Joe Robertson
MP for Isle of Wight East · Conservative · United Kingdom
“(3) In preparation of the report under subsection (1), the Secretary of State may have regard to any such measures or information that they consider appropriate, including— (a) an assessment of any variation in dementia services and outcomes between integrated care board areas, (b) information on workforce capacity, capability and trainin…”
“The clause fits into that and would require the collection of data on the provision of dementia services in health and social care. I do not propose to speak too long, but I do want to make a couple of remarks on the current situation, which sets these new clauses in context.”
“That will, of course, impact many more friends, families and carers who support those living with dementia. More than a third of people living with dementia in England do not have a formal diagnosis. Those who do receive a diagnosis live with the condition for an average of three and a half years before that diagnosis.”
“The data requested is imperative to ensuring that the Government can measure and monitor progress against relevant national targets, standards and guidance, including the new modern service framework on dementia, the forthcoming Care Quality Commission statutory guidance and outcome measures that may be set in future NHS operational plann…”
“I thank the Minister for pausing the MCA’s brutal decision about coastguard rescue officers, and for convening meetings on cross-Solent ferry transport to the Isle of Wight, which will start next month.”
“It is a pleasure to serve with you in the Chair, Ms Lewell. These two new clauses, the latter of which is in my name, deal with the publication of an annual report detailing NHS and social care provision for dementia care and how the Government are performing against targets, standards and outcome measures set out in national guidance and…”
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“My hon. Friend the shadow Minister makes a good point, and we will get on to talking about the provisions relating to the family courts. In relation to this particular provision, the family courts are where we have a judge making a decision on very emotive facts and on procedure. But family courts are far more collaborative in nature. A judge’s role is also about straining to find consensus. That is very different from the criminal courts where, ultimately, a judge or a jury, depending on who is hearing the case, has to make a yes-or-no decision on innocence or guilt. That has wide-ranging and profound impacts, which sometimes turn on a knife edge on hard-to-determine evidence. That is different from the family court, where the intention is to try and find consensus, rather than making those decisions.”
“The clause therefore does much more than just fiddle with thresholds, or however the Government might want to characterise it—we will soon find out. It fundamentally alters what magistrates courts are for.”
“That is their particular purpose, and it is therefore right that they have always had limited sentencing powers when it comes to deciding whether to lock someone up. Fines and community orders are the sort of sentences that are far more typical of magistrates courts. Depriving someone of their liberty is a very serious matter. It is one thing to deprive someone of their liberty for months, especially given that such sentences are often reduced—in practice, a year can be reduced to months—but it is another thing to deprive someone of their liberty for two years. That would suddenly make the magistrates courts’ summary-style justice, or rough justice—call it whatever; I do not mean any of those words as a criticism—incredibly inappropriate for the powers that the Government would like them to exercise.”
“This is about more than just sentencing powers; it fundamentally changes what magistrates courts are for and how our criminal courts are structured. The Crown court, whether sitting with only a judge or with a jury, is for more serious cases, with more serious sanctions, because it is able to deal with levels of complexity, be it in relation to evidence or procedure. We have heard about “rough and ready” justice in the magistrates court. That is not a criticism; it is a way of characterising the absolute foundations of our magistrates courts. They do a huge amount of criminal work in this country, but they are meant to be summary courts; they are meant to be courts that act quickly and do not have the rigour or probity of the Crown courts.”
“I support the position of my hon. Friend the shadow Minister. There is a degree of cross-party support on the Opposition Benches; we heard some very good submissions from the hon. Member for Brighton Pavilion, which seems a while ago now. The Government’s position on many of the contentious issues in Committee has been anchored on Sir Brian Leveson’s report—indeed, why would it not be? It is an independent report that the Government commissioned. But they freely depart from his recommendations, seemingly on a whim, without any substantial justification. This is one of those cases. Sir Brian Leveson was very clear that magistrates should continue to have sentencing powers only up to a year, and the Government are effectively doubling those sentencing powers.”
