlogs—although lack of funding has been a very significant contributor, and Governments of all persuasions have deliberately starved the justice system of cash because it was an easy target, and it is obviously true that Covid played its part. As the noble and learned Lord said, the increasing complexity of criminal trials and the bulk of evidence—CCTV evidence, DNA evidence, scientific evidence and all the rest of it—have made trials longer and contributed to the backlog.
The obvious flaw in that argument, however, when it comes to the Government’s proposed reform, is this: why would those cases be any less complicated in the magistrates’ court? How is the magistrates’ court to cope with the increasing complexity? There is no doubt at all that most of our magistrates’ courts in greater urban areas are presently in a state of chaos: the backlogs are enormous and growing; we are failing to recruit sufficient magistrates; and we do not have enough district judges. Unless we significantly increase the number of magistrates and district judges, magistrates’ courts will simply be unable to cope with the increased volume and complexity of work that is destined for those courts because of this legislation. The Government are going to have to devote significant funding to this change if it is to work.
All these issues make even more important Amendment 2, in the names of the noble and learned Lord, Lord Thomas, and other noble Lords, on the question of allocation. It is going to be critical that magistrates’ courts have some allocation guidelines in this area. If not, there is an obvious risk—I speak as someone who knows a number of magistrates—that magistrates simply continue to send everything up to the Crown Court because their courts cannot cope. That will happen if there is not some form of allocation and increased funding for the magistrates’ courts. I do not say any of this with great pleasure. Funding has played a major part in the situation in which we find ourselves, and the lack of funding on the part of many Governments has been reprehensible.
Finally, I cannot support Amendment 1. Why should people of good character have more rights in our justice system than people of bad character? I practised in the criminal courts regularly for almost 40 years. I do not any more; I last did a trial in 2012. Why should defendants of bad character have fewer rights when it comes to allocation? I say this frankly and with due respect to them, but most of the defendants who I represented over my 30 or 40 years at the criminal Bar were people of bad character. I never felt that they should have fewer rights in the criminal justice system than people of good character, but that is what Amendment 1 proposes, and I am surprised that it does so. Allocation should apply according to fair and rational guidelines, regardless of the character of the individual who is being allocated.
Baroness Levitt (Lab)
My Lords, I speak in support of Clause 1. At its heart, this clause raises a simple question: do we trust magistrates? Throughout my professional life, I have regarded magistrates as one of the great strengths of our criminal justice system. Every single day, magistrates determine guilt. They pass sentence and make decisions that affect liberty, livelihoods and futures. If they can be trusted to do that, why can they not be trusted to decide where a case should be tried? That is the question I have yet to hear satisfactorily answered by the opponents of Clause 1.
Some argue that magistrates may underestimate the seriousness of a case. My experience suggests the opposite; magistrates frequently err on the side of caution. Indeed, many cases sent to the Crown Court ultimately result in sentences that magistrates themselves could have imposed. If there is a tendency, it broadly appears to be towards caution, not recklessness. With respect to my noble friend Lady Chakrabarti—with whom I agree on almost everything, but not on this occasion—I am slightly mystified by the suggestion that magistrates are going to keep the person of good character in a magistrates’ court but send a serial shoplifter to the Crown Court. My instinct is that rather the opposite is likely to happen. I could not agree more with the noble Lord, Lord Macdonald, that all those who appear before the courts must be treated in exactly the same way.
I am a strong supporter of jury trial; it is one of the strengths of our constitution. However, it does not follow that every case capable of being tried by a jury must be tried by a jury. If that were the principle, the vast majority of criminal cases presently heard by magistrates would need to be transferred back to the Crown Court, and nobody is sensibly arguing for that. Magistrates’ courts do not provide some lesser form of justice, and lay magistrates, like jurors, are members of the public performing a public duty; both reflect the principle that justice should not be administered exclusively by professionals.
As has been frequently said at Second Reading and during this debate, more than 90% of criminal cases are dealt with in the magistrates’ court, and without lay magistrates the system simply would not function. Throughout my career, I have seen magistrates approach difficult cases conscientiously, thoughtfully and fairly. They have earned the confidence of judges, practitioners and the communities which they serve, and they have earned the confidence of Parliament as well. Clause 1 does not ask the magistrates to undertake some radical new judicial function. It asks Parliament to trust them with a decision that is modest when compared with the responsibilities they already discharge every day. The real question is not whether magistrates are ready for this responsibility; it is whether we are prepared to recognise the responsibility they already shoulder.
Lord Young of Acton (Con)
My Lords, in supporting Amendment 5, in my name, I declare my interest as the director of the Free Speech Union.
I agree with all those noble Lords who have spoken already and expressed reservations about Clause 1, but, if we are going to have to live with Clause 1, I want to suggest ways in which it could be improved by exempting certain classes of offences from it. My amendment would exempt from Clause 1 the removal of the right to trial by jury for those accused of speech offences that are currently triable either way.
The argument for doing this is that whether someone is guilty of one of these offences depends on where the line is drawn, and that question hinges on the meaning of words such as insulting, threatening, abusive, harassment, alarm, distress and grossly offensive, or whether something has a tendency to deprave and corrupt. There are often no hard and fast rules when it comes to understanding or interpreting the meaning of those words, and no unambiguous statutes or precedents that a judge can refer to. Instead, it comes down to a moral judgment about what is and is not socially acceptable. When it comes to making those kinds of decisions, that is properly a matter for a jury, not a judge.
That is not just my view. In Brutus v Cozens, a case heard before the House of Lords in 1973, the Lords held that the meaning of an ordinary word such as “insulting” is not a question of law. It is a question about ordinary language and ordinary standards and where the line should be drawn, and such matters are best left to juries composed of ordinary people, not experts in law.
There is another reason for maintaining the “either way” status of the particular speech offences listed in my amendment. According to research carried out by the Free Speech Union, people charged with speech offences are twice as likely to be acquitted in the Crown Court as they are in the magistrates’ court. That is to say, juries are more tolerant when it comes to what speech is or is not socially acceptable.
I will give an example. In 2024, shortly after the Southport attack, an ex-Royal Marine called Jamie Michael, who was under the false impression that the attack had been carried out by an undocumented migrant, put out a video on Facebook urging his followers to protest outside the offices of elected politicians against illegal immigration. He did not use any racial epithets and he made a point of stressing that such protests should be peaceful. A complaint was made to the police by a member of staff of a Member of the Welsh Parliament, and he was charged with stirring up racial hatred, the maximum sentence for which is seven years in prison. The Free Speech Union found him a good solicitor and barrister, he pleaded not guilty and it took a jury a grand total of 17 minutes to acquit him. Would a magistrate have acquitted him in the same way? I doubt it.
When it comes to our fundamental right to freedom of speech, which is, after all, the most important right, because without it we would not be able to defend any of the others, I urge noble Lords to continue to entrust it to 12 ordinary Britons, who have proven to be a reliable guide to where to draw the line, as they did in the Lady Chatterley trial and have done so often since.
Baroness Hamwee (LD)
One answer to the noble Lord is that even good cases sometimes make bad law.
I should apologise, like the noble Viscount and the noble Baroness, that I could not be here for Second Reading. I was able to watch it. My explanation or personal reference does not follow theirs, because my legal practice is very different from both of theirs. I do not know what the collective noun is for a group of those who encompass nobility, learning and a thoughtful approach. If they know what it is, perhaps they can tell me, so I can use it at a later stage. It is really helpful to have their contribution, not just on this issue but later in the Bill. The notion of guidelines is something we must rightly explore.
I am not proprietorial about my Amendment 7. I simply felt that the issue of appeals to allocation must be explored. As the Law Society put it, speed should not be the only criterion where a person
“may be convicted and sentenced to a lengthy period of custody or suffer life-changing reputational damage”.
To me, the issue of reputation is hugely important. We tend to focus on the length of a sentence, but I think any sentence carries a reputational factor. Following a short summary trial, there is a serious risk that efficiency will be perceived to have come at the expense of fairness. Magistrates, as has been said, are very used to deciding whether to send up a case, but the context and their powers will change considerably. What I am suggesting should be addressed is a mechanism for appeal.
While I remember, I will follow a couple of the speakers opposite. I do not like to say “opposite”, particularly in the case of the two noble Lords who have made points. I find it difficult to distinguish between defendants on the basis of character. It is rather like human rights. Somebody can be a really unpleasant person whom you would rather not have to help. However, their human rights are the same as everybody else’s. The amendment seeks to provide for either side, the prosecutor or the accused, with the permission of the Crown Court, to appeal against the decision, a time limit for the appeal to have, in the court’s view, a reasonable prospect of success, and for there to be criminal procedure rules. I know that the issue of the permission of the Crown Court is contentious in some people’s eyes.
Lord John of Southwark (Lab)
My Lords, while I have sympathy for Amendments 7 and 3, my concern is that this simply adds another layer of backlog or chaos to the Crown Court system, which we are trying to eliminate. Appeals going from the magistrates’ court to the Crown Court are bound to take some time, delay the decision on where that case should sit and therefore delay justice again in that case. How does the noble Baroness propose that those additional delays are avoided?
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.
The Advocate-General for Scotland (Baroness Smith of Cluny) (Lab)
My Lords, this has been an important and informative debate about a fundamental part of the Bill. Given that there is opposition to Clauses 1 and 2 standing part, I will take a moment to set out the principal reasons for them and deal with some general points that have been brought up in the debate, and then I will deal with the specific amendments.
Clause 1 will remove the defendant’s ability to choose to elect for a Crown Court trial for all triable “either way” offences so that venue decisions are made solely by the courts. In doing so, it redresses the balance between victims and defendants by ensuring that they are based on the seriousness and complexity of the case and not the defendant’s preferences. Clause 2 is consequential on Clause 1 and ensures that the written plea procedure will operate consistently with the wider reforms once commenced.
We have heard contributions about confidence in the justice system, particularly in the context of jury trials. My noble friend Lady Chakrabarti and the noble Baroness, Lady Jones, have raised these issues, while the learned and noble Lord, Lord Keen, raised the presumption of innocence, another foundational principle. The Government are concerned about public confidence, and that is a reason why we are bringing forward the Bill. Those clauses will ensure that Crown Court time is prioritised for the most serious and complex cases, ensuring a more proportionate use of limited court resources and sparing victims unnecessary delays.
Magistrates’ courts are fair, robust and independent, and these clauses recognise that. Safeguards remain: both prosecution and defence can make representations on venue, and defendants retain full rights of appeal to the Crown and High Courts. Fundamentally, the Government do not believe that a defendant should be able to override the court’s judgment and secure lengthy delays in the hope that victims and witnesses walk away and the case falls apart before it is heard.
Some general points that have been raised include concerns about magistrates, particularly the complement of magistrates. This was raised by my noble friend Lady Bi, the noble Lord, Lord Macdonald, the noble Baroness, Lady Hamwee, and the noble and learned Lord, Lord Keen. We are increasing the numbers: we have a target to nearly double the complement of magistrates from a historic low in 2022 by 2028-29. Noble Lords will hear more detail about this from my noble friend Lord Lemos during this Committee, so I will not spend time on it just now.
I wish to address the request for evidence from the noble and learned Lord, Lord Keen—indeed, it was raised by more than one person. Again, my noble friend Lord Lemos will deal with this subject in more detail, but detailed modelling has been published by the Ministry of Justice showing the impact on the backlog of the measures. I am happy to point the noble and learned Lord in its direction and share it with him.
Before I turn to specific amendments, I want to address the question from the noble Baroness, Lady Hamwee: what is the collective term for noble Lords of nobility and learning? I wonder if I might suggest “a wisdom” of noble Lords, or indeed “a wisdom” of noble Baronesses —but perhaps others can suggest different terms as the debate goes on.
Amendment 2, tabled by the noble and learned Lord, Lord Thomas of Cwmgiedd, would require the Secretary of State to issue statutory guidance on the allocation of “either way” offences. He acknowledged that this is a probing amendment. I will address the points that he has raised, and indeed I hope to continue the conversation with him beyond this. The noble and learned Lord raised the question of judicial input. The Sentencing Council is currently the body that issues the guidance that is used. That council is chaired by judges; it has judicial membership and indeed it consults judges. It is of course an independent organisation, which is an important safeguard.
The further question that was raised was: should the sentence be determinative of the factors taken into account? Sentencing is not the only factor, but I acknowledge that it is significant. The noble and learned Lord raised important points that were raised also by the noble Lords, Lord Macdonald and Lord Marks. This debate is a good opportunity for us to consider these issues, and I would be happy to continue the conversation after today’s Committee.
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.
Lord Keen of Elie (Con)
Before the noble and learned Baroness sits down, might I raise one point with her? Alluding to the right to elect for jury trial, she described it as the means to “secure lengthy delays”. Are the Government seriously contending that the right to jury trial should be removed because they perceive that it is being abused at the present time?
Baroness Smith of Cluny (Lab)
I am not sure that that is what I did say; if I did, let me correct the record. The purpose of these clauses is to ensure that Crown Court time is prioritised for the most serious and complex cases, ensuring a more proportionate use of limited court resources and sparing victims unnecessary delays.
Baroness Chakrabarti (Lab)
My Lords, I am so grateful to the Committee and to all who spoke on such important matters so thoughtfully and temperately. In particular, I am grateful to the noble, learned and distinguished silks from north of the border, who echoed that tone on both Front Benches. I am grateful to the noble Viscount, Lord Hailsham, for his support, and to the noble and learned Lord, Lord Thomas of Cwmgiedd, for reminding us of the importance of consistency and of a potential role for guidance, and for his gentle wake-up call to those who celebrate not having judges sitting alone via the front door that that it is a possibility via the back door with the Bill in its current form.
I am very grateful to the noble Lord, Lord Marks of Henley-on-Thames—another distinguished silk—for his riposte to the suggestion from a few noble Lords that character does not matter, and that I have launched an affront to universal human rights by suggesting that it does. Forgive me, but character does matter. Nobody said that character should not matter in sentencing; it is a crucial factor. As long as sentencing is important, decisive or determinative in mode-of-trial decisions, I am afraid that character will matter. At the moment, it will matter to the detriment of people facing a potential first-time conviction. That is the logic of the Bill in its current form. To say that character is just a characteristic, such as hair colour or even race or sex, is a mistake that will warrant further discussion and thought from all noble Lords and my noble friends in government. With that, for today at least, I beg leave to withdraw the amendment.
Lord Thomas of Cwmgiedd
“(7A) After section 22A (low-value shoplifting to be a summary offence), insert—“22B Reclassification of summary offences(1) Within six months of the day on which the Courts and Tribunals Act 2026 is passed, the Secretary of State must carry out a reclassification of summary offences and in doing so must have regard to—(a) whether the offence carries a maximum sentence of two years or less, and (b) the indicative list of offences contained in Annex G to the Independent Review of the Criminal Courts by Lord Leveson, dated 18 June 2025.(2) The Secretary of State must, by regulations to be made by statutory instrument, specify the offences which are triable as summary only offences following the reclassification exercise in subsection (1).(3) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.””
Lord Thomas of Cwmgiedd (CB)
My Lords, I have introduced—at some length, I regret to say—the problems that have arisen because we do not have enough information to decide the best way of dealing with the current crisis in the courts. This is another alternative put forward to your Lordships for consideration. I intended to give an explanation, but it was left out of the printed paper. The amendment would provide parliamentary authority for the transfer of a greater range of specific offences, as well as greater certainty, while reducing the pressure on the Crown Court.
The amendment envisages the reclassification of summary offences. The origins of this lay in a submission made to the noble and learned Lord, Lord Leveson, by the Bar Council, which supported the increase of sentencing powers to two years—although, given its confidence in district and deputy district judges, only if such cases were heard by them. The Bar Council also identified a series of offences that it said should be reclassified as summary-only. The noble and learned Lord, Lord Leveson, carefully looked at that and came up with his own view, which is set out in chapter 5 of part 1 of his report.
In essence, he suggested the restriction of the right to elect by removing it from “either way” offences that carried a maximum sentence of two years. In addition, he identified a pool of additional offences based on the average custodial sentence length that they typically received, with other factors pointing to the magistrates’ courts being a proportionate forum. The list of those is set out in annex G and includes possession of controlled drugs up to a certain value, making off without payment—for example, the theft of a pedal cycle—breach of an ASBO, and various other matters. The number of offences is very large and I do not want to take up time by reading them all out.
There is, plainly, a block of offences that could sensibly be reclassified. We urge the Government to consider this, for a number of different reasons. The way in which this proposal is put forward rests on the ways it could be done, but there can be no doubt that the limits in the current summary-only system are out of date and that there is a good case for putting into it a value—for example, in relation to drugs or quantity—which could be used in a number of different ways.
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.
Lord Keen of Elie (Con)
My Lords, I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for raising this issue in Amendment 4. As is the case with a number of his amendments, I note he has the support of other noble and learned Lords—the noble and learned Lords, Lord Burnett of Maldon and Lord Phillips of Worth Matravers, as well as my noble and learned friend Lord Bellamy. It appears to us that the Bill will necessarily require some reassessment of summary offences, so we welcome the point that the noble and learned Lord has raised with the Government.
Should this Bill become law as it stands, even without the original clauses that the Government have already removed, we will be making a significant, indeed fundamental, change to the way many offences are tried. Indeed, should the regulation-making power under Clause 5(1)—that is, the power to increase the magistrates’ maximum sentence—be implemented, we will see a great many more cases, some relating to serious offences, being tried in the magistrates’ courts on a summary-only basis. If the Government are going to proceed with these plans—and we sincerely hope that your Lordships’ Committee is able to demonstrate to the Government how flawed some of them are—Ministers must, as an absolute minimum, undertake a reassessment of the offences that may be tried as summary-only offences.
That said, we have some concerns about subsection (2) of the proposed new Section 22B of the Magistrates’ Court Act 1980. That subsection would require the Secretary of State to specify those offences that are triable as summary-only offences. As noble Lords across the Committee will appreciate, whether an offence is triable as a summary-only offence is defined in primary legislation, and it would be concerning to establish a regulation-making power for the same purpose, unless, of course, the regulations made under subsection (2) were merely intended to be descriptive of existing laws set out in primary legislation. Perhaps the Minister can clarify that point.
On Amendment 51, in the name of the noble Lord, Lord Marks of Henley-on-Thames, with regard to out-of-court settlement, where such settlements are appropriate then they should be considered, and they might well help to reduce the backlog that already exists in both the Crown Court and the magistrates’ court. That said, an additional requirement placed on the courts through primary legislation may not be the best way to promote appropriate out-of-court settlements. I suggest that that is a matter for further and more detailed consideration going forward.
We are a little curious about the proposal that courts be permitted to adjourn a case for a period of up to 28 days to enable an out-of-court settlement to be considered. It appears to us that there is room for that to be abused by more cynical defendants who may find themselves in court. We would have to consider what impact that might have on further delays in both the Crown Court and the magistrates’ court; as all lawyers will know, an adjournment for a period of up to 28 days can transmogrify into something materially different.
Having said that, we understand the force of the point being made by the noble Lord, Lord Marks, and, while it may not be a matter for primary legislation, it is surely a matter for further detailed consideration.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Lemos) (Lab)
My Lords, as this is the first time I have got to my feet, I thank all noble Lords for meeting me and for the various discussions we have had. In relation to this amendment, I thank the noble and learned Lords, Lord Thomas of Cwmgiedd, Lord Burnett, Lord Phillips and Lord Bellamy, for meeting me yesterday specifically to talk about their amendments. I hope we can continue that conversation.
Amendment 4, from the noble and learned Lord, Lord Thomas of Cwmgiedd, seeks to reclassify certain triable “either way” offences to summary-only, in line with the recommendations, as he said, of the noble and learned Lord, Lord Leveson, in his independent review. The Government considered the recommendations of the noble and learned Lord, Lord Leveson, but concluded that they would not result in significant sitting day savings and would carry risks for the wider justice system and public protection. I know noble Lords will say in response to that that the Government are obsessed by backlogs and sitting days, and I shall address that point in my remarks in a moment.
Offences that are triable either way are, by definition, treated as sufficiently serious to warrant the possibility of longer sentences and broader police and prosecution powers, including longer investigatory time limits. None of the noble Lords who have spoken to this amendment has addressed this specific point and it is one that we will need to return to in the discussion of reclassification.
Reclassifying offences as summary-only—as I said, the Government have considered this—would restrict important operational powers and reduce maximum sentences for those offences to six months. This would be particularly concerning in domestic abuse cases, including breaches of protective orders. We do not believe that it would be right to constrain the justice system by restricting the investigative period when the protection of the public and victims is at stake. Tackling violence against women and girls remains a top priority for the Government, of course.
Nevertheless, we recognise the benefits of retaining more cases in magistrates’ courts because of their efficiency, which is why, as we discussed on the first group, we are bringing forward measures to remove the right to elect and to increase magistrates’ court sentencing powers, which we will return to later today. This will deliver many of the same benefits as reclassification without undermining the protections and powers attached to offences that are triable either way.
I want to address comments made by several noble Lords, on this group and the previous one, that the Government’s only concern is the backlog. I want to be completely clear, as my noble and learned friend Lady Smith was: of course the Government are committed to fair trials. That principle is completely intact and inviolate in the Government’s thinking on this. Our concern with the backlog is perhaps better expressed as being about waiting times and their impact on victims’ experiences. The backlog is a problem for administrative reasons, but it is much more important for victims of crime.
We do not think, as a matter of principle, that defendants should choose their own mode of trial. However, I am happy to continue the discussion with the noble and learned Lords, Lord Thomas and Lord Leveson, and others, on the suggestion for reclassification.
On Amendment 51, I recognise that the intention of the noble Lord, Lord Marks, is to increase use of out-of-court resolutions, which can provide an effective and robust alternative to prosecution. I do not think the phrase “out-of-court resolution”—or, with respect to the noble and learned Lord, Lord Leveson, the word “diversion”—will travel very well on the streets. We want to ensure that, in the circumstances described by the noble Lord, Lord Marks, justice is done rapidly for the vulnerable people he spoke about, including vulnerable parents. My preferred description, for further revision if necessary, is “rapid justice” that addresses the root causes, which was the point the noble Lord made. I agree entirely with his comments about parents.
The Government are not suggesting, and would not support any suggestion, that the use of out-of-court resolutions amounts to decriminalisation or making those offences irrelevant. That is not our view. Keeping your children from school is an offence but we think it can perhaps be addressed in the way that the noble Lord, Lord Marks, suggested.
The noble Lord, Lord Macdonald, referred to youth justice. The Minister in the other place, Jake Richards, is concerned about addressing root causes in his work on youth justice. I thank the noble Lord and the noble and learned Lord, Lord Leveson, for their reference to restorative justice, which is an important area where much could be done.
Let me set the position out clearly for the noble Lord, Lord Marks. The Government are committed to strengthening the use of out-of-court resolutions and diverting low-level offenders away from court with conditions that address the underlying causes of crime and therefore reduce the risk of future reoffending. However, the police are already required to assess whether the public interest can be served by an out-of-court resolution instead of prosecution. Prosecutors also make this assessment when making prosecution decisions. Courts also already have the power to inquire about an out-of-court resolution and CPS guidance provides that, where the prosecutor in court concludes that such a resolution is appropriate, the matter should be referred to the police and an adjournment sought.
An additional duty on the court would therefore duplicate these processes—I think this is the point that the noble and learned Lord, Lord Keen, was making—and may add unnecessary delay. However, as outlined in the Government’s response to the recommendations from the noble and learned Lord, Lord Leveson, we are urgently examining the legislative and delivery framework for out-of-court resolutions to ensure that it supports our ambitions and that such resolutions are considered whenever appropriate.
Although I cannot at this stage support the amendments in this group, I was grateful for the opportunity to meet the noble and learned Lord, Lord Thomas, and others to have a constructive discussion on these issues. Although the Government have, for the moment, reached a different conclusion on these proposals, I look forward to continuing those discussions and to further discussing the question of out-of-court resolution with the noble Lord, Lord Marks. With these reassurances, I therefore ask the noble and learned Lord, Lord Thomas, to withdraw his amendment.
Lord Thomas of Cwmgiedd (CB)
My Lords, I thank all who have participated in this short debate. There are no easy answers to dealing with the backlog. There have to be compromises along the way, which we have discussed in the previous debate and in this one. We appreciate the problems that arise by classifying as summary-only, as regards the way that the police should be required to act with greater expedition, but we did not intend by this reclassification to suggest a reduction in the maximum sentence, which would be below two years if the Government take those powers under the Bill or one year if they do not. However, I am very grateful to all who have spoken about it and I hope we can look at this again.
I am most grateful to the Minister for our discussions yesterday and our continuing discussions in relation to finding an answer, because what is critical is that we end up with something certain, so that we produce the same result in every postcode, and that we do not get appeals. We cannot have appeals on the question of allocation.
Also, on the suggestion by the noble Lord, Lord Marks, on out-of-court resolution, I think I can recall this subject going back at least 20 years. One of the problems has been in getting some system to bring together the magistrates, the police and the prosecution service. One suggestion—this was probably 15 or 20 years ago —was that magistrates should play a role in looking at the way in which local police forces dealt with out-of-court disposal. That was never proceeded with. There are lots of other ideas, but it is plainly part of the system of justice that we get out-of-court disposals correct. It is not decriminalisation; it is finding a means of an effective deterrent for future criminality, rather than sending people into the criminal justice system. I welcome the proposal raised by the noble Lord, Lord Marks, and hope we can carry it further. With those observations, I beg leave to withdraw my amendment.
Lord Thomas of Cwmgiedd
“Legal aidUnder powers contained in the Legal Aid, Sentencing, and Punishment of Offenders Act 2012, regulations made by the Lord Chancellor must provide, no later than the day on which this Act is passed, that—(a) a defendant’s eligibility for legal aid, and(b) the remuneration paid to providers of legal aid services,is calculated on the basis applicable in the Crown Court, irrespective of whether the matter is heard in the magistrates’ court or the Crown Court.”Member’s explanatory statement
This amendment is intended to harmonise legal aid eligibility, and the remuneration of the providers of legal services, irrespective of whether an either way offence is retained in the magistrates’ court or sent to the Crown Court, thus reducing the risk of unrepresented defendants in the magistrates’ court.
Lord Thomas of Cwmgiedd (CB)
My Lords, I had hoped that the noble and learned Lord, Lord Bellamy, would have been able to be present today, but unfortunately circumstances have made that impossible, so I am afraid noble Lords are going to have to hear from me again.
Lord Macdonald of River Glaven (CB)
My Lords, first, I agree with the noble and learned Lord that this is a critical amendment. In my limited experience of sitting as a recorder, there is nothing a judge hates more, or fears more, than a litigant in person, because it makes the case longer, more difficult and more complex to manage. I commend to your Lordships a recent paper published by the Nuffield Family Justice Observatory on the impact of litigants in person in the family courts relying on AI for their pleadings and arguments and refusing to accept the rulings and judgments of judges on the basis that Claude says something different. I would foresee a quite chaotic situation in the magistrates’ court were there to be an absence of lawyers to represent defendants facing terms of imprisonment.
The noble and learned Lord is quite right that, if there is a disparity in payment between the magistrates’ court and the Crown Court, those who currently have mixed practices will stop going to the magistrates’ court and people will stop practising in the magistrates’ court. I suggest strongly to the Government that the sort of equalisation of fees that this amendment speaks to is absolutely essential if their reforms are to work.
Lord Shamash (Lab)
My Lords, I declare an interest as a founding partner of Edwards Duthie Shamash. We are principally a legal aid firm with a substantial commercial aspect. I have been in the legal aid business for a very long time: more decades than I care to remember. The problem we have now is that we are operating under a graduated-fee system and a fixed-fee system. Under a fixed-fee system, you can find yourself doing an awful lot more work, and you are stuck. Just before this debate started, I spoke to one of the partners, who said that you can get down, sometimes, as low as £10 an hour. The average rate, and the fixed rate, is about £60 an hour in the magistrates’ court. It is a bit higher in the Crown Court. It was mentioned that, being a lawyer, you sometimes make advocate because you want a bit more money. In this case, I would certainly welcome this amendment.
One of the other points that has been touched on is recruitment. Recruitment of young lawyers to do crime is incredibly difficult. I speak from personal experience. I hope it does not reflect on my firm, but we have had adverts out for a very long time for young criminal lawyers. You are competing with the salaries that you can earn in the City: over £100,000 for a newly qualified lawyer. We cannot even begin to think about paying that sort of rate. It is very difficult, because somebody who comes to do this work has to be politically, with a small ‘p’, very committed to the work they are doing. It is extremely difficult to find the right sort of person to do that. Not least of which, these days, most students who have gone through the education process have ended up with enormous debts. Many noble Lords will be aware of this, having grandchildren or whoever who are at university ending up with considerable debts to be paid at the end of their training. So this is incredibly serious.
The noble and learned Lord, Lord Thomas, asked: what are we doing with this? We are going to find ourselves very short of young criminal lawyers. We can see that ourselves. What is going to happen then? Coming back to the debate we had earlier about the number of people waiting to come to trial in a magistrates’ court, sometimes, even at the current time, the wait is two years. In the Crown Court, we have cases that are waiting to be heard in three years’ time. It is complete madness. What is going to happen? I am genuinely very concerned at the situation that we are now confronted with.
Baroness Jones of Moulsecoomb (GP)
My Lords, I rise to speak to the remaining amendments in this group. Amendments 8, 67 and 75 essentially agree with the points made by the noble and learned Lord, Lord Thomas of Cwmgiedd. I draw the Government’s attention to their own equalities statement. It says 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 a pretty big admission, and I think it is something that we have to take into account. I hope that the Government will remember their own words, because it means that they are well aware that their reforms will mean more people going through the courts without a lawyer.
Many of us raised this at Second Reading. The income threshold for criminal legal aid in the magistrates’ court is much lower than in the Crown Court. As Justice points out, someone working full time on the minimum wage will not qualify for legal aid in the magistrates’ court. So the Government are moving more cases into a court where fewer people qualify for legal aid. They know this will happen. It says so in their own assessment.
Justice also points to research by Transform Justice, showing what happens when defendants have to represent themselves. They may not understand the charges, they enter the wrong plea, they struggle to question witnesses or fail to put forward information that could reduce their sentence. The consequences become even more serious when the Bill increases magistrates’ sentencing powers to two years in prison. Someone could face a substantial prison sentence without having had access to a publicly funded lawyer.
Victims can also be affected. In some cases, including assault cases, defendants are allowed to cross-examine witnesses themselves. More unrepresented defendants could mean more victims having to face questioning by the person accused of the offence. The Institute for Government has warned that unrepresented defendants can make hearings longer and more complicated. That does not sound like any sort of efficiency saving that the Government are hoping to achieve.
At Second Reading, the Minister acknowledged these concerns, and the Government’s answer was that they would look at the new income thresholds after the reforms had been implemented, depending on funding and operational considerations. I want to make sure that they are addressed before these huge changes come into effect. The Government know there is a problem; they know that more defendants will be in the magistrates’ courts, where the legal aid threshold is much lower, but they want to press ahead with the court reforms and leave the question of whether people can afford legal representation until afterwards.
The noble and learned Lord, Lord Leveson, and the Justice Committee have recommended increasing the income thresholds. My amendment, supported by Justice, would make sure that the financial eligibility criteria in the magistrates’ courts are brought into line with those in the Crown Court before the relevant provisions come into force. People should not lose access to legal representation simply because their case is now being heard in a different court. The Government should get this right before they bring in the reforms and not wait until people have already suffered the consequences.
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.
Lord Lemos (Lab)
My Lords, my answers are always unambiguous.
Amendment 6, tabled by the noble and learned Lord, Lord Thomas of Cwmgiedd, would apply Crown Court legal aid financial eligibility rules and pay Crown Court-level fees to providers for triable “either way” offences, even if that case takes place in the magistrates’ court. Amendments 8, 67 and 75, from the noble Baroness, Lady Jones of Moulsecoomb, would extend the same financial eligibility criteria which were applied at the Crown Court to proceedings heard at the magistrates’ court, and provide for these changes to come into force before implementation of the Bill’s wider provisions. The noble Baroness laid some emphasis on that, as did the noble Lord, Lord Marks, and I heard the strength of feeling on this subject at Second Reading.
These four amendments are not limited to triable “either way” offences impacted by the removal of the right to elect a Crown Court trial. The effect would therefore be to apply Crown Court rules on legal aid financial eligibility to all defendants and cases in the magistrates’ court, including all summary-only cases. Under current financial eligibility rules, the majority of defendants—something that the noble Baroness, Lady Jones, referred to—charged with triable “either way” offences would be eligible for legal aid at the magistrates’ court. That tells you something about the social make-up of who appears in our magistrates’ courts.
For individuals who do not financially qualify for legal aid, there are already measures in place in the magistrates’ court to provide support. The hardship review mechanism can provide legal aid to some individuals who fail the means test but face higher than usual outgoings. In addition, unrepresented defendants may access the free magistrates’ court duty solicitor scheme, which may provide legal representation at the first hearing for those charged with an imprisonable offence.
None the less, we have been listening carefully to the concerns raised at Second Reading around eligibility and the potential impacts of reform on litigants in person, as mentioned by the noble Lord, Lord Macdonald. We have accepted in principle the recommendation of the noble and learned Lord, Lord Leveson, to increase the legal aid income thresholds at the magistrates’ court. In so doing, we recognise the importance of ensuring that legal aid is available for those who need it most, and the financial eligibility thresholds reflect this. I think that is fairly unambiguous. Once court reforms introduced by the Bill have been fully implemented, we will be better placed to take final decisions on income threshold levels, subject to future funding decisions and operational considerations. I have no doubt at all that the noble Baroness, Lady Jones, the noble Lord, Lord Marks, and others will press us on that point, but I am repeating the formulation that I used at Second Reading. We are also examining the measures that are currently in place for litigants in person and considering additional options for support.