“If there is a genuine intention and belief that magistrates should be able to impose sentences of up to two years—as I say, in my view, that fundamentally changes the nature of the court—then that should be met with provisions that make the process in the magistrates court more rigorous. I would not agree with that, but at least it would hang together, show consistency and demonstrate an intention that justice must be delivered in a process that is commensurate with the sanction the state is looking to impose on someone. There is no greater sanction in this country than depriving someone of their liberty and locking them up. In this case, it is more than a threshold argument; the Bill is fundamentally changing what magistrates courts are for, what Crown courts are for, and the difference in procedure between the two.”
“I recognise evidence, but I give greatest weight to Sir Brian Leveson, the author of the independent report commissioned by the Government. As the hon. Lady knows very well, the youth court is a very different beast, because a different set of principles and rules applies to cross-examination, evidence and so on for people who are of the age of minority. Simply to say that if the youth court can do it, then the magistrates court can do it for people over 18 is a slightly off-the-cuff argument, if I may say so; it does not really have any rigour at all. Allow me to return to my line of argument about magistrates courts.”
“The entire reason that the Bill Committee sits is to seek to do that, but time and again, the Government would prefer to just vote things down and use their majority rather than taking the time to look at provisions that seem to me objectively reasonable.”
“If having a legal professional does not give someone at least the chance of delivering that in a more professional manner, there is plainly little point in the legal profession. That is the rationale, and the Government do not have to apply a different principle at all if they just see the current threshold as applying to a one-year sentence rather than to venue. This delivers again on other amendments, not only from others on these Benches but from the shadow Minister, and it allows the Government to deliver what they want to deliver. It does not run against the principle of what the Government are trying to do, even though Conservative Members have differences of opinion on that. It merely perfects, improves and cures some of the defects and unintended consequences of the Bill.”
“Rather than looking at the £22,000 income threshold for magistrates courts and £37,500 for Crown courts, we could instead say that, if someone will be sentenced for up to one year, the income threshold is £22,000, and if someone will be sentenced for more than one year, it is £37,500. That is a true statement—that is how it currently stands. We should merely extend that principle, basing the figures on sentencing thresholds rather than on the venue that dishes out that sentence. That would achieve fairness, so that if somebody might be locked up for two years, they have the legal might and can afford the legal advice to defend themselves and articulate a case in a more professional manner.”
“This looks like another entirely reasonable amendment, which looks to mitigate some of the harsher provisions in the changes that will allow magistrates to give sentences of up to two years. A moment ago, I talked about the difference between the more rough and ready justice in the magistrates court and the more rigorous, lengthy and developed procedure, practice and ability to operate in the Crown court. When it comes to deciding the income threshold for whether a defendant qualifies for legal aid, surely the most important thing is not the process or procedure as such, but the harshness of the possible sanction that the state is looking to impose on that person.”
“This is a strange venue to ask for an apology for previous Government legislation from an MP who, like me, has been in this place for less than two years. The hon. Gentleman and I were on broadcast media yesterday; that might have been a better venue for him to ask me to apologise, but I would have rejected his invitation at that time, and I will certainly reject it in Committee. This is not about previous Governments’ views or opinions; it is about the views and opinions of this Parliament.”
“Indeed, it is quite interesting that the Government’s benchmark is the previous Government. I do not recall them making that clear at the last election. I will leave it there.”
“This is about not necessarily increased funding for legal aid—she says she is doing that already—but the right to it when the state is trying to lock someone up.”
“How much will the Government sacrifice at the altar of efficiency? Efficiency cannot trump all, and certainly not the justice arguments already made by me and others, which I will not repeat. If the Government cannot explain where these provisions have come from, when they run counter to Sir Brian Leveson’s report, they should rightly submit these proposals through a proper procedure so that they can be debated by Parliament, rather than just giving a power to the Secretary of State. As I say, I will restrict my comments to the interplay between clause 6 and clause 7, which restricts the right of appeal. We have already heard some good arguments about legal aid, and it does not do much for the Minister, who is quite exercised by the previous Government’s record on legal aid.”