I think noble Lords would acknowledge that amendments to align Crown Court and magistrates’ court eligibility would add complexity to the magistrates’ test through the introduction of a contributory system which assesses income and capital. This may negatively impact efficiency in the magistrates’ court and create additional administrative burdens. I spent some time this morning reading about how this works, and it was interesting.
In relation to remuneration for legal aid lawyers in Amendment 6, I am afraid that, with regard to the point made by my noble friend Lord Shamash, I do not think that we will be paying legal aid lawyers the same rates as lawyers in the City are paid—but then the job is much more interesting. I say that as someone who worked in the City for quite a long time.
Fee schemes are specific to the court where the case is heard and are designed to reflect the differing processes and nature of work in the magistrates’ court and Crown Court. The magistrates’ court fee scheme is designed to be simple to administer and for providers to use, reflecting the greater speed and case volumes through that court. There is also a non-standard fee route for cases in the magistrates’ court, which ensures that work on complex cases is appropriately remunerated. I hope I have set out where the Government stand on that and demonstrated that the Government have listened. With that, I would ask the noble and learned Lord, Lord Thomas, to withdraw his amendment.
Lord Thomas of Cwmgiedd (CB)
My Lords, I am grateful to all noble Lords who have spoken of the importance of this point—the noble Lords, Lord Macdonald, Lord Shamash, Lord Jabbar, and Lord Marks of Henley-on-Thames, the noble Baroness, Lady Jones of Moulsecoomb, and the noble and learned Lord, Lord Keen. Although we welcome what the Minister has said, we all regard it as imperative that, if the more serious work is being transferred, that should be done simultaneously with a change to legal aid. That is critical. We cannot wait, because it will cause problems in the magistrates’ courts and with magistrates’ courts recruitment—a point particularly made by the noble Lord, Lord Shamash. It is getting very much more difficult to find people prepared to do magistrates’ courts solicitors’ work. Of course, the Government could not afford to pay City rates; that is out of the question. But at least pay a decent rate for the hard job people do, to encourage them to come into that part of the profession. I agree with the Minister: much of the work is far more interesting than working on infinitely uninteresting schemes in the City.
I wish also to thank the noble Baroness, Lady Jones of Moulsecoomb, for her amendments and also for pressing the point about getting eligibility brought into line. Maybe the answer is to look at the complexity and see whether that can be simplified as well. With those remarks, I thank noble Lords and beg leave to withdraw the amendment.
Viscount Hailsham
Member’s explanatory statement
This amendment would limit judge-only trials to situations where all of the defendants are to be tried on indictment for one or more offences listed in Schedule 3ZA.
Viscount Hailsham (Con)
My Lords, in moving Amendment 9, I shall also speak to a number of the other amendments I have tabled in this group. I apologise for the fact that there are 14 such other amendments. I will therefore, I am sure, be forgiven if many of my arguments are summarised very briefly and if I rely on the explanatory notes that appear on the Order Paper.
Behind this set of amendments, of course, is one’s anxiety about “judge only” trials. That is indeed a very important issue that we are going to address, I think, in group 6. I share the very serious reservations about “judge only” trials, but the arguments will be deployed in group 6. I shall not deploy them now. But it would be prudent, against the possibility that the Government will press ahead with “judge only” trials in certain circumstances, for this Committee to consider how faults and omissions within the present Bill can be remedied. That is what my raft of amendments is designed to achieve.
I will start with Amendment 9, which is the lead amendment in this group. It is designed to ensure that “judge only” trials can be ordered only when all the defendants on the indictment are charged with the relevant offences. It seems to me to be rather hard that a defendant who is not himself or herself charged with a relevant offence should be swept up into a “judge only” trial, because other defendants are. That seems to me to be bad news and I would like to see it addressed by my amendment.
I turn to Amendments 14 and 15. I am deeply concerned with the proposition that a “judge only” trial can be ordered when a court is satisfied that, because of the length or complexity of the trial, it is more appropriate for the trial to be conducted without a jury. As a Minister of very long standing—I was a Minister for 13 years—I know that the word “appropriate” is a weasel word. It is used by Ministers, the Executive, civil servants and, no doubt on occasion, the judiciary to cover anything they want it to cover. It is a bad word to use and it is not, in my view, a judicial word.
What I have tried to do in Amendment 14 is ask myself what one is trying to address. I suggest what one is trying to address is when the length or the complexity of the case is such that it cannot reasonably or fairly be tried. That is different from “appropriate”. It is a judicial concept, a concept of justice, which I very much hope would commend itself to your Lordships’ Committee.
Rather similar observations arise in the context of my Amendment 15. Looking at the substantive bit of the Bill, we see that judges are required to determine whether it is not in the public interest to hold a jury trial. But, again, the “public interest” is not really a judicial concept. What we should be doing is determining in this context whether it is fair to a defendant to have a jury trial. That is what Amendments 15 and 16 are designed to do. I hope that that might commend itself to the Committee.
I am conscious that I am standing on a raft of many amendments, and I do not want to weary the Committee. So, I will just summarise in brief the other amendments in my name, pointing to the explanatory note wherever possible. Amendment 18 is a procedural amendment designed to ensure that a defendant can make full representations, oral and written—a hearing if required—when this issue has to be determined. That seems to me to be wholly fair: very difficult to argue against, I would think.
Amendment 19 concerns the filter of the Lord Chief Justice or a nominated judge; this, again, is a very useful protection. Amendments 20 and 28 concern rights of appeal—I know the noble Lord, Lord Marks, is at one with this. Amendments 23 and 24 deal with the circumstances in which an order can be revoked. Again, we should be considering questions of fairness and justice; that is what my amendments are designed to do.
I come to Amendments 26 and 27. These, though procedural, are very important. The purpose is to ensure that a defendant has an early statement of the outcome of the proceedings. In the general run of cases, the defendant is entitled to know the outcome within not more than seven days of the conclusion of the proceedings, and they are entitled to a full and proper written judgement. These procedural requirements are not apparent on the face of the Bill.
Having gone through my amendments at a bit of a scamper—it was a broad raft and I am conscious that 14 amendments is an awful lot—I conclude by expressing the hope that some at least might find favour in the eyes of this Committee. I beg to move Amendment 9.
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.
Lord Keen of Elie (Con)
My Lords, I have lent my name to Amendment 10, but I recognise that my noble friend Lord Hailsham has provided what he describes as a raft of amendments which are intended together to establish a bulwark that will give a stronger safeguard against the removal of jury trial. In that sense, they are a secondary defence to the provisions in this Bill. We would rely on the primary defence, which is the retention of jury trial as it presently exists, but I acknowledge the reasoning behind my noble friend’s amendments—I just hope they will not be required because the Government will see sense with regard to the primary position.
We will come on to discuss related issues in the next three groups, and in particular whether we should see these fundamental changes to the justice system coupled with Henry VIII powers as reflected in Schedule 1 to the Bill. This is an ecosystem. All these elements are interconnected and if you interfere with one, you have an impact on the other.
Finally, I agree with the noble Baroness, Lady Hamwee, about the important distinction between public interest and the interests of justice. I would add only that the interests of justice can be seen as being orientated towards the interests of the defendant in a way that the public interest will not necessarily be, and therefore that distinction is important.
Lord Lemos (Lab)
My Lords, first, I thank the noble Viscount, Lord Hailsham, for meeting me beforehand and setting out his views in trenchant form, not just on this set of amendments but on the Bill as a whole. All these amendments seek to add new safeguards to Clause 3: “judge alone” trials for complex or lengthy fraud and financial cases. That clause already contains robust and careful safeguards, and it is important that I go through them. Cases can qualify for the policy only if they involve a scheduled fraud or financial offence and do not involve excluded homicide or indictable-only sexual offences. That is a very important exclusion. A preparatory hearing must have been ordered for the case, something that can happen only to manage exceptional seriousness, complexity or length—to the point that the noble Lord, Lord Marks, made. The case must be sufficiently complex or lengthy that jury trial cannot be in the public interest, and judges can decline to make an order for any other reason where jury trial is more appropriate. It is Crown Court judges who will be making these decisions and the Government’s view is that we trust them to apply the test set out by this policy properly.
Amendment 9 would allow an order to be made only when all co-defendants in a multi-defendant case were charged with an eligible fraud or financial offence. Amendment 10 would mean that every defendant would have to be charged only with fraud or financial offences. Ancillary offences, such as theft, would make a case ineligible—the link with theft is important. Defendants involved in the same alleged criminal schemes are often tried together, even though they are charged with different offences. Defendants in large-scale fraud and financial cases often face related charges, such as theft, that should, rightly, not be scheduled offences on their own. Severing charges, as these amendments suggest, or defendants, would not in the Government’s view be an efficient use of court time by requiring another separate trial. These amendments could encourage artificial charging decisions or unnecessary changes to the indictments to circumvent the statutory test.
Lord Marks of Henley-on-Thames (LD)
My Lords, before the Minister sits down, and certainly before the noble Viscount, Lord Hailsham, stands up, I would just question the Minister’s assertion that, because there is an appeal against a conviction that would continue, Amendment 25 is otiose or not needed. Under new Section 42A(5) on page 6 of the Bill, there is no right of appeal against a decision to make or not to make an order. If it is intended that a decision to make or not to make an order under this section could be raised as a ground of appeal in the Court of Appeal following conviction, how is that clear in view of the bar on appeals under new subsection (5)?
Lord Lemos (Lab)
The noble Lord makes an interesting and important point, and we can certainly discuss it. However, as I have said, the Government’s view is that the designation of these trials is protected very carefully and thoroughly, and that should be sufficient.
Viscount Hailsham (Con)
My Lords, after 40 years in Parliament, I have come to revere the guidance given by St Brevita and the wise words of Father Concision, both of whom are doubtless known to the present occupants of the episcopal Bench, so I shall confine myself to three points. First, I thank the noble Baroness, Lady Chakrabarti, for her support. I always welcome it; we very frequently think along the same lines. Secondly, I am glad that Members of your Lordships’ Committee focused on the words “appropriate” and “public interest”. That is a matter of some concern and perhaps one that we should refer to later. Lastly, these amendments—all the occupants of the raft—raise a number of serious issues which we may well revert to on Report. That said, I beg leave to withdraw the amendment.
“(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.
Lord Phillips of Worth Matravers (CB)
My Lords, perhaps I may add a word in support of this amendment. Most who support the right to trial by jury do so with regard to the interests of the defendant. That is implicit in the term “right to jury trial”. The right protects the defendant from the politically motivated prosecution or the judge who favours the prosecution.
The Bill proposes removing the right to jury trial in the case of fraud trials and other trials that are going to be lengthy and complex. It does so because of the procedural disadvantages that flow from having to present to the jury a case that involves complex financial transactions that may well fall wholly outside their experience. Those disadvantages are also felt by the defendant. A trial that goes on month after month is a nightmare for them.
There is a further point: a jury trial ends with a simple verdict, guilty or not guilty, but a “judge alone” trial ends with a reasoned judgment. When I was a judge, I asked a number of my colleagues whether, if they were wrongly charged with serious fraud, they would prefer trial by judge or trial by jury. Unanimously, they opted for trial by judge. That choice reflected in part a concern that a jury might not be able to understand the facts relating to the alleged offence, but it was also motivated by a desire for a reasoned judgment: if they were going to be convicted, they wanted to know why. Why should a defendant not have an option to choose trial by judge alone if, as our amendment proposes, trial by judge alone is in the interests of justice?
Lord Carlile of Berriew (CB)
My Lords, I am grateful to my two noble and learned friends who have just spoken and to the noble Lord, Lord Marks, for their comments in support of the principles behind these amendments. I should say that my Amendment 32 goes further than the other amendments because it is intended to allow such applications to be made by a defendant for trial by judge alone, and not just in lengthy and complex cases.
My amendment asks for a new right to apply for—not to select but to apply for—trial by judge alone. Many noble Lords who have spoken in the debates today and at Second Reading strongly support the right to elect trial by jury. If we have such enthusiasm for the right to elect trial by jury, why not allow defendants to elect trial by judge? That would set out a level playing field. It seems entirely logical and something that we have overlooked. Speaking only for myself to this extent, I have been waiting a long time to find a Bill in which the proposal in Amendment 32 is in scope. It is not entirely dependent—it is not dependent at all—on the rest of the Bill, but here we have the vehicle to create this new right that would save time and money and give a greater sense of justice.
In a very dusty basement in my inn of court, Gray’s Inn, there were two shelves full of the manuscript notes of every single case that I ever did from 1971, when I started practising at the Bar. Later, they were reduced to computerised form, which really put me in my place, because the expert who reduced them, every word of them, managed to put them on a single stick, which I have in a drawer at home. I am able to access this very personal library of all the cases that I have done. I do not do criminal trials any more, but one thing that I always used to do was to make a note at the end of my notes about what I as an individual—not just as a barrister but as a person—thought was the right or wrong result of the trial. On a number of occasions, only a few cases but significant ones, I placed words like, “Wish we’d been able to have judge alone”. In a number of others, I placed the words, “Made a mistake —we did not apply for trial in the magistrate’s court and should have done”.
There are many cases where trial by judge alone, or indeed trial not by jury but in the magistrate’s court, is not only in the best interests of the defendant—and probably of the witnesses and victims, because of the reduced machinery required in presenting the evidence in court—but is actually in the interests of justice. In one of those cases, an appeal took place, in 1988—16 years after I was junior counsel in a murder case in which our client was convicted. There were no court records whatever, but I was able to provide from my library of notebooks the only record that the Court of Appeal could use. I had to redact a limerick that I had written about a rather pesky judge, but otherwise it was the record of the case. It was not a case in which I would have advised asking for trial by judge alone, but I had written at the end, “Maybe without the jury he would have been acquitted”. It took 16 years for him to be acquitted by the Court of Appeal, and there are such cases.
I have great respect for jury trials. As a prosecutor or as a defender, if you like that sort of thing, there is nothing like making your story the one that the jury hear, enjoy and adopt. An advocate in jury trials is working with a jury; it is quite a different discipline from working with a judge. When you have a trial in front of a judge alone, you have a much more mechanical process—that is not to criticise judges for being mechanistic, but it is just a fact—in which the judge looks at the issues and tables them on one side of the page, as it were, and on the other side of the page tables the issues that have to be determined by the court. I am looking at the noble Baroness, Lady Morris of Bolton, opposite, whose husband is an experienced and highly respected judge in the north-west of England.
I have great respect for jury trials, but for some cases there are disadvantages about them. There is the potential lengthening of the case in front of a jury. I once did a case in London in which my client, a respected chartered accountant, was accused of fiddling the VAT in relation to some somewhat dubious services provided in a basement club somewhere near Soho. He had to wait a very long time to be acquitted in a case in which the judge quite plainly, if trying the case alone, would have said, “There just isn’t the evidence here. Why have we wasted all this time?”
As well as potential length and complexity, there are issues that have already been mentioned such as the publicity, the unforeseen consequences of publicity and, above all, the absence of written reasons for a verdict. As I mentioned at Second Reading, in Northern Ireland there are courts that deal with cases—admittedly, a special kind of case, cases involving terrorism issues and matters arising from the Troubles—that are heard by judges. I reviewed them for the Government during the time that I was Independent Reviewer of Terrorism Legislation. The acquittal rate in those courts in Northern Ireland is higher than the acquittal rate in front of juries in so far as you can describe comparable cases. With a judge in an appropriate case, you have a reasoned judgment explaining why the judge has reached a particular decision. That is applicable especially in historic sex cases and in accountancy-heavy cases, and, as Northern Ireland has shown, it can often leave a defendant more satisfied that he or she has had a fair hearing.
I suggest that this is a simple amendment which would probably save some time, which would ensure that the right to jury trial was extended or removed in a proper way and which would add something creditable to our system which is replicated in some Commonwealth countries that have almost exactly our systems of trial.
Viscount Hailsham (Con)
My Lords, I want to make only two brief points. First, I find the arguments made by the noble Lord, Lord Carlile, very compelling. I would like to associate myself with them, and I very much hope that the Minister will give them serious consideration. Secondly, and differently—I hope it will not be thought by the Committee that I am making an unfair point—I revert back to group 4, where we discussed the meaning of the words “appropriate” and “public interest”. I am sure the Minister will note that, in Amendment 32, tabled by the noble Lord, Lord Carlile, he used the phrase “interests of justice”, and in Amendment 22, the same phrase was used by the noble and learned Lord, Lord Thomas. Neither used the word “appropriate” and neither used the words “public interest”. I wonder why.
Baroness Chakrabarti (Lab)
My Lords, I find myself in the quite awkward and unhappy position of having serious reservations about amendments proposed by noble Lords and noble and learned Lords who I so respect.
In the context of the proposed scheme, whereby there will be no right of election in “either way” cases for jury trial any more, it is proposed that there should be a right not to elect for a “judge alone” trial but to apply for one. The arguments have, of course, been put eloquently. However, I ask the Committee to think about how this might be received. I do not need to pepper my brief comments with references to particular high-profile cases, recent or historic, but how might it be received if, for example, in a high-profile case of misconduct in public office, a sex-offence case, or another case involving people of significant standing, around which there perhaps has been some publicity, they apply for a “judge alone” trial rather than face 12 members of the public? How might that be received in such a high-profile case, in the light of what I suggest is a current crisis of trust in democratic and rule-of-law institutions in this country? I ask the Committee to reflect for a moment on how it might go down.