“That is why this Committee is having to debate whether it is right that a summary court should suddenly have the power to sentence someone up to two years. The Government can argue that at least some of the provisions that the Opposition do not agree with are anchored somewhere in Sir Brian Leveson’s report. I would argue that this provision is specifically argued out by Sir Brian Leveson. Indeed, he talked about it being contingent on the magistrates court continuing to have sentencing powers of up to only one year. When the Government appear, in my view, to be doing something that specifically runs against Sir Brian Leveson’s report, rather than is simply absent from it, they need to explain their position. It is not good enough to run the same old arguments. The central argument in all this seems to be efficiency.”
“The central issue here, as with so much of this, is the impact that a single provision, or a single intention—in this case clause 6—has on other areas of the criminal justice system, and indeed provisions in the Bill. There is a lot of interplay between clauses 6 and 7—we are about to discuss clause 7, so I will save my comments on that for a few minutes’ time. The central issue is the unintended consequence, yes, but also the other provisions that Parliament will not get to debate. In this case, Parliament will not get a proper opportunity to debate the fairness of having magistrates courts sentencing up to two years, because the clause effectively creates a power for the Secretary of State to do that job instead.”
“The Government are rightly willing to focus an argument on individual victims; they should be prepared to do that for the individual defendants who will lose rights and, in the case of sentences of up to two years, may suddenly no longer be able to access legal aid because the regime is focused on the venue rather than on sentencing power. That should be adjusted not because of what previous Governments have done, but because this Government are moving the goalposts on sentencing powers in the magistrates court, so they should make the matching adjustment when it comes to qualifying for legal aid. For that reason, I do not agree with clause 6.”
“That is entirely right but, of course, we do not know, because the assessments in respect of the Bill are so light—there is not one on that point. It may or may not at all mean more spending. So many times, the argument on this issue, and on many others, is, “Oh, it doesn’t affect that many cases,” or, “Don’t worry.” Well, it deeply affects the person whose case it is. If a defendant wants to exercise the right that the Government are pulling away, it is hardly an argument for the Government to say, “Well, we’re not pulling that right away from very many people.” For that defendant, the right has been lost. The same applies to the argument when it is about victims or complainants.”
“The way my hon. Friend articulates the point suggests that the rules are effectively stripping people of the right to legal aid by pushing them down from a court where they currently qualify into a court where they do not. Is that a fair way to characterise it?”
“The Prime Minister has been absolutely clear that he should have been shown the recommendation of UKSV. He knew he had not seen it, so why did he not ask for it?”
“The hon. Member speaks with eloquence and experience. I understand the Minister’s point: she has framed this as simply removing a choice from a defendant, as though this is a benefit that need not exist, but does the hon. Member agree with my analysis that this constitutes the removal of a right rather than a choice—the right to be tried in the Crown court, unless trial in a magistrates court is preferred?”
“If the Bill passes unamended, that election, that choice, that right, which they have already exercised, will be taken away from them before they ever reach trial. It is a bitter irony that they have not yet reached trial because of the situation that the country is in. I accept that it is not this Government’s fault that we are where we are, but the state is the state, and the Government are responsible for it. For those people to be awaiting trial because of the state and then have their rights taken away from them by the state because of this Government’s actions goes far beyond disagreement on the Bill and on the principle of jury trial, no matter how important that is.”
“To the extent that it is necessary, I declare an interest in that I used to be a solicitor regulated by the Solicitors Regulation Authority and registered with the Law Society. I, too, support amendments 25, 12 and 43. They are not technical or political amendments, but constitutional amendments, and I hope that the Committee will consider them in that spirit. Let me begin with some facts that I think we can all agree on. There are thousands of defendants who are currently part-way through the criminal justice process having made a formal, consequential and, they thought, irreversible election to be tried by jury in the Crown court. They made that election under the law as it existed when they made it—indeed, as it exists today.”
“There is a reason why that is right: a jury is asked to take a decision on whether something happened, and its decision could mean that someone loses their liberty for a very long time. The criminal system in this country is tilted in favour of the defendant, so I am afraid that it is tilted in favour of people who commit heinous crimes. However, in our system we must believe that those who commit heinous crimes will be found out, convicted and serve the very toughest sentences.”