Further, in the interest of protecting the judiciary, how might it be if, in response to one of these applications in a high-profile case—it could be fraud, misconduct in public office, sex offences, et cetera—it is decided to welcome that application and agree that the case be heard by a judge alone? In the case of a high-profile acquittal, with which no doubt the defendant would be very happy, what protection will there be for the judge alone, and for the judiciary in general, given the context of how the public have been feeling in recent years about the institutions of our state? I ask the Committee to pause and reflect on that. That is my concern.
Lord Leveson of Liverpool (CB)
My Lords, I had not intended to speak at all in this debate. My views, for what they are worth, are set out in 1,000 pages, all available to your Lordships to consider to such extent as they wish. However, I must deal with the comment made by my friend the noble Baroness, Lady Chakrabarti, in relation to high-profile cases. The judge is not bound to accept a decision to try a case alone, and I could well understand circumstances in which a judge would feel that it was not appropriate—for all the reasons that the noble Baroness identifies—to try a case alone.
This is a system which is well tried in Canada, where there is a right of trial by jury, and overwhelmingly defendants choose to be tried by judge alone. It is available in Australia and New Zealand—other common-law countries that have developed their jurisprudence based on ours. I am afraid it is all set out in the report and so I will say no more. It is a matter, of course, for the Government to consider how they proceed, as they have decided how to proceed with the other recommendations I made in my report. However, I offer that view on the basis that, at the end this week, I will leave the country and will not be back until Christmas.
Lord Keen of Elie (Con)
My Lords, the temptation to leave the country is there, but I shall seek to resist it.
The amendments in this group—in particular, Amendments 12, 13 and 22—appear to us to be intended to try to find a halfway house that would give some protection to the right of jury trial, while giving the Government some opportunity to reduce the number of cases that are tried by a jury. We disagree in principle with the Government’s overall approach, and so it would be difficult, and indeed inappropriate, for us to support the ideas that underpin these proposed amendments. It is in these circumstances that we express no particular support.
I note the point made by the noble Lord, Lord Carlile of Berriew. It is an issue that has been raised before and that might be subject to further consideration in the light of the evidence from other common-law jurisdictions, but it is not one that immediately arises in the context of this group.
Lord Lemos (Lab)
My Lords, Amendments 12, 13, 22 and 32 all relate to allowing defendants to apply for trial by judge alone in the Crown Court. Amendments 12, 13 and 22 would introduce a role for defendant applications into Clause 3, which provides for “judge alone” trials in certain complex or lengthy fraud or financial cases. Amendment 32, from the noble Lord, Lord Carlile, would allow any defendant in the Crown Court to apply for trial by judge alone, so that goes significantly further, and he set out the case very eloquently.
Amendment 22 would allow defendants to apply for the court to make an order under Clause 3. The court would have to apply an “interests of justice” test —the noble and learned Lord, Lord Thomas, made that clear—before accepting an application. All co-defendants in a multi-defendant trial would have to apply, and the prosecution could not apply. Amendments 12 and 13 would make defendant application a mandatory condition of “judge alone” trials for complex or lengthy financial cases. The court could not move on its own to make an order, and neither could the prosecution apply.
Any defendant in the Crown Court would be able to apply for “judge alone” trial under Amendment 32. It is not limited to fraud and financial offences. The exact process would be set out in Criminal Procedure Rules. The court would determine the application by applying an “interests of justice” test, but must have regard to various matters including exceptional complexity, prejudicial publicity, national security considerations and other named criteria. I recognise that it is similar, as he has just said, to a recommendation made by the noble and learned Lord, Lord Leveson, himself.
However, the Government are unable to accept this proposal. The Government agree with the conclusion of the noble and learned Lord, Lord Leveson, that court choice, rather than defendant choice, should determine the appropriate mode of trial. This central principle runs through the Bill and we wish to maintain it, so I am making almost exactly the converse of the case made by the noble and learned Lord, Lord Keen, with the same sense of consistency.
The Government’s view is that we must redress the balance between defendant and victim. We have heard from victims that they feel the balance is currently tilted in favour of defendants, who get too much control over questions of venue or mode of trial, when victims have no say in this. Our reforms would achieve the right balance by placing the decisions on mode of trial squarely in the hands of the court. Decisions should be based on whether a case meets the statutory test, not the preference of a defendant.
Let me be clear that this is not to say that the views of the defendant would be absent entirely under Clause 3. Parties must be given the opportunity to make representations on a potential order and the court must take those views into account when determining whether to make an order.
I thank all noble Lords for a fascinating debate. I am sorry to hear that the noble and learned Lord, Lord Leveson, is leaving the country, but I hope we will hear from him again before he does; surely, it is not that bad. Given this position, I hope that the noble Lord, Lord Marks, will consider withdrawing his amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am very grateful to those who have spoken in this short debate. I am bound to say that, at the moment, I am disappointed by the position taken by the Minister. I can see his reasoning, but I am not sure that there is a great deal of understanding of the position of defendants or the arguments put particularly by the noble and learned Lord, Lord Phillips of Worth Matravers, and in relation to Crown Court trials generally by the noble Lord, Lord Carlile. I appreciate that goes much further than my amendments do. Nevertheless, that may be something we can continue to discuss. I would envisage further thought on whether jury waiver by defendants would not be appropriate in the Clause 3 cases. Meanwhile, I beg leave to withdraw my amendment.
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.
Lord Carlile of Berriew (CB)
My Lords, I wonder whether at this point I might make a general point about the issues we are discussing. If ever I have seen a case of having your cake and eating it, this is it. Having listened to the Minister’s response to my Amendment 32, it is breathtaking to see the Government’s response to that compared with Clause 3. The amendment of Section 42A in Clause 3—on page 6 in subsection (4) —allows the prosecution and the defendant an opportunity to make representations. So the Government want to allow the defence, if they feel like it, to make representations that there should be a trial by judge alone. As it happens, I am with the Government on this; I agree with them on Clause 3 in broad terms. But I suggest that calling on principle as the justification for what they are doing in relation to these sorts of cases and the broader range of cases I referred to in my Amendment 32 is pretty hypocritical.
Viscount Hailsham (Con)
My Lords, I will say a very brief word or two on the Clause 3 stand part debate. I know that my noble and learned friend will advance the arguments very fully, so I will say only some very brief words. I am very concerned about the concept of a “judge only” case. I have practised off and on at the Bar for 50 years. I am bound to say that I was only ever a jobbing barrister; I do not claim to have the legal distinction of many noble and learned Lords in this Chamber. But, when I started at the Bar, and it truly was 50 years ago, there were many judges whom one did not want to appear in front of. One went to great effort, if one could, to move the case from judge A to judge B, because one knew perfectly well that judge A was likely to convict. That may well have improved a great deal, and I will accept that it has, but judges, even in an ideal world, become case-hardened, and one needs to keep that in mind.
I have one further point, if I may. I still practise as a legal assessor to regulatory panels connected with the healthcare profession. Those panels comprise three panellists. It is very much in my mind that frequently it is the collective decision of three that leads to a fair decision. Had there been just one panellist, I am conscious of many cases where I think I would conclude that the judgment was unfair—so I am very much in favour of collective decision-making. That is what a jury is about and not, of course, what the single judge is about.
Lord Sentamu (CB)
My Lords, like the noble and learned Lord, Lord Leveson, I had not intended to speak. Commonwealth countries have been referred to. I originally come from Uganda, and I did a bit of law there. Although Uganda follows the British system to the letter, it chose not to have jury trials. All the trials are done by judges, and in more serious cases the judge sits with two assessors. I have not seen any failure to deliver justice properly. The amendment from the noble Lord, Lord Carlile, is a halfway house, in which trial by jury is still affirmed but, in some cases, “judge alone” would be the order of the day. The same would be true for some senior magistrates’ cases.
Baroness Jones of Moulsecoomb (GP)
The noble and right reverend Lord has uttered what amounts to blasphemy in this Chamber. He said that tradition must be renewed. Had your Lordships’ Chamber been full, he would have been booed soundly. I think that tradition has to be renewed, but sadly this House tends to resist.
Lord Thomas of Cwmgiedd (CB)
My Lords, I will briefly speak to Amendment 31 standing in my name and those of other noble and learned Lords. It seeks to add to the category of case that could be tried by judge alone, and we put it forward for consideration. There are offences that take a long time to try in the Crown Court: health and safety at work is one example, and environmental protection is another. We would have added trading standards had the legislation not been so complicated that the amendment would have taken a lot of paper to put all the bits of legislation down. We therefore put forward these two examples as illustrative only.
We restricted this amendment to cases where the defendant is a corporation. These are offences that, in effect, turn on issues of fact and expert evidence. If one is concerned only with a corporate defendant, the concerns about removing trial by jury are much less. As the whole Bill is directed at trying to improve our system of justice, can we look at this as another means of reducing pressure on the Crown Court? It is something that we ought to consider. We put this forward as one of the ideas that ought to be put into the melting pot, because we are surely in a melting pot situation. I will say no more about this amendment, but may return to it at a later stage.
Baroness Jones of Moulsecoomb (GP)
My Lords, I oppose Clause 3. I am particularly concerned that the Government are presenting it as a practical measure to tackle delays when the evidence suggests that it will make very little difference. The Government’s own impact assessment estimates that these provisions will save just 200 Crown Court sitting days a year—around 0.18% of current Crown Court capacity. That is a tiny return for such a huge change to the way that criminal justice is delivered.
There is also no good reason to assume that removing juries will necessarily make these trials shorter. Judges sitting alone will still have to consider the evidence and, in complex fraud cases, they may have to produce lengthy reasoned arguments. Juries also provide an incentive to keep trials properly focused and evidence clearly presented. Fraud cases often turn on questions of fact, including whether someone acted dishonestly, and juries are well placed to judge dishonesty. The independent review by Jonathan Fisher KC found that juries can deal with complex fraud cases when trials are properly managed and presented. He warned that removing juries from serious fraud trials would send the wrong message about the seriousness of fraudulent misconduct.
There is something else in this clause that really concerns me, which is the power of the Secretary of State to add further offences to the list. In your Lordships’ House we get a little fed up with statutory instruments that bring in more and more power to a Bill that we have already passed. Although these initial provisions cover financial crime and related offences, the scope can be widened through secondary legislation. It is a very real risk that restrictions on jury trial will extend beyond the cases the Government are currently talking about. Jury trial is not an obstacle to be removed whenever a case becomes difficult or lengthy. It is an important protection against the concentration of judicial power and a vital part of public participation in the justice system.
Lord Keen of Elie (Con)
My Lords, these amendments relate to issues we have already discussed at some length this evening, so I will try to keep my remarks relatively brief.
Clauses 3 and 4 would initially—I emphasise the word “initially”—apply to cases of fraud, meaning that those cases would be determined by a judge alone. As the noble Lord, Lord Marks of Henley-on-Thames, has already articulated, there are problems that the clause presents when one addresses exactly what is meant by “lengthy”, for example, or “complex”. Indeed, we believe that just because a case may be lengthy or just because there may be some element of complexity, that is not an appropriate basis for excluding a jury. I note that these provisions are not supported by the Bar Council, for example, or, perhaps more significantly, the independent reviewer of fraud, Jonathan Fisher KC, who has concluded that there is no justification for removing juries from fraud cases.
I began by referring to the fact that these clauses would “initially” apply to cases of fraud because, of course, there is no guarantee that the provisions would stop with fraud cases. We will be addressing that in the next group of amendments when we come to look at the Henry VIII powers and the issue of using statutory instruments, which was touched upon a moment ago by the noble Baroness, Lady Jones of Moulsecoomb.
We recognise that there is a backlog in the Crown Court. We recognise that there is also a backlog of cases in the magistrates’ court. However, we do not consider that this provision—which, as the noble Baroness, Lady Jones of Moulsecoomb, pointed out, would have a miniscule effect upon Crown Court sitting times—is the way forward in order to resolve those backlogs.
Lord Lemos (Lab)
My Lords, this measure is about reducing the ask we make of members of the public. I think we can all agree that being required to serve on a jury, not for the typical two weeks but for months, could have significant consequences for someone’s personal and professional life, and the impact is likely to be worse for someone self-employed or with caring responsibilities.
Clause 3 follows a long line of similar recommendations made by distinguished judges and independent reviewers, including Lord Justice Auld, in 2001, and Lord Roskill, as far back as the 1980s. Fraud and financial crime have continued to evolve since then, becoming enormously more complicated and with vast volumes of digital evidence, which are still dramatically increasing. That means that, for a very small number of cases, we need a new model that is fit for the modern age.
In relation to the comments made by the noble Baroness, Lady Jones, I want to make it clear that we are not suggesting this is going to save an enormous number of court days or reduce the backlog. This is about the jury experience, as I said in relation to the last group; it is not about jury competence. We do not think that there will be many of these cases. This is not about who can understand dishonesty better but about reducing the burden on ordinary people’s lives from sitting on long trials, with which I am sure the noble Baroness, Lady Jones, would agree, at least in principle.
I agree that disclosure and the case management of fraud cases must improve, and this Government have agreed in principle to many of Fisher’s part 1 recommendations and others made by the noble and learned Lord, Lord Leveson. However, even after effective case management, some trials are likely to remain highly complex or lengthy. This is for those exceptional cases—and I stress the word “exceptional”.
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.
Church Appointments (Repeal of Discriminatory Provision) Bill
Tuesday 10th November 2026
(1 day, 12 hours ago)
Lords ChamberRead Full debate Church Appointments (Repeal of Discriminatory Provision) Bill 2026-27 View all Church Appointments (Repeal of Discriminatory Provision) Bill 2026-27 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Baroness Smith of Basildon
That the Bill be now read a second time.
The Lord Privy Seal (Baroness Smith of Basildon) (Lab)
My Lords, it is a privilege to open today’s debate on this short, straightforward but important Bill, which comes to this House following its passage, with cross-party support, in the other place. The purpose of the Bill is simple: it removes historic legal barriers that prevent individuals who profess either the Roman Catholic or Jewish faiths advising the sovereign on certain Church appointments or making such appointments in their own right where their office gives them that function.
It would be helpful to look at the historical context, because I know this House has a deep appreciation for our constitutional history. To understand why the Bill is necessary, we must briefly look back at where it all began. Following the Reformation, it was widely believed that religious unity under the Church of England was essential for maintaining peace and security. As a result, a number of restrictions were imposed on worship outside the Church. Parliament only gradually removed these restrictions, as well as limits on the role of non-Anglicans in public life.
In the 19th century, Parliament passed the Roman Catholic Relief Act 1829 and the Jews Relief Act 1858, removing many of the long-standing restrictions on the participation of Catholic and Jewish people in public life. Those Acts were major steps forward to establish the rights and freedoms of Catholic and Jewish citizens. However, these Acts also retained certain restrictions on some of their rights and freedoms. Those are the provisions with which the Bill is concerned.
During the Bill’s passage in the other place, Members reflected on that longer history of emancipation and reform, invoking great figures such as Daniel O’Connell and recalling the constitutional importance that earlier generations attached to these questions. As William Gladstone recognised in his own efforts to dismantle remaining religious tests in public life later in the 19th century, maintaining statutory discrimination against specific faiths is incompatible with a modern, representative democracy.
Over the past two centuries, successive Parliaments have slowly but surely removed almost all the remaining restrictions imposed on the holders of political office as and when needed. I recall being a Member of the other place when, in 2001, Parliament removed the restriction on Catholic priests to sit and vote in the House of Commons. The late David Cairns then became an MP, having previously been a Catholic priest. Most recently, noble Lords will recall our debate last year, when Parliament passed legislation to ensure that Lady Elish Angiolini could become the first Roman Catholic to hold the office of Lord High Commissioner to the General Assembly of the Church of Scotland. I also confirmed in that debate that further legislation would follow, and a number of noble Lords, including the noble Lord, Lord True, the Leader of the Opposition, welcomed such small, focused Bills to address this issue.
The specific provisions restricting advice on Church appointments remained on the statute book not out of deliberate policy but simply because they had never been tested by reality. It may seem surprising, due to the diversity of our country, that until now we have never had a Prime Minister who professed the Catholic or Jewish faith. Nearly two centuries since those 19th century emancipation Acts were passed, the House is now asked to remove from the statute book provisions that discriminate between faiths in a way that cannot be justified today.
Under Section 18 of the 1829 Act and Section 4 of the 1858 Act, individuals professing the Roman Catholic or Jewish faiths are restricted from advising the sovereign in relation to certain Church appointments. Until this year, those provisions had not had a practical effect on the exercise of prime ministerial functions. Following the appointment in July of a Prime Minister who professes the Roman Catholic faith, they now do.
To ensure that Church appointments could continue without interruption, the Government have put in place temporary administrative arrangements so that the relevant responsibilities are currently exercised by the Lord Chancellor. However, it would not be right or proper to continue these interim arrangements indefinitely. In the 21st century, one’s religious beliefs should not be a barrier to carrying out the full constitutional responsibilities of political office. The Prime Minister is the sovereign’s principal adviser and must be able to advise on all matters.
I am particularly aware, looking to the Lords spiritual—I am pleased to see the right reverend Prelate the Bishop of Manchester in his place—that any legislation touching on the relationship between Church and state requires careful consideration. I therefore want to make it clear that this is a narrow Bill. It does not reopen wider questions about establishment, nor does it alter the constitutional relationship between the Crown, the Government and the Church of England.
The Bill proceeds instead from a simple proposition: that where the Prime Minister has a constitutional role in advising the sovereign, the law should not single out Roman Catholic and Jewish people alone and prevent them undertaking that role. That is especially clear when the law has never prevented Prime Ministers of other faiths, other Christian denominations or no faith providing such advice.
Questions were raised in the other place about the precise nature of the Prime Minister’s role in Church appointments, including the appropriate level of involvement. The Government’s position, as set out in response, is that although, in practice, the Prime Minister does not generally take an active role in selecting clergy, it remains an important constitutional principle that the Prime Minister, as the sovereign’s principal adviser, should be able to advise on these matters without discrimination on grounds of faith.
The Bill achieves this through two short clauses. Clause 1 repeals Sections 17 and 18 of the Roman Catholic Relief Act 1829 and repeals the Jews Relief Act 1858 in its entirety. In doing so, it removes the statutory restrictions on Ministers advising on or making Church appointments. It also removes outdated restrictions relating to rights of patronage exercised by officeholders such as the Lord Chancellor. Crucially, it removes the restrictions affecting Roman Catholics and Jews in the same way, ensuring parity and equal treatment. Clause 2 deals with the extent, commencement and short title. The Bill extends across the United Kingdom and will come into force on Royal Assent.
Finally, as I mentioned, last year we passed the Church of Scotland (Lord High Commissioner) Act to resolve a similar historical anomaly. With the passage of the Bill before us, I assure the House that the job is complete. There will be no remaining statutory religious restrictions affecting Ministers and other individuals appointed by the Crown, and we are entirely confident that no further action of this kind will be required.
This is a simple, straightforward and short Bill. Although it will take up only a few lines on our statute book, it will remove an outdated, archaic and unacceptable restriction. It will ensure that our constitutional arrangements reflect a modern, equal society where no Prime Minister, now or in the future, is restricted from advising the sovereign simply because of their faith. I hope the Bill will receive support from all sides of the House. I beg to move.
Baroness Bottomley of Nettlestone (Con)
I am pleased to support the Bill and am especially pleased that it has the support of the Church of England, although I wait to hear from the right reverend Prelate—perhaps I will be corrected. Rightly, it has attracted support from across the political spectrum.
My involvement in the Church of England and its organisations has been various. In the 1990s, while the Prime Minister, John Major, handled the archbishop appointments, I was the Secretary of State handling the bishops’ and other appointments because the Home Secretary, Michael Howard—now my noble friend Lord Howard—was Jewish. I was brought in to handle those. Indeed, that included presenting my respected friend, the noble and right reverend Lord, Lord Chartres, to Queen Elizabeth on his appointment as Bishop of London. I was a lay canon at Guildford Cathedral for many years, when Victor Stock served as dean. In my executive search capacity, I have assisted with the selection of a great number of non-clerical roles for the Church of England. Before that, I was on the council of the Church of England Children’s Society.
I came to have enormous admiration for the Church and for the seriousness with which it approaches the selection of those who are to take on leadership roles. An ecclesiastical appointment is quite unlike most others. Of course, the qualities of leadership matter, but there is something more profound involved. A bishop is being entrusted with the spiritual life of a diocese, with the pastoral care of its people and with the responsibility of representing the Church in the wider community. I find the process of discerning who might best fulfil that calling unique.
I am a strong supporter of the Church of England and its established position. I believe its relationship with the Crown and with Parliament is a central part of our national life, and one which serves this country well. It is not the subject of our debate today, but I really do welcome the Lords spiritual—although I would like them to remove their white gowns. I think they would look more appropriate if they just wore purple; only the person presiding over Prayers needs to wear a white gown—the Bishops know my view on this.
The Church has a presence in communities where few other national institutions remain. Its schools educate children from every background—and extraordinarily well; all my grandchildren went to Church of England primary schools. Its clergy are often among the first people called upon when a community experiences tragedy. When there is some terrible train, football or other disaster, it is almost always the Anglican priest who is called as the community leader. The contribution the Church makes to our national life extends far beyond those who attend church on a Sunday, as we all witnessed so clearly yet again on Remembrance Sunday.
I want to see this position protected and I am reassured that the Bill does nothing to undermine it. The legislation before us addresses an extraordinary historical anomaly. As the Leader said, the Roman Catholic Relief Act 1829 and the Jews Relief Act 1858 were, in their time, important advances in religious freedom, yet both retained restrictions preventing Roman Catholics and Jewish people advising the sovereign on appointments to the established Church. The penalties attached to these provisions were severe, including permanent disqualification from holding office under the Crown. It is striking that such language remains part of our law nearly two centuries later.
There is an interesting Conservative history to this. It was the Duke of Wellington, working with Sir Robert Peel, who secured Catholic emancipation in 1829, despite enormous opposition. Neither man was naturally inclined towards radical constitutional change. They understood, however, that there comes a point when an established institution is served better by reform than by the preservation of an injustice. I think there is something in that for today’s debate.
The present position is plainly tough to defend. A Prime Minister who is Muslim, Hindu or of no religious faith may advise the sovereign on Church appointments, but a Prime Minister who is Roman Catholic or Jewish may not. We cannot defend that. Of course, this has become a practical issue under the present Prime Minister, who has had to make alternative arrangements for the discharge of this responsibility, in the same way that my noble friend Lord Howard did in my time. I cannot see any reason why someone should be prevented from carrying out a constitutional duty of their office simply because of their religious faith.
Let me spend a moment on the appointments process itself, because I suspect that this is where some of the concern about the Bill may arise. The relationship between the Prime Minister and the Church in these matters has changed significantly over the years. It was not always thus. Gladstone thought the most important part of his job as Prime Minister was appointing bishops. Palmerston packed the Bishops’ Benches with Low Church evangelicals. I am looking forward to my noble friend Lord True giving us some very interesting Trollope as background; I hope he has done his homework. More recently, Margaret Thatcher had distinct views on, and her favourites in, the Church of England. John Major was restrained in his interventions —this was the time when I was supporting the process of bishops’ appointments but not archbishops’. Tony Blair was the last PM to exercise the power of veto. Gordon Brown ended the veto, in effect.
In 2007, following agreement between the Government and the Church, the arrangements were revised so that the Church’s own selection process became decisive. The Crown Nominations Commission now identifies the preferred candidate for an archbishopric or diocesan bishopric. The Prime Minister’s responsibility is to advise the sovereign on the appointment. It is a constitutional function, rather than an opportunity for the Government to choose whom they would prefer—tempting though that might be.
Having been involved in these appointments, I recognise how much thought the Church gives to this question. It is a particular characteristic of the Church of England: its breadth, its involvement in the wider community. Many people find a home in the Church of England, despite often disagreeing and having profoundly different views and prejudices, almost.
I believe strongly that the Church of England must continue to lead in the appointment of its bishops. I was pleased to read the statement by the Church Commissioners confirming that the Bill will leave the arrangements agreed in 2007 entirely unaffected. The same process will apply whatever the religious beliefs of the Prime Minister. A Prime Minister who belongs to the Church of England has no greater personal discretion over the choice of candidate than one who belongs to another faith.
The Bill also leaves untouched the position of the sovereign as Supreme Governor of the Church of England. It does not affect the requirement that the sovereign be in communion with the Church and safeguards the position between Church and state.
I welcome the Bill. It removes discrimination. It is a great step forward and I add my support.
Lord Wallace of Saltaire (LD)
My Lords, I must add to the noble Baroness’s very interesting speech that Tony Blair, the last Prime Minister actively to be involved in the appointment of Church of England bishops, had a Roman Catholic adviser on faith, Francis Campbell, who later became the first Roman Catholic to be our representative at the Vatican.
The Bill reflects how far Britain has come from its historical anti-Catholic foundations. We still celebrate the Glorious Revolution of 1689 and its Bill of Rights, although we have forgotten the latter’s strongly anti-Catholic language, which states that
“it hath beene found by Experience that it is inconsistent with the Safety and Welfaire of this Protestant Kingdome to be governed by a Popish Prince or by any King or Queene marrying a Papist”.
We have also forgotten that Bonfire Night is an anti-Catholic festival.
As a Liberal, I rejoice that this country has in my lifetime become so much more tolerant of different approaches to faith or lack of faith. When I was a chorister at Westminster Abbey, we were all aware of political appointments within the Church of England, not only of bishops: one of our canons, it was whispered, had been appointed, controversially, by Ramsay MacDonald; and then of course there was the “Red Dean” of Canterbury.
I absorbed an instinctive suspicion of Roman Catholics from the children’s books I read; in particular, those of Charles Kingsley, an Anglican priest as well as a professor of history at Cambridge. The first Catholics I met, however, were the choristers of Westminster Cathedral when we played them at cricket.
In the past half-century, we have made great strides towards understanding and tolerance, not only among the different Christian denominations but towards other faiths. In 1953, the Cardinal Archbishop of Westminster preferred to watch the Coronation procession from a gallery outside Westminster Abbey, rather than directly witnessing this heretical ceremony. Fifty years later, his successor read the first lesson at a service commemorating the Coronation, with representatives of Britain’s other faiths sitting in the transept in front of him. Not long thereafter, the Pope himself visited the abbey, and one of those who welcomed him was the abbey’s first female canon.
Therefore, this short Bill marks another small step towards a more open and mutually tolerant national society. Our Prime Ministers are drawn from diverse backgrounds. The relationship between the Church of England and the state is a dynamic one, which changes as our society evolves.
My party has long been in favour of disestablishment and carried that through in Wales and Ireland. I remain an antidisestablishmentarian because, like the noble Baroness, Lady Bottomley, I see this as a national Church, involved in local communities and playing the role of a national Church in the most inclusive way that it can. It represents our Christian heritage and the values that that has embedded in our democratic life.
The relationship between politics, religion and identity is contested and complicated. As the noble Baroness, Lady Bottomley, said, Margaret Thatcher was shocked, as Prime Minister, that the Archbishop of Canterbury included a prayer for the Argentinian dead in the thanksgiving service after the Falklands War, and she later intervened to block bishops who might be as forgiving as him.
Danny Kruger, in the Commons debate on this Bill, condemned our current bishops as “left wing”, while Sir Edward Leigh accused them of spouting “woke rubbish”, but it is the responsibility of faith leaders to remind us of the values that underpin society, even when the message is uncomfortable. I first learned about political values, I think, from listening to sermons in Westminster Abbey on the social message of the Christian gospel. The current Pope, like his predecessor, reminds his flock and the political leaders whom he meets that the poor and the marginal deserve help and respect. I am sorry that some consider such a message left wing or woke.
We have not entirely lost the prejudices against outsiders and heretics that marked previous generations. Elements of antisemitism still drift around the edges of our society. Prejudices against Muslims have replaced prejudices against Catholics and Jews, and there are some politicians who are twisting the Christian faith to promote nationalist and racialist division in Britain, the United States and elsewhere. Happily, our Church of England is a broad church and works hard to be inclusive. I have sat next to the president of the Bradford Council for Mosques in Bradford Cathedral and I have listened to the choir of the Belsize Square Synagogue in Westminster Abbey at a service in which the noble Baroness, Lady Neuberger, gave the sermon.
Mutual tolerance and interfaith dialogue play an important part in holding our diverse national community together. This Bill takes us a step further in that direction by removing now archaic discrimination against Jewish and Catholic Prime Ministers. It leaves us with a set of arrangements for Church and state that are a bit eccentric and still rely on conventions and understandings to work successfully, but that is how our unwritten constitution is supposed to work.
Lord Birt (CB)
My Lords, I fear I will strike a slightly different note. I welcome the Bill and particularly the use of the word “discriminatory” in its title, but I will take this opportunity to ask why we cannot go further and completely eliminate ancient, archaic religious discrimination or favour from every part of the UK’s constitutional settlement.
More than 200 years ago, in 1787, the newly independent United States embraced a constitution that affirmed that religious affiliation should never be a requirement of public office. More than 100 years ago, in 1905, our neighbour France separated church and state, and there is no religious barrier or privilege in the constitutional frameworks of Germany or Italy. Iran is the only country in the world, besides the UK, that embeds clerics of one religion in a position of political power. Half the members of Iran’s highest legislative body are clerics appointed by the Supreme Leader.
Bishops appointed by right to this House represent only one faith and only English dioceses. As we are all well aware, bishops from Scotland, Wales and Northern Ireland have no representation in our ranks. This is surely wholly inappropriate in a modern Britain of many faiths and no faith.
The most telling data about real religious conviction in the United Kingdom comes from Scotland, where humanist marriage, unlike in England, is legal and where couples of any faith and no faith can exercise real choice about where and how they marry. With that choice, nearly half of Scots choose a civil wedding, 30% choose a humanist wedding and only 5% opt for the Church of Scotland, which, of course, is part of the Anglican Communion. The final 20% of Scots marry according to other religious faiths.
Lord Birt (CB)
I am sorry, but the right reverend Prelate is speaking after me. I ask him to say whatever he wants to say then, as I am making an argument.
There can be no case, in a country of many faiths and no faith, for a single English Church to be embedded in our Parliament, although I stress that clerics of distinction of any faith—I have encountered many in my life and, indeed, in this House—would always be welcome in this House as individuals of merit.
Finally, I am a strong believer in the monarchy as a unifying institution, representing and articulating our highest and most consensual values, but in modern Britain we should not maintain a requirement from the Bill of Rights 1689 that the monarch cannot be a Catholic but rather must be a Protestant and in communion with a Church from only one part of the United Kingdom.
All this is an unwelcome tangle, a legacy of a troubled and divisive past well captured in the Leader of the House’s opening remarks—a past spread over many centuries. Does the noble Baroness the Leader of the House agree that it is now time to consider how that legacy can be disentangled and to identify exactly how we can best secularise the British state and constitution?
The Lord Bishop of Manchester
My Lords, whether or not my robes add to or, as the noble Baroness, Lady Bottomley, asserts, detract from my contribution to the debate, I am pleased to speak in support of the Bill. I hope that my words will not be deemed left wing or “woke rubbish”, whatever may have been said of bishops in another place, or archaic, as the noble Lord, Lord Birt, just averred. I can, however, assure the noble Lord that I am no ayatollah. As he would not give way a few moments ago, I also need to assure your Lordships’ House that the Church of Scotland is not part of the Anglican Communion. Indeed, it does not have bishops.
This is a modest but important Bill that brings our constitution to closer alignment with the values of modern Britain. The restriction preventing those who profess the Catholic or Jewish faiths from advising the crown on church appointments has its origins in a very different period. I and other Christians believe that God created humans equally and in his own image, each of us with inherent value and purpose. In a democracy, this is reflected in equal opportunity for participation in public and civic life—a right that must be defended regardless of faith or creed. The strength of our UK democracy is derived from the unique diversity of its participants.
As a Member of this House, it is my proud vocation to support the interests of thriving and vibrant communities right across the diocese of Manchester. Manchester is a place where people of all faiths and none come together to participate in community life. If our democracy and communities are to continue to thrive, there can be no justification for retaining the discriminatory provision that the Bill seeks to repeal. That is why I am so pleased to support it. Indeed, it is precisely these principles that it is the duty of the established Church to uphold—a duty that is facilitated all the more by the unique relationship with the state that it has had since Reformation days.
In practice, the appointments process for bishops will be unaffected by this Bill. The process is, as the noble Baroness, Lady Bottomley, assured us, led by the Church. Although the Prime Minister’s role in advising the sovereign is a constitutional duty, it does not, and has not now for quite some time, involve the exercise of personal choice between different candidates.
However, that does not mean that the Prime Minister and his office are out of the picture. Their interests, on behalf of the nation, are represented on the Crown Nominations Commission through the Prime Minister’s appointments secretary. This person, though a non-voting member, is fully involved in the wide-ranging consultations that take place ahead of a nomination, and is present and able to participate fully in the conversations that take place during the commission’s meetings. I have every confidence that Manchester will be much blessed over the coming months, as I head towards my retirement, by the involvement of the Prime Minister’s appointments secretary in helping the city of Manchester and its surrounds to identify the right person to be the next bishop for that diocese.
Considerable Downing Street involvement at that stage in the process is the proper route to ensuring that candidates can serve wider society at both diocesan and national level, while also serving the structures of the Church. I have been through these processes myself, 13 years ago. No process is perfect, but I think they are at least as robust as those by which Lords temporal arrive in your Lordships’ House.
Once a name has emerged, with that Downing Street involvement, the secretary will convey it, together with a detailed rationale for the nomination, to the Prime Minister. The PM then seeks the assent of the nominee, before concluding it by forwarding the nomination on to the Crown. Those final processes may be formal, but they remain important because they are an expression of the constitutional relationship between Church and state. They do not require the Prime Minister personally to espouse any faith. Indeed, they are neither strengthened nor weakened by the religious affiliations of the person who happens to hold that office on any particular day.