“I look forward to spending the afternoon exchanging ideas with the hon. Member. Let me begin by expanding a little on what I had intended to say. I do not agree with the narrative that it is either the defendant or the victim who wins out, not least because not every defendant is a guilty person. I would also say that victims of the worst crimes, when they are waiting for a guilty person to be found as such, already face the backlog. They will not have a choice to go to the magistrates court, because those are not either-way offences. The jury system will always take longer, and the people who have suffered the worst will always be subject to the longer jury trial.”
“I do. Perhaps I could encourage a Tea Room conversation between the hon. Members for Gloucester and for Bolton South and Walkden, in the hope that her wisdom might rub off on her hon. Friend when it comes to pitching this as a contest between victim and defendant. Of course, on a technical point, it is not the victim or complainant who brings the case; it is the Crown—the state. Yes, there is a victim who must see justice, but in criminal law, the offence is seen as a crime against the state. In countries where there is not a monarchy, it is the people versus the defendant, because the defendant’s crime is an affront to the people. We have a monarchy in this country, and we know it is the Crown against the defendant.”
“Yes. Let us get back to principles here. I support what the Government are trying to do in reducing the backlog. Of course, that is the right thing to do, and it benefits both those awaiting trial and the victims and complaints who want to see justice. On amendment 25, my particular issue here the retrospective application of the law. Even if Members agree with the Government that either-way offences should go and that people who commit or are accused of committing a crime in the future should no longer have the right that people used to, the clause will apply that new law to things that have already happened. That is highly controversial and an affront to the common law legal system in this country.”
“I continue to be grateful to the hon. Member for hanging on my every word, and I am grateful for the opportunity to expand on that. As I said, it is a basic tenet of English common law, and the ECHR effectively replicates what is already in our legal system. I am very happy to engage in a wide-ranging debate on the ECHR, but I fear that you, Ms Jardine, are also hanging on my every word and may stop me.”
“In 2013, Parliament fast-tracked the Jobseekers (Back to Work Schemes) Act 2013 to retrospectively validate regulations that the Court of Appeal had already found to be unlawful. The Act was introduced before the Supreme Court appeal was complete. That is a direct analogy to the present situation, in which the Bill would alter the mode of trial for defendants who are already part-way through criminal proceedings. In Reilly (No. 2), Mrs Justice Lang held that the 2013 Act was incompatible with article 6(1) of the ECHR, in that it had interfered with—”
“I say again that we are talking about cases that are already in proceedings. The Government’s own Criminal Procedure Rules 2025 identify, as part of the overriding objective, the recognition of the rights of a defendant, particularly those under article 6 of the European convention on human rights. Retrospective removal of the elected mode of trial is directly at odds with the overriding objective that the Government have enshrined in their own procedure rules. I turn to the more recent Reilly litigation that went on between 2013 and 2015, because, although this is a historic principle, it is one that has been repeatedly upheld. The R (on the application of Reilly) v. Secretary of State for Work and Pensions litigation provides, in my view, the closest and most instructive domestic parallel.”
“The European Court has repeatedly held that the principle of the rule of law and the notion of a fair trial preclude any interference by the legislature—that is, Parliament—other than on “compelling grounds of the general interest”, with the administration of justice designed to influence the judicial determination of a dispute. This principle was established in a number of cases and applied domestically in Reilly (No. 2), 2014. Where a defendant has an existing elected case in train, the application to them of the new clause 3 regime is precisely the form of retrospective interference with pending proceedings that article 6 prohibits. The Government must demonstrate compelling grounds of the general interest. Processing efficiency—the rationale advanced for these reforms—does not satisfy that threshold, in my view.”
“A defendant who elected Crown court trial under the existing law could not have foreseen that that election would be nullified, not least of all because some such defendants have been waiting rather a long time—and that is the issue this Government are trying to deal with. I say again that I support what they are trying to do, although I disagree with some of the means they are using to achieve those aims. This is precisely the kind of unforeseeable retrospective detriment that article 7 exists to prevent. While we are on the ECHR, I turn to paragraph 2 of article 6, on the right to a fair trial, and pending proceedings. Paragraph 1 guarantees the right to a “fair and public hearing” before an “independent and impartial tribunal”.”