This establishment relationship is not designed for the Church of England to secure special privileges for itself. The established Church exists to serve people of all faiths and none; to create space for freedom and coexistence; to build bridges across diverse communities; and to encourage a mutual sense of responsibility to our neighbours, our communities and the wider world around us. I am not sure that that is what the ayatollahs in Iran do. In my diocese, I have chaired the Greater Manchester police ethics committee, a large housing association, the Manchester Homelessness Partnership, the GM faith and community leaders group and numerous other non-Church bodies. I will not even go into the things I have done at national Church level. My local church has worked to inspire social action, to foster belonging and to protect the free practice of all faiths in the UK.
Beyond the appointment of bishops, as we have heard, there are certain other ecclesiastical appointments, such as to Crown livings, that may belong, primarily by patronage, to the First Lord of the Treasury, the Lord Chancellor or some other government or parliamentary officeholder. In practice, Downing Street officers exercise those functions on a day-to-day basis and take an active part in the proceedings. I or any of my colleagues—my right reverend friend the Bishop of Norwich is here with me—would be glad to bore noble Lords in the bar on some other occasion if they have interest in that amount of detail, but I would argue that it does not present your Lordships with any matters of concern. It is through its relationship with the state that our established Church is uniquely empowered to fulfil this vocational service.
The repeal of this discriminatory provision will strengthen not only the important relationship between Church and state but the constitution itself, by better reflecting the principles of religious freedom and equal citizenship. I welcome the opportunity to support this Bill tonight.
Lord Moylan (Con)
My Lords, I do not wish to sound curmudgeonly or to cause any offence. I am speaking entirely personally, of course, and as a Roman Catholic. While I do not actively oppose the Bill to the point of wishing to table amendments to it in Committee, I am not entirely supportive of it either. The noble Baroness the Lord Privy Seal said that it was a narrow Bill and I propose to treat it narrowly and look at what it says, unlike some other noble Lords who have helpfully and illuminatingly spread their speeches across a broader canvas.
My first concern is to do with rushing constitutional legislation through Parliament. There is no need for this rush. We have had too much constitutional change over the last 30 years—too much of it ill considered and some of it rushed and not properly connected. A great deal of it should be reversed. Here we have another pattern of rushing ahead with a piece of constitutional change. I will come back to this question, but what is the reason for the rush? The Explanatory Notes say that it is because the Prime Minister is a Catholic. He is on the verge of exercising his constitutional duty and, if we do not pass this legislation, he will be precluded from exercising it.
So what change is the Bill going to make? We have already had it explained to us that, in effect, the Prime Minister acts as a postbox between a careful and cautious selection process carried out by the Church of England on the one hand and the monarch on the other. Is all that is going to happen that the postbox moves from one desk to another? If so, I ask myself, what is the import of the religious denomination of a postbox? It seems to me of no significance whatever. On the other hand, it is possible that there will be change. We have not explored this question because the arrangement reached with no public consultation—this is part of a pattern—by Gordon Brown that changed our constitutional arrangements on this matter is something that could be reversed. If it were to be reversed, I can see that the Prime Minister would be doing something where the denomination of the person doing it could have some significance. We have not quite been told: is there any intention to change current practice? If there is no intention, given that the function is essentially no more than a postbox, what is the rush?
No Catholic, as far as I am aware, has called for this change. This would be nowhere in the list of priorities that Catholics would like to see Parliament engage with, ideally on an urgent basis. Off the top of my head, there are about half a dozen things that I could think of, but one instance would be a greater level of support for our Catholic schools and their expansion. That would be highly appreciated by Catholics, since they suffer to some extent from a rather suspicious eye cast on them by a secular bureaucracy. That would be a priority for the Catholic Church, but this would be nowhere. No sensible Catholic would ever want to be involved in appointing Anglican bishops. I am not sure who would.
I say no Catholic would want to, but there is the possibility that there is one Catholic who has been asking for this to happen. The Prime Minister has said that he professes the Catholic faith. We do not entirely know how much he is personally the driver behind this Bill because, as the noble Baroness said, the process could easily be said to have been set in hand back in March 2025—it is part of a process. But then again, where is the urgency coming from in all of this?
I turn to what I think were the original intentions of those who made the legislation in the 19th century when they admitted Catholics to Parliament for the first time in a couple of hundred years—I will come to Jews later, if I may. Essentially, the Test Act that excluded Catholics was the post-Titus Oates one in the 1670s. Catholics could sit in Parliament until then. Then it was reversed in 1829, as has been recounted. I think the original intention was to try to ensure that, from that point, the monarch would still be advised by someone who was of the Anglican faith, or at least a Protestant Christian. Nobody at that time—it was a failure of the imagination, if you like—could conceive that there might ever be a Hindu or a Muslim Prime Minister. In 1829, Jews were still excluded from sitting in Parliament. In fact, atheists were also excluded until well into the 19th century and the Bradlaugh case. They were excluded by the oath because they could not take it, and the Charles Bradlaugh case changed that. In 1829, there was no prospect of an atheist Prime Minister any more than there was, in practice, of a Hindu or a Muslim Prime Minister. So the idea that you preserve the role of advising the monarch on Anglican appointments to an Anglican Prime Minister and adviser, or at the very least, a Protestant Christian, seems to me to be a sensible one.
The Bill, rather tendentiously, includes “Discriminatory” in the Short Title, but is it discriminatory? We discriminate all the time. It is bad and reprehensible discrimination if we exclude someone on grounds that are irrelevant, such as saying they cannot vote because of the colour of their skin, but is it really discriminatory to say that somebody advising on Anglican matters should be an Anglican? That seems pertinent to me.
None of my remarks relate, of course, to people of the Jewish faith, and I look forward to hearing my noble friend Lord Wolfson on that. However, I have some concerns, and I hope that some of my questions might be answered.
Lord Murphy of Torfaen (Lab)
I very much like listening to the noble Lord, Lord Moylan, but I cannot agree with him on this occasion. He says that no Catholics want this change—well, I am one who does, although I do not personally expect to benefit from it.
Some 24 years ago, Tony Blair appointed me to become Northern Ireland Secretary, and of course I was a Catholic then as I am a Catholic now. My predecessor, my noble friend Lord Reid, was the first Catholic Secretary of State for Northern Ireland. It had been the convention ever since the creation of that office that a Catholic should not occupy it, for obvious reasons, but the world had changed by 2002. In fact, when I was Secretary of State, the late Ian Paisley used to call me the Apostle Paul, and that would not have been said 30 years before—something much more robust would have been the nature of his commentary then on a Catholic Secretary of State.
I very much support this Bill, because 200 year-old Acts of Parliament really need to be repealed for the Catholic and Jewish communities in our country. When you look back on the religious faith of quite recent Prime Ministers, Harold Wilson was a Methodist; Jim Callaghan, despite his name, was a Baptist; Mrs Thatcher started out as a Methodist and became an Anglican, and, as we have heard, was very interested in appointing bishops; Rishi Sunak was a Hindu; and Keir Starmer was an atheist. However, all of them had the right to appoint Anglican bishops, even though none of them, perhaps with the exception of Mrs Thatcher, is likely to have taken it that seriously. Since 2007, quite rightly, it is for the Church of England itself to determine who should be the bishops and the archbishops.
When I discussed on many occasions these matters in the other place, I reminded my fellow Members of Parliament that I was a Welshman representing a Welsh constituency, where the Church is disestablished. I therefore excused myself from taking part in legislation, for example, on women priests, on the basis that, first, I was a Catholic and, secondly, I was a Welsh Catholic and the Church is disestablished. However, I made it absolutely clear down there, as I do in this place, that I believe that the presence of the Church of England Bishops in this Chamber is a good and right one. They bring great wisdom and compassion to this place, always contributing excellently to our debates. I am personally in favour of the continuance of the Bishops of the Church of England in the House of Lords.
I must say that it has taken too long for this legislation to emerge. It may be a little too quick for the noble Lord, Lord Moylan, but it is absolutely the right thing to do. I hope it goes through quickly and that perhaps, in years to come, any remaining archaic legislation shall be dealt with in a similar way.
Lord Wolfson of Tredegar (Con)
My Lords, I welcome the opportunity to follow the noble Lord, Lord Murphy of Torfaen. I welcome this short Bill, but sometimes the shortest Bills close the longest chapters.
The Jews Relief Act 1858 was a landmark in the emancipation of British Jews. My own family came to Britain after its passage, settling in Tredegar, just up the road from the birthplace of the noble Lord, Lord Murphy, in the south Wales valleys, and, within a few generations, one of their descendants could sit in this House and serve as a Minister of the Crown. The Act therefore marked a decisive change in the relationship between the Jewish community and the state. It represented not merely toleration but the promise of equal participation in the public life of this country. That is a story about this country of which I am immensely proud, but Parliament had not quite finished the job.
Section IV of that Act still prohibits anyone “professing the Jewish Religion” from advising the sovereign “directly or indirectly” on certain Church appointments. The penalty for doing so, as my noble friend pointed out, is “a high Misdemeanor”. It carries permanent disqualification from any Crown office, both civil and military, and the prohibition is in very sweeping terms. It is not confined to a Prime Minister tendering advice to a sovereign; “directly or indirectly” would reach advisers and other Ministers involved in the process.
This is not merely a historical curiosity. When I served as a Minister at the Ministry of Justice, my responsibilities included the Crown dependencies. However, because I am Jewish, I could not advise the Crown on appointments of Anglican clergy in the Crown dependencies. I therefore have the unusual distinction of having been personally inconvenienced by an Act of Parliament passed in 1858. It is an odd experience to find that a provision enacted in the middle of the 19th century still has a practical bearing on the duties of a 21st-century Minister. That illustrates why the repeal of obsolete discrimination is more than a matter of tidying up the statute book.
The serious point is that discriminatory laws matter even when they are rarely invoked. The objection is not that this law is old; many old laws are actually good laws. It is that the law makes a person’s religion determine whether he may discharge the responsibilities of a secular office. The anomaly, as we have heard, is striking. A Muslim, Hindu, Sikh or atheist Prime Minister may advise, but a Jewish or Catholic Prime Minister cannot. Of course, Disraeli himself, our first Prime Minister of Jewish birth, escaped the strictures of this Act only because, as a child, he was converted to Anglicanism. As a matter of short interest—I do not have time to go into it—that was because his father had fallen out with the local synagogue. Some things do not change. It illustrates that the distinction was not only, so to speak, between Jews and Catholics and others; the distinction was even between somebody born Jewish but who later converted to Anglicanism and somebody who continued to profess the religion of his ancestors.
There is an important constitutional distinction as well. The Church is perfectly entitled to impose religious qualifications for religious office, but advising the sovereign is a constitutional responsibility of the Prime Minister, not a spiritual function, and the religion of the officeholder should not determine whether that responsibility may be discharged. There are respectable arguments to be had about the proper place of politicians in church appointments and about an established Church itself. Neither question is raised by this Bill and neither needs to be resolved this evening. The short point is this: so long as Parliament gives the function to the Prime Minister, it cannot sensibly make its exercise dependent on whether the Prime Minister is Jewish or Roman Catholic, or neither.
When the late Lord Sacks of blessed memory was Chief Rabbi, he was a notable defender of the established Church. He memorably compared the Church of England to the host at a cocktail party whose responsibility it is to make everyone else feel at home. The serious point is that he believed, as I do, that minority faiths are at home and flourish best not in a society which banishes religion from public life but in one which gives faith a recognised and respected place. For him and for me, the establishment of the Church of England is not a threat to religious minorities but is, in fact, a protection for them. He also argued that establishment could secure a place for religion in the public square for the benefit of faiths beyond the established Church, which is a very important point.
The provisions by which the 1858 Act achieved Jewish emancipation have all long since been superseded or repealed. The Promissory Oaths Act 1871 removed restrictions on Jews holding public office. The Patronage (Benefices) Measure 1986 repealed the earlier part of Section 4, concerning rights of presentation to ecclesiastical benefices. The point of the present Bill, therefore, is not to undo emancipation, but rather to remove the last discriminatory remnant of the legislation that helped to achieve it. I therefore have just one question for the noble Baroness the Lord Privy Seal, which might in fact be the easiest question I will ever ask her. The Bill repeals the Jews Relief Act 1858 in its entirety, as she said. I ask only, given the Act’s historical significance, will she therefore expressly confirm that its repeal removes no surviving right or protection enjoyed by Jewish citizens, but instead removes the last remaining disability imposed by that legislation?
The Jews who came to Tredegar, including my family, sought a country in which their religion would not determine the limits of their citizenship. The 1858 Act had been a great step towards fulfilling that promise, but Parliament had left the job unfinished. This Bill, nearly 170 years later, completes that job.
Lord Barber of Chittlehampton (Lab)
My Lords, I speak warmly in favour of this historically significant Bill and follow some remarkable and distinguished speeches. I start with an aside. My noble friend the Lord Privy Seal and I have had a debate about the number of pages per Bill, which has grown remorselessly over the last 70 years. I am glad to congratulate her on introducing a Bill that will bring the average down.
As we have heard, we are amending the Roman Catholic Relief Act 1829 and the Jews Relief Act 1858. Both, at their time, were significant advances in toleration. Catholic emancipation, as we have also heard, had been a major theme of controversy going back decades, but every time proposals reached anywhere near this Chamber, they ran into the formidable barrier of that strong English Protestant identity going back to the Armada.
What changed in 1829 and ensured that the Roman Catholic Relief Act reached the statute book were two things. First, the great Daniel O’Connell, who they called the Liberator, had run a huge and peaceful campaign over the previous years among Catholics, largely in Ireland. He won a by-election in County Clare in 1828 on the issue of emancipation, but, under the existing laws, of course, was unable to take his seat in Parliament. Secondly, the Duke of Wellington, revered victor of Waterloo and, by 1829, the Prime Minister, feared civil war in Ireland unless the law changed. Such was his authority at the time, along with Peel’s, that he was able to turn a deeply held Tory opposition to change into reluctant support, so the Bill passed.
However, as Wellington said in introducing the Second Reading, he was committed to a Church of England monarchy, which in his view meant that the advice that the monarch received on Church matters needed to be from people who explicitly shared that faith—hence the sections of the Act we are repealing today. Even so, at the time, not everyone in this Chamber backed the Bill. The Bishops at the time were divided. Both Archbishops opposed the entire Bill because, as the Archbishop of Canterbury put it, it was their “duty” to protect the Protestant religion.
As soon as the Bill had passed, Daniel O’Connell, to his credit, began advising British Jews on how they might make similar progress. It took a while, but ultimately was far less controversial. Thus, today we are completing that process of Catholic and Jewish emancipation—surely a proud moment for all of us.
The passage of this Bill today would signify three ways in which our society has changed wholly for the better in the two centuries since 1829. First, the Church of England itself has changed radically. Not only is the Archbishop of Canterbury a woman—unimaginable to the Duke of Wellington—but throughout the institution, as we have heard, there is an openness to and inclusivity of diverse perspectives. In addition, since Faith in the City in 1985, and even as far back as William Temple, the Archbishop of Canterbury in the 1940s, the Church of England has become a regular advocate of social change. In my time working in the Blair Administration, working with the Church of England on the biggest expansion of Church of England provision of education for many years was a great privilege and pleasure.
The second change is that, in parallel, our whole society has also changed radically for the better. Over the decades, first of all, intolerance became tolerance, and then tolerance itself was replaced by an active commitment to diversity and inclusion, as in today’s Bill. We should be collectively proud of that and resist any signs of retreat from it. By the way, responding to the noble Lord, Lord Birt, with whom I had the privilege of working in past years, I would not swap what they have in the US, France, Germany or Italy for what we have here, for the relationship between the Church and state and for the diverse and inclusive society that, for all its faults, we have been able to build.
Thirdly, in passing this Bill, we can congratulate our current Prime Minister, Andy Burnham, on successfully defying his distinguished predecessor the Duke of Wellington. As Daniel Maclise’s epic painting in the Royal Gallery over there illustrates, not even Napoleon managed that. I like to imagine that, somewhere beyond his grave in Dublin, there is a gentle smile this evening on the lips of the Liberator, and I commend this Bill to the House.
Lord Purvis of Tweed (LD)
My Lords, it is a pleasure to follow the noble Lord. We are debating what may become the first Act of Parliament under Prime Minister Burnham, which is perhaps appropriate given the personal nature of it.
This has been a characteristically interesting debate. I knew that it would be, given the speakers’ list. I enjoyed the curmudgeonly contribution from the noble Lord, Lord Moylan. I am a beneficiary of the Oaths Act 1888, which he referred to. However, I did reflect on the fact that he said it was a rushed measure, which the noble Lord, Lord Murphy, referred to. In my experience, criticism of change is often levelled by those most reluctant and resistant to it. They say it is not the right time or that it is rushed or premature—only to find out, after a little bit of research, that it was previously debated in 1869. In the debate we had not long ago on breaking the automatic right of someone with a peerage to sit in this House until they die, the criticism of haste was presented. I remarked that we had passed a resolution on this very aspect in 1910. Therefore, this Bill cannot by any reasonable measure be described as premature or rushed. It is appropriate. It is just 200 years out of date.
The noble Lord, Lord Wolfson, in his excellent contribution, was right to point out that, if discrimination is on the statute book, it still has an effect simply by being there, and we are rightly changing. The Leader of the House, in her excellent opening of this debate, said that we have been moving over time, slowly but surely. It was a bit more of the slowly than the surely. There was an excellent House of Commons briefing for the proceedings there. I liked a part of it which referred to a debate almost to the day a century ago. The House of Commons was debating Church of England legislation. George Lansbury said that the fact that
“a Jew, an infidel, a Turk, a Buddhist, a Christian Scientist, or a Theosophist may have the right to appoint these people when a Roman Catholic is not allowed this privilege … is perfectly absurd”.—[Official Report, Commons, 3/12/1926; col. 1575.]
That was 100 years ago. So, yes, we have been debating this for quite a while. He was right then. We are right now. Seeing the change is appropriate.
I live north of the border. I will not intervene on the previous discussion with regards to structure of the Kirk. However, for over 100 years, since the Church of Scotland Act 1921, we have had the spiritual, structural and organisational independence of the Kirk. I miss dearly my friend Lord Wallace of Tankerness, who found no distinction between his political, public and religious life as Moderator of the General Assembly. He to me was a model. We disagreed, because I am not spiritual, but I miss him deeply. I am sure that he will be turning in his grave when he hears what I am about to say with regard to disestablishmentarianism.
Interestingly, another of my predecessors as Liberal leader, Viscount Samuel, High Commissioner of Palestine, also was able to bring that public and religious combination together: a Jewish commissioner with a role in the appointment of the Grand Mufti and the Chief Rabbinate at that time. We can learn from history how there can be religious tolerance in organisations. However, fundamentally, I do not believe that faith should ever be the means by which we decide whether that person is fit to hold public office. The only reason why this Bill is needed now is that the Prime Minister of the day, whoever they are and whatever they believe, still plays a part in choosing bishops in the Church of England. It is establishment that creates the problem, not the discriminatory nature of the relief Act.
That is notwithstanding what my noble friend eloquently called his antidisestablishmentarianism. I have been waiting to say that word in Parliament, so I am glad to have the opportunity. His great sincerity highlighted the fact that there are some who believe that there should be establishment. I do not take that view. I believe that in our legislature there should not be reserved places for clerics. As the noble Lord, Lord Birt, said, we are anomalous in the world with regard to that. This is for another time, when it comes to the overall aspect.
Religion should always be an issue of private conscience and never a matter of public policy. I do not believe that the state is bound to profess a religion. Therefore, I do not believe that the political leader should advise on religious affairs, nor that clerics should have reserved places in a legislature. However, since we are not rushing that aspect, in the meantime this Bill needs to pass and we should remove this anomaly. The issue of the wider aspect is for another day, but I hope that day will come.
Lord True (Con)
My Lords, I enjoy bonfire night and am sorry that it is being supplanted by an alien American festival. I have never seen it as anti-Catholic.
I thank the Lord Privy Seal for setting out the purposes of the Bill so clearly. I agreed with almost everything that she said. The purpose is simple. It removes a discriminatory bar which applied to Roman Catholics but not to Scottish Presbyterians such as Ramsay MacDonald and to Jews but not to English Hindus such as my right honourable friend Rishi Sunak. It retains a role for the Prime Minister as the sovereign’s principal advisor on matters relating to the established Church. How far that role should run has attracted different opinions in this very interesting short debate, but, from the point of view of His Majesty’s Opposition, that role is important and should remain.
We have noted that the Prime Minister, unlike Tony Blair, is an avowed Roman Catholic while in office. Boris Johnson was baptised as a Roman Catholic, but confirmed as an Anglican—no doubt to the great spiritual joy of his loving brother in faith, the right reverend Prelate the Bishop of Manchester. There are, then, fluidities in these matters, but they are relevant only because of the past anti-Catholic and anti-Jewish legislation. With the passage of this Bill, which we on this front Bench support, they will be relevant no more.
That said, I know that some outside the House, and perhaps here, take a different view. They ask, as my noble friend Lord Moylan did glancingly in a typically thought-provoking speech, why politicians who are of no faith or profess other faiths, such as our previous two Prime Ministers, should have a say in critical matters affecting preferment in the Church, but the Anglican Church has been the established Church for five centuries.
The question of the established Church is an issue, as we have heard, that is long dear to many in the Liberal and Liberal Democrat parties and to humanists. Indeed, one of the first uses of the Parliament Act by Asquith was to force the disestablishment of the Welsh Church in 1914. We heard this position adumbrated again, honestly, by the noble Lord, Lord Birt—even though he brooked no intervention on his argument—and the noble Lord, Lord Purvis of Tweed, in his elegant submission. I respectfully disagree with both of them.
There is a role for an established faith at the heart of the nation, as affirmed by the noble Lord, Lord Wallace of Saltaire, in a thoughtful and very á point—can I say that in the House of Lords?—speech. It was also cogently expressed by my noble friend Lord Wolfson of Tredegar, who told us not only that had he been a target of the legislation we are appealing but of Chief Rabbi Sacks’s strong view on the place of an established faith at the heart of the nation. That was a view shared by the noble Lord, Lord Murphy of Torfaen, from a different perspective in his speech. I agree with them.
However, with establishment comes a core constitutional role for the sovereign as the Supreme Governor of the Church. It is his Church and the bishops are his bishops, as we are all summoned here as his temporal barons. The sovereign’s principal adviser must have the lead constitutional role in advising the sovereign in relation to appointments that lead, potentially, to membership of this House. The leadership of the established Church matters and there is a wider public interest in that.
The role of the Prime Minister, as some have said, used to be wider, and I for one do not rule out that issue being re-examined. Perhaps I can be curmudgeonly for a second, but we should reflect on this. Since the restriction of the Prime Minister’s role by Gordon Brown in 2007, average Sunday attendance has declined by 41% and average weekly attendance by 39%, despite the welcome uptick since the pandemic. In any organisation suffering with humility such losses, there must be legitimate questions about leadership and how it is selected. Bishops, after all, are pastoral leaders. Three times it was said, “Feed my sheep”. Is the present system working to promote leaders who are as keen to nurture our parishes and as effective in increasing the army of the faithful as they are in construing the details of social security regulations?
Why is the present system, however worthy, as my noble friend Lady Bottomley so brilliantly explained, so cumbersome? Recently, the Times reported that there are currently 12 sees vacant, not counting suffragan bishops. Liverpool has been vacant since July 2025 and Bristol since September 2025, although there are interims. Guildford has been vacant since we were all so greatly saddened by the death of Bishop Andrew in March. The process of replacement is advertised to complete next summer. Consultation, as we have heard, is fine, but why must it be so long? Is that conducive to the public good and the good of the Church? Since Catholicism is in the air this evening, it is reasonable to point out that Pope Leo XIV was elected 17 days after the death of his predecessor.
I do not expect the noble Baroness to have the answer to this question this evening, although I would be grateful if she could place a note in the Library, as it is relevant to the question of the role of the Prime Minister. Can she tell the House how many of these delays in new appointments arise because appointments are being held up on a Prime Minister’s desk and how many from other aspects of the Church’s selection timetable?
Like others in the debate, I have strayed a little wider than the central simple point, which is removing discrimination and enabling the King’s principal adviser to act. I congratulate the noble Baroness on bringing forward this important piece of legislation. I support the objective she set out. I pray with confidence that Mr Burnham will exercise his role wisely. I ask others to give this short Bill a very fair wind.
Baroness Smith of Basildon (Lab)
My Lords, it has been a genuine privilege to listen to this evening’s debate. It has been thoughtful and at times thought-provoking as well. I am grateful to all noble Lords for their contributions. I have to say that I was at one point reminded of Prime Minister Jim Hacker in the “Bishop’s Gambit” episode of “Yes, Prime Minister”, where he is given a choice of two candidates. One, he sees as a radical Marxist; the other he describes as an ultra-conservative member of the Church of England—a “rigid traditionalist”, I think he called him. He does not like either of them. Sir Humphrey runs rings around him trying to find a suitable alternative that is to the benefit of Sir Humphrey. I am sure that such a thing would never happen today.
It is an interesting perspective that this is of great interest to many people. It is no surprise that, as we have heard in this debate, Members of this House are interested in the historical perspective as well as the practical application. I am particularly grateful to the noble Lord, Lord Wolfson, for sharing his experience on this. It does address a live practical issue. I have to part company with the noble Lord, Lord Wolfson, in the same way as did the noble Lord, Lord Purvis, about the rush. When we look back at the previous legislation that amended both those Acts, of 1828 and 1858, I think “rushed” is probably not the adjective that most of us would use in those circumstances.
It is completely wrong for any Prime Minister, whatever faith they profess, to be stopped from fulfilling their full constitutional duty under the law because of their religion. That is something we cannot accept in any circumstances. We should never give a constitutional responsibility to any Minister or Prime Minister and then make that responsibility conditional or discriminatory. That is the basis of the legislation here.
We have heard many interesting recollections. The noble Baroness, Lady Bottomley of Nettlestone, told us about Robert Peel and the Duke of Wellington, who changed their minds and moved on this issue, splitting the Conservative Party of the time down the middle, with long consequences for future elections. The noble Lord, Lord Wallace of Saltaire, made some observations on religious discrimination, both generally and on how we face, for example, antisemitism in society. It would not reflect well on Parliament if we were to criticise that kind of discrimination yet fail to do something ourselves when we were able to do so. I am grateful for the comments that the noble Lord made on religious tolerance as well.
The views of the noble Lord, Lord Birt, are well recorded in the House on this issue. I would say to him that, although the separation of state is in the US constitution, when American Presidents are sworn in, they place their hand on the Bible and say at the end, “So help me, God”, even though they have the opportunity to affirm. I do not know whether other noble Lords have a similar recollection to myself, but it seems to me that American politicians are judged far more on issues of religion and are expected to engage with religion far more than elected politicians in the UK. Still, the noble Lord made his point and the House heard what he had to say. In the same way, the noble Lord, Lord Purvis, made the point about disestablishment of the Church of England. I do not agree with him, but both noble Lords shared their views in a respectful way.
I particularly welcomed the support of the right reverend Prelate. I welcomed the comments he made and thank him for his support. The noble Lord, Lord True, asked at the end about the reasons for delays in appointing bishops. That is a matter for the Church of England and its own process for appointments. I can assure the noble Lord that in no way has the Prime Minister failed to take up his responsibility or caused any delays. Those responsibilities have been fulfilled by the Lord Chancellor but, normally, from a political point of view, it would take a couple of weeks to make those decisions.
I am also grateful to the noble Lord, Lord Murphy, who will forever be known as the Apostle Paul, for pointing out the religious faiths of previous Prime Ministers. That is at the heart of this. Singling out those who are Jewish or Roman Catholic in a way that no other person of faith or no faith has been singled out is the issue we are trying to resolve.
The noble Lord, Lord Wolfson, asked me whether this was the last remaining discrimination in that legislation and whether it removes any relief. I know that lawyers never ask a question to which they do not know the answer, and I can confirm that the answer to his easy question to me is yes, that is the case, and he was right to ask that. I also thank the noble Lord, Lord Barber of Chittlehampton, for a thoughtful contribution. I am glad he raised the contribution of Daniel O’Connell. The noble Lord, Lord Moylan, also mentioned Charles Bradlaugh. My understanding of Charles Bradlaugh is that he did not profess any faith. He was an atheist and wanted to affirm: that is what caused the delay, in the same way as the oath of office affected Lionel de Rothschild, who got elected as the first Jewish Member but was not able to take his seat. That, again, was the matter of the oath.
These things take too long. It is a gradual process, but today we have completed a process in which everybody in this House can take pride, whatever their views on the wider issues. There is clear cross-party consensus. The noble Lord, Lord Moylan, is unhappy with the legislation, but I understand that he does not intend to propose any amendments. This is a Bill of two small clauses and I thank the noble Lord, Lord Barber, for his understanding of how it is possible to do short Bills that have a major impact. This has great symbolic significance. As a lot of people, including the noble Lords, Lord Wolfson and Lord Murphy, described, it matters to all of us, but particularly to those who are Jewish or Roman Catholic, that we should not have discriminatory legislation on our statute book. It does not disturb the current arrangements we have with the Church of England and with the Crown and it ensures that our statute book is fair. It allows Ministers of the Crown to discharge their full constitutional duties whatever religion they profess and ensures there is no discrimination.
I thank all noble Lords who have taken part. To have support from the noble Lord, Lord True, on the Conservative Front Bench, the noble Lord, Lord Purvis, and across the House, shows that we go forward on this largely united on an important piece of legislation.
Courts and Tribunals Bill
Tuesday 10th November 2026
(1 day, 12 hours ago)
Lords ChamberRead Full debate Courts and Tribunals Bill 2024-26 View all Courts and Tribunals Bill 2024-26 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 57-I(b) Amendments for Committee (Supplementary to the Marshalled List) - (10 Nov 2026)
Lord Keen of Elie
Lord Keen of Elie (Con)
My Lords, I will move my Amendment 29 and address the question of whether Schedule 1 should stand part of the Bill. Amendment 29 seeks to remove the Henry VIII power to amend the list of offences considered complex and lengthy by only secondary legislation. To change the cases for which a “judge only” trial is permitted with a statutory instrument would, we suggest, be a completely unacceptable step and the Government have set out no reasoned basis for why such a step would be necessary.
The report from the Delegated Powers and Regulatory Reform Committee was published last week. It described the power to amend part 1 of the new Schedule 3ZA as an “inappropriate delegation of power” and recommended its removal. Indeed, as evidenced by the number of Peers tabling amendments to that effect, there is cross-party consensus that this is not a good use of delegated powers. Allowing the Secretary of State to add any offences to this list and to broaden the list to include crimes beyond the current scope of fraud and financial crime is a significant power that requires more scrutiny than the affirmative procedure for secondary legislation would provide for. The fact that there are only very narrow exemptions for the offences that could be included is also highly concerning.
At Second Reading, my noble friend Lord Howard of Lympne referred to this as “a Joseph Stalin clause”. He was certainly right to point out how far this power extends. I hope that the Minister will listen closely and take account of the concerns expressed by noble Lords on all Benches.
Even if we were to support removing juries from fraud cases, which we do not, your Lordships cannot be asked to effectively scrutinise such a significant provision when we have not been told of its scope. I beg to move.
Viscount Hailsham (Con)
My Lords, I have two comments. I entirely agree with what my noble and learned friend said. Although I always welcome the affirmative procedure rather than the negative procedure, one has to recognise that the affirmative procedure does not provide proper parliamentary control for the fundamental reason that statutory instruments are not amendable. I have never, in 40 years, understood the reason of principle why statutory instruments are not amendable by the House. I recognise that it is for the Executive’s convenience, but that is not the same thing.
Baroness Chakrabarti (Lab)
Once more I find myself in unity with the Privy Council Bench opposite. My friend may be only a mere Viscount but I join him in his campaign against Henry VIII. I declare an interest as a council member of Justice and a member of your Lordships’ Delegated Powers Committee. In that committee, the spirit of the late, great and learned Lord Judge does not just sit but is always in the room. He would do this better, more swiftly and more powerfully, but the committee was in total unanimity when it found this to be a completely inappropriate delegation of power. The committee said:
“It confers on the Secretary of State a significant power to amend, by order, principal aspects of the policy contained in the Bill. We are unconvinced by the Government’s justification for the power in the Memorandum”.
It should be removed. It was not a debate about procedure but a unanimous assertion that the power should be removed.
I am conscious that, on an earlier group, my noble friend the Minister made an argument that is often made in relation to Henry VIII powers: “This is the 21st century. There is technology, there is AI, so further offences might be created that we might want to add to this list that would potentially be appropriate for a trial by judge alone”. With respect, those offences would likely be created, I hope, by new primary legislation. That legislation could deal with the appropriate mode of trial. This is a completely unacceptable power.
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.
Lord Keen of Elie (Con)
My Lords, it occurs to me that the Minister may have missed his vocation: he is able to advance an unstatable case with at least a scintilla of conviction. We cannot accept the explanation advanced. I note the support across the Committee for removing Part 2 of Schedule 1. The suggestion that it might be required to introduce further new laws unknown at the present time was met eloquently by the noble Baroness, Lady Chakrabarti, who pointed out that such laws would almost certainly be introduced by way of primary legislation anyway. I make it clear that we will be returning to this on Report. Meanwhile, I beg leave to withdraw the amendment.
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.
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.
The Deputy Chairman of Committees (Baroness Barker) (LD)
I advise the Committee that, if this amendment is agreed to, I cannot call Amendment 34 because of pre-emption.