“Again, I invite a Tea Room conversation —although we may have to meet somewhere geographically in the middle of the Tea Room. Any measure that materially and detrimentally alters the regime to which a defendant is subject in a way not foreseeable at the relevant time engages article 7. The Government’s own ECHR memorandum on the Crime and Policing Bill of April this year acknowledged that article 7 is engaged where the defendant could not “reasonably have foreseen” the application of a measure “at the material time”. At least we can agree that article 7 is at least engaged.”
“Lots of arguments have been made about why either-way offences should no longer exist, but not why that must be the case for people who have already made an election in that way.”
“Mrs Justice Lang further held that the absence of consultation with the representative organisations, which I say has happened here too, and the lack of scrutiny by relevant parliamentary Committees may have contributed to some misconceptions about the legal justification for the retrospective legislation. She said that the Government’s ECHR statement to Parliament failed to explain that a departure from the legal norm—exactly what is happening here, in my view—was being sought. Those observations plainly apply with equal force to this Bill. The parallels are direct: the Government are introducing new legislation that will alter the legal position of defendants who are already engaged. As in Reilly, no compelling grounds of the general interest have been articulated for why existing elected cases must also be captured.”
“I am grateful for that indication, Ms Jardine, and I understand. It had interfered with ongoing legal proceedings in favour of the state, which is exactly what is happening here: legal proceedings are being interrupted in order to favour the state, removing from appellants what would otherwise have been a conclusive ground of appeal without justification by compelling grounds of the general interest. The Court of Appeal upheld this conclusion, with Lord Justice Underhill emphasising the importance to be attached to observance of the rule of law.”
“No equivalent emergency exists here; there is no systemic liability to reverse. The War Crimes Act 1991 is cited as a paradigm case of retrospective criminal legislation, allowing proceedings for war crimes committed in German-occupied territory in the second world war, notwithstanding that the defendants were not British at the time. Parliament considered that the exception was justified by the gravity of the crimes involved—they were heinous crimes—but even then the Act was controversial.”
“It wants to tackle the backlog, yes, by changing the right to elect, but removing people who have made that election into a different court is something quite different. The Government have not argued that it is too urgent. That is unsurprising, because it is plainly not. Even in the emergency context of the Police (Detention and Bail) Act, when the Government faced systemic liability for unlawful detentions, the retrospective approach attracted intense criticism, just as I am criticising this Government. It was acknowledged in the explanatory notes that it was deliberately retrospective and it remains subject to potential ECHR challenge. It is interesting to note that this legislation may also be subject to challenge, even if it leaves this place and passes into law.”
“I will go on to my next bit, which is even more relevant than my previous bit. The Police (Detention and Bail) Act 2011 is Parliament’s most recent example of retrospective criminal legislation. It reversed the effect of the High Court’s decision in R (on the application of Chief Constable of Greater Manchester Police) v . Salford Magistrates’ Court and Hookway on the calculation of detention time under the Police and Criminal Evidence Act 1984, and did so by deeming the amendments always to have had effect. They had not. The then Policing Minister described the matter as too urgent to await a Supreme Court appeal. This Government have made no case that the current backlog is so urgent that it must be all shifted to the magistrates court.”
“I think it is for the Government to set out the state of emergency. I do not accept that there is one; in fact, I do not think the Government are saying that there is one, when it comes to taking away a right that someone has already elected. We are not talking about getting rid of jury trials for a trial for either-way offences. I disagree with that; we have dealt with that, and we will go back to it. In this clause, we are talking about applying that to a number of people who have already made an election. It is for the Government to set out the emergency. I do not believe that there is one, and I think that they have not set it out because they do not believe that there is one.”
“The cost of not honouring them is significant. I will not repeat the arguments that I have already made. In my view, the Committee should support amendments 25, 12 and 43. They are constitutionally proper and correct, legally secure and practically proportionate. The Government have offered no principled justification for the retrospective application of clause 3. In the absence of such justification, the presumption against retrospectivity must surely prevail. The Government can still achieve the aims of the Bill, no matter how much I disagree with a number of them.”
“But the retrospective reach of clause 3 appears—I hope—to be inadvertent. The amendments would correct it. The Government’s reform agenda could be delivered even if the amendments are made. Future cases would be fully captured by the new regime applied prospectively. Where defendants have already elected—and there will be relatively few of those over the lifetime of this law, compared with all the crimes that it will capture in future—their cases can be resolved under the existing system. It raises the question of what happens when we take a number of cases and put them straight into the magistrates courts now, rather than allowing the natural wasting away of the election to trial by jury for those who face what, today, are either-way offences. The cost of honouring the amendments is minimal, even to the Government.”
“The Solicitor General’s answer to a parliamentary question set that out explicitly. For the sake of brevity, I will not repeat that answer. However, whatever views are taken about that balancing exercise, there appears to have been no such exercise on which to take a view. It is apparent in the Bill’s explanatory notes. No compelling justification for retrospectivity is advanced. It should be in the notes, and it should have been done already, but at least the Minister can address it now. This has not been a case of closing an unforeseeable loophole. It is not an emergency requiring same-day legislation. It is not a response to a systemic injustice in wartime. It is a policy reform that operates perfectly well on a prospective basis if that is what the Government want to do, although I do not agree with abolishing jury trials.”
“I draw attention to a post on the UK Constitutional Law Association blog in July last year, which addresses and objects to the idea of using the Crown court backlog crisis to justify this provision. It is not an adequate justification that it is equivalent to wartime. Jury trials were not suspended even in the first world war, the second world war or the covid pandemic, all of which produced a more acute systemic issue than the one we have today. The present difficulties, however real they are—and I say again that they are real—do not plainly reach that threshold. The Government’s own stated policy is that they must balance conflicting public interests and consider whether the general public interest in the law not being changed retrospectively may be outweighed by any competing public interest with regard to ECHR.”
“The shadow Minister is absolutely right. I invite the Minister to address that point head on in her speech. Even the Government themselves do not seem to be saying it is an emergency, whereas when any previous Government, Conservative or Labour, have tried to enact something retrospectively, they have at least made the case for an emergency. Heinous crimes committed during a war, loopholes that have left the state open to repeat, ongoing litigation into perpetuity—those are the sorts of threshold that have been met in previous times. I hope that that goes some way to answering the question asked by the hon. Member for Gloucester. Let us hear from the Government why retrospective application in this case is so urgent. The answer cannot be about future cases; it must only be about those who have already elected trial.”
“The perception is that the judge has been unable to assist in the settlement, they will be unable to hear an objective final hearing and make a decision. The principle runs through not just criminal courts and jury trials, but family courts and the civil courts. It is a fundamental principle, in this country, that judge who makes a final decision should be as unclouded as possible by earlier arguments or decisions of a more procedural nature. For those reasons, I support the shadow Minister’s amendment. It would not drive a coach and horses through what the Government want to achieve in the Bill. I have already said that I disagree with a lot of the Government’s intentions, but the Government can still do what they want to do while taking the amendment on board. I hope that they will at least consider accepting some amendments.”
“That is an area I am more familiar with, as a former family practitioner, and the principle is similar. I apologise if the language I use to describe the proceedings is slightly out of date; it has been a few years since I practised. A financial dispute resolution hearing is effectively an interim hearing before people get to a final hearing; they are seeking to avoid the final hearing by having a financial dispute resolution hearing. A judge hears the arguments made at that hearing and tries to assist the parties to at least narrow the areas of dispute, or indeed resolve their dispute and come up with an agreement by consent. If consent is not reached at that hearing, the FDR judge will not hear the final hearing, because they have seen things that they cannot unsee and heard things that they cannot unhear.”
“It could lead to defendants, some of whom may be representing themselves and giving evidence, not being able to set aside their disagreement with the judge. There will therefore not be a fair, objective process with a judge