Viscount Hailsham (Con)
My Lords, I will speak very briefly to Amendments 69, 71 and 72. My concern is that already expressed by the noble Lord, Lord Marks. Once Clause 1 is enacted—if it is—and the sentencing powers of the magistrates’ courts are increased, there will be a very large increase in the business of magistrates’ courts and they will be overwhelmed. The effect of the amendments I have tabled in this context is to limit the ability of the Government to implement the clauses unless the magistrates’ courts have increased the number of magistrates to 21,000, which seems to be the figure generally accepted as sufficient to handle the increased business. My amendments also provide that, in the event of the number of magistrates falling below 21,000 for a sustained period of three months, the statutory instrument will lapse. The purpose is to try to ensure that there are sufficient magistrates. I have grave doubts that there will be, and that is why I tabled these amendments.
Baroness Jones of Moulsecoomb (GP)
My Lords, I oppose Clause 5. It will allow the Government to increase the maximum custodial sentence that magistrates can impose from 12 months to 18 or 24 months. As we have heard, it will also give the Secretary of State the power to make that change through regulations rather than through Parliament, which would allow us to consider the matter through primary legislation. My concern is about not just the length of sentences but the combined effect of this clause and Clause 1. The Bar Council has warned that this is a “dangerous experiment”, particularly at a time when prisons are already at capacity and the backlog in magistrates’ courts is growing. Increasing magistrates’ sentencing powers does not address the underlying problems of an underresourced justice system.
Like many other noble Lords, I am also concerned about the delegated powers in this clause. The House of Lords Delegated Powers and Regulatory Reform Committee has specifically recommended that Clause 5(1) be removed. Its chair warned that the clause oversteps the proper limits of ministerial discretion. We should not hand the Government such a significant power to change sentencing limits without proper parliamentary scrutiny. The Government have not made a convincing case for this change. If they think magistrates should have greater sentencing powers, why will they not justify that proposal to Parliament instead of leaving the decision to future regulations? I told the Minister that I would not say this, but, while he is extremely emollient in trying to calm our fears, I am afraid he has not done so. The Government are faced with opposition from all around the Chamber. The Greens are linking with the Conservatives, Labour and the Lib Dems. Might that give the Government pause to think that perhaps they have got it wrong?
Amendment 35 and my consequential Amendments 58, 70 and 71 would replace Clause 5 with a single, simple provision. It removes the Henry VIII power of the Secretary of State to change by regulations how long a magistrates’ court can send someone to prison for, for an “either way” offence. At Second Reading, I said that I could not support expanding magistrates’ sentencing powers. This amendment offers the Government a constructive alternative, taken directly from the review on which this Bill is built.
Paragraph 14A of Schedule 23 to the Sentencing Act 2020 is a Henry VIII power. It allows a Minister to rewrite an Act of Parliament by statutory instrument, subject only to a negative procedure. That is appalling. We are not a democracy when that sort of action gets taken. Since 2022, the limit has been raised from six to 12 months, cut back to six months in March 2023 and raised to 12 months again in November 2024. That is three changes in under three years, driven by Crown Court backlogs one year and prison capacity the next. Clause 5 widens this even further. It allows the Secretary of State to set the limit at 18 or 24 months, up to double today’s maximum—again, by regulations.
The Minister told your Lordships’ House at Second Reading that the Government intend to raise the limit to 18 months next year, depending on Royal Assent. That is not what the noble and learned Lord, Lord Leveson, recommended. In recommendation 15 of Part 1 of his independent review of the criminal courts, he recommended that the power to change magistrates’ sentencing powers by statutory instrument be repealed and that the 12-month maximum should be made permanent. My amendment, therefore, does exactly what recommendation 15 asks.
I absolutely despair of this Government, in the sense that they seem to be backtracking on all the democratic ideas they had when they were in Opposition. I sat here and listened to all the colleagues here on the Labour Benches when they were in Opposition, saying wonderful things that I could agree with. Now, I just see the other Tory party sitting over there. It is very depressing to sit over here these days.
Baroness Sater (Con)
I rise to speak to Amendments 36 and 68 in my name, which seek to ensure that magistrates’ courts are properly prepared for the extension of their sentencing powers and that the impact of these reforms is reviewed within 12 months of the Bill coming into force, and annually thereafter. I am grateful to the Minister for meeting with me, together with his officials, and for the constructive discussion and helpful follow-up information.
The Government’s intention is to relieve pressure on the Crown Court. However, we need to be confident that the magistrates’ court will have sufficient capacity to absorb the additional work that noble Lords have discussed today. Amendment 68, which would extend the commencement period from two months to six months, seeks to probe whether the proposed timetable allows sufficient time to ensure that all necessary preparations are in place.
There are several areas I would like to explore with the Minister. First, on recruitment and retention, I welcome the fact that recruitment has almost doubled. In the year to March 2026 1,663 magistrates were appointed, compared with 898 the previous year. However, as mentioned at Second Reading, 988 magistrates also left during that period, which was a 20% increase on the previous year. In August the Magistrates’ Association highlighted that at this rate it would take a further 9.2 years to reach the Government’s target of 21,000 magistrates in post, which they aim to achieve by 2028-29. This really concerns me. Given the assessment, can the Minister give us the confidence and reassurance that the Government will be able to meet their targets?
We must also ensure that progress on diversity is maintained and strengthened along the way. The Government’s own figures show that 17% of new appointments in 2025-26 were from ethnic minority backgrounds, compared with 14% of serving magistrates. Can the Minister assure me that this is being closely monitored and that the Government remain focused on continuing to improve the diversity of the magistracy? Increasing numbers must go hand in hand with ensuring that the Bench reflects the community it serves, and does not get left behind.
One area I did not mention at Second Reading was my concern about whether there would be sufficient experienced magistrates to act as presiding judges. The Government’s own figures indicate that around a third of serving magistrates are currently presiding judges. Have the Government assessed whether this proportion will be sufficient to meet the additional demands arising from these reforms, in particular taking into account the expected departures and retirements? What steps are being taken to ensure that there are enough experienced presiding judges as the magistracy expands?
Secondly, the Lady Chief Justice raised concerns about the additional need for training, following the previous extension of magistrates’ sentencing powers, describing it as
“a huge amount of additional … need”.
As many noble Lords raised at Second Reading, the extension of these powers will create further demands. I understand that the Judicial College has already begun planning for the additional training requirements and that further funding has been made available. What assessment have the Government made of the Judicial College’s capacity to deliver this training alongside the ongoing training needs of the existing magistracy? Is there contingency funding available should demand exceed the college’s current estimates?
The Government have said that the extended sentencing powers will not come into force until sufficient magistrates, legal advisers and district judges have completed the necessary training. How will the Government determine whether this requirement has been met and what do they consider to be sufficient?
Thirdly, as we already know, legal advisers and court staff play a vital role in the effective running of magistrates’ courts. The Government have highlighted that they have appointed additional legal advisers and are recruiting further staff. However, how many additional legal advisers do the Government estimate they will need to support the increased case load, while trying to take into account the numbers that will leave?
I understand that HMCTS is still developing its package of pay, progression and career development reforms to address retention challenges. When do the Government expect this work to be completed and are they confident that these measures will be in place in time to support the additional demands?
Finally, I welcome the Government’s investment in additional sitting days, but these can be delivered only if there are sufficient magistrates, presiding judges, legal advisers and court staff. Taken together, these are significant practical challenges. While I recognise the steps the Government have outlined, I question whether two months will be sufficient to complete the necessary preparations. What assessment have the Government made of the preparations still required and what evidence supports their decision that a two-month commencement period is sufficient when there are so many variables and unknowns? I am not suggesting that six months is necessarily the only possible timetable, nor am I seeking to delay these reforms unnecessarily. The central issue is that these reforms must not come into force before the magistrates’ courts are ready to deliver them effectively, or we risk creating an even bigger problem.
Briefly, Amendment 36 would require the Government to publish a review within 12 months of the Bill coming into force and annually thereafter. Even with the necessary preparation, the practical realities of implementation may differ from the Government’s projections. Having this review and annually thereafter would allow us to assess how successfully magistrates’ courts are managing the additional case load, identify any challenges arising from the reforms and consider whether further support is needed.
Having served as a magistrate, I know that greater powers bring greater responsibility. We must ensure that magistrates’ courts are properly equipped to exercise these powers, and I look forward to hearing the Minister’s response.
Baroness Hamwee (LD)
My Lords, the noble Baroness has raised so many variables and unknowns—a term that she used—and I am very glad she did so. She speaks from experience, which I cannot, but I have been very uneasy about almost everything she has mentioned and I have some amendments which we will come to next week on the same subject. So I am generally supportive of what she is saying.
My name is on Amendment 69. I will not say I added my name because it got added by the Public Bill Office disaggregating one of my amendments and adding my name to that of the noble Viscount, Lord Hailsham. This is a bit of a stretch. I do not know whether you would call the noble Viscount, the noble and learned Lord and me an unholy alliance but, on the subject of collective nouns, I have had an email from the noble and learned Lord, Lord Burnett, saying that the term coined by the noble Baroness, Lady Chakrabarti, of an “exquisite quartet”—this is for future reference, your Lordships understand—is one that he can live with.
Lord Keen of Elie (Con)
My Lords, the Clause 5 stand part notice is in my name. We have a number of diverse amendments in this group, but they all direct attention at the same issues, they are all sounding the same warnings, and they come from across the Committee.
There are two essential elements. The first, as remarked upon by the noble Lord, Lord Marks of Henley-on-Thames, is the improper constitutional mechanism of Henry VIII powers being exercised by the negative procedure, with the result that the length of imprisonment that can be imposed upon those citizens who appear before the magistrates’ court may be increased. The second is the unrealistic assumptions that are being made about the ability of the magistrates’ courts to cope with the increased pressure that is going to be placed upon them, not only in regard to their ability to accommodate “each way” cases but by the transfer of further cases, which will be listed as and when sentencing powers are extended.
I am struck by the observation made by my noble friend Lady Sater, repeated by the noble Baroness, Lady Hamwee, about the reference to variables and unknowns. There is a complete lack of evidence from the Government as to how these changes will impact upon the present capacity of the magistrates’ courts to accommodate the increased load that is being placed upon them.
It is in these circumstances that we will return to this on Report and we will support those further amendments that seek to challenge the Government’s ability to circumvent Parliament—because, in essence, that is what is being done here—by way of the negative procedure to increase sentencing powers.
Lord Lemos (Lab)
My Lords, Clause 5 provides powers to increase magistrates’ court sentencing powers to 18 or 24 months should future circumstances require it. These powers provide important flexibility to respond to changing pressures across the justice system and to ensure that court resources are deployed proportionately. Drawing on the experience of the past few years, responding to changing pressures across the justice system, including in the prison system, is a very high priority for the efficient management of justice which commands public confidence.
The Crown Court continues to face significant pressures, and many cases sent there for sentence can be dealt with fairly and effectively in the magistrates’ courts, as I have said in earlier groups. Extending magistrates’ court sentencing powers will allow more cases to be appropriately retained in the magistrates’ courts, freeing Crown Court capacity for the most serious and complex cases.
Reducing delay is not simply a matter of efficiency. Timeliness is an essential ingredient of fairness and justice, and freeing Crown Court capacity is critical if victims are to receive justice within a reasonable timeframe. The backlog is one question, and noble Lords have cited various statistics about the backlog in both the Crown Court and the magistrates’ court, but the backlog in the magistrates’ court is dealt with much more quickly than the backlog in the Crown Court, for all the reasons that are obvious. The waiting times in the magistrates’ court are less than half the waiting times for the Crown Court. That matters to victims in particular.
Amendments 69, 71 and 72 from the noble Viscount, Lord Hailsham, and Amendment 34 from my noble friend Lady Goudie seek to make these reforms subject to the affirmative procedure and prevent them taking effect unless a prescribed number of magistrates is maintained. The Government do not consider this additional procedure necessary. Parliament is already being asked by this Bill to take the substantive policy decisions, including approving the full range of magistrates’ courts’ sentencing powers that may be exercised in future. Once Parliament has established that framework, it is proportionate and consistent with existing practice for changes within those limits to be made by regulations. I know that is not what many noble Lords wanted to hear, but it is our view. The negative procedure is the established approach and has been used previously, both to reduce and to increase magistrates’ courts’ sentencing powers in response to the changing pressures across the justice system, which have been vividly recounted in recent months.
Nor do we believe that the implementation or continuation of these reforms should be made contingent on a single workforce metric. The Government fully recognise the importance of magistrates’ courts’ capacity, which is why we are increasing sitting days and undertaking a national recruitment campaign with the aim of increasing the size of the magistracy to around 21,000, as the noble Viscount, Lord Hailsham, noted, by 2028-29. However, operational readiness cannot be reduced to a single numerical threshold. It depends on court capacity, workforce deployment, case volumes and wider pressures across the criminal justice system. Amendment 72 would make commencement and continued operation dependent on a prescribed number of magistrates being maintained, regardless of the wider operational position of the justice system. The Government’s view is that such decisions should be guided by evidence and operational need rather than a single workforce measure.
Amendments 36 and 68 were tabled by the noble Baroness, Lady Sater—I thank her for meeting me in such a constructive spirit, and we have provided her with more information since. I take seriously all the points that she made about the things that needed to be true, if I can put it like that, for these reforms to succeed. I pay tribute to her experience and collaborative spirit. The Government have already committed in Clause 20 to post-implementation monitoring and review of the reforms, and therefore we do not consider that a further statutory review requirement is necessary. Amendment 68 would delay commencement beyond two months after Royal Assent. We do not consider that necessary either. The Bill does not increase magistrates’ courts’ sentencing powers. Magistrates will continue to operate at their current sentencing limits unless and until a future decision is taken to exercise the power. Any future decision to increase sentencing powers will be informed by operational data and engagement with key partners across the criminal justice system, including HMCTS, prisons and probation, the CPS and the judiciary.
Since sentencing powers were increased to 12 months in November 2024, fewer cases are being committed to the Crown Court for sentence, and magistrates are retaining more cases to hear. I reject entirely the comment by the noble and learned Lord, Lord Keen of Elie, that the Government have provided no evidence. We have published a magistrates’ capacity plan; I have commissioned a fact sheet that I think the noble Baroness, Lady Sater, has seen, and we have published our modelling. There is a good deal of data out there already. I have spent a good deal of time, including this morning, going over progress on magistrates’ courts’ capacity, recruitment and retention, so I am afraid I simply do not accept that characterisation.
We are going to increase sittings days to 131,000 in 2028-29. A national recruitment campaign is under way to increase the number of magistrates and recruit additional legal advisers and district judges. We are committed to rebuilding the magistracy. We have already made 1,500 new appointments across England and Wales since April. In 2025-26, as the noble Baroness, Lady Sater, noted, 17% of new appointments were from an ethnic minority and more than a third of new recruits were under 50. Women account for 55% of the new appointments.
I heard the concerns from the noble Baroness about the capacity and funding of the Judicial College. We will monitor those carefully but, as I told her when we met, we have significantly increased the funding to the Judicial College. That is an important aspect of making a success of these things—as is the need for new magistrates to have the mentoring and support of more experienced magistrates, as we have discussed. We have a detailed implementation plan. I would be very grateful if the noble Baroness, given her experience, would continue to work with us on making sure that is a reality. We all have the same ambitions here. I have a good deal of confidence in our efforts to expand the capacity of the magistracy. I am happy to share that with the noble Baronesses, Lady Sater and Lady Hamwee, and others.
Baroness Hamwee (LD)
The Minister referred to Clause 20, which talks about a review of equalities issues and, regarding the appointment of reviewers,
“any other matter specified in the appointment that relates to the effect of the relevant criminal justice provisions”.
It would be helpful to know what other matters the Government have in mind. We have been talking about some quite specific issues. I would be glad of a reassurance that that is what the Government intend to look at in a specific and detailed way to report to Parliament.
Lord Lemos (Lab)
The review that is promised is specifically on the question of disproportionality as it affects Black and minority-ethnic people. The provisions that we have made for the appointment and so on of the reviewer relate to that. That said, we also intend to review and publish progress on magistrates’ capacity, because we see that as central. It is not the same review, but both of those things are in play.
Of course, the readiness of the magistrates’ courts would be assessed before any decision to increase sentencing powers is taken. The decision would be informed by operational data and engagement. A fixed statutory delay would, therefore, reduce our flexibility without providing realistic additional assurance on operational readiness. It would also delay commencement of the statutory independent review of the structural reforms—just mentioned by the noble Baroness, Lady Hamwee—and provisions for when the Crown Court sits in the City of London, despite there being no equivalent operational rationale for doing so.
Amendment 33 in the name of the noble Lord, Lord Marks, together with Amendment 35, and consequential Amendments 58 and 70 in the name of the noble Baroness, Lady Jones, would either restrict the sentencing powers of magistrates’ courts to the current possible limits of six or 12 months, variable by regulations, or remove altogether those existing powers to vary their sentencing powers by regulations. The Government do not believe that would be the right approach. Parliament is being asked through this Bill to decide whether magistrates’ courts’ sentencing powers may in future be increased to 18 or 24 months. Clause 5 does not itself increase those powers. Parliament is taking the substantive policy decision about those limits through this piece of primary legislation and setting the limits within which any future regulations may operate. The purpose of Clause 5 is to continue to enable flexibility and any future decision to exercise the power would be informed by that evidence.
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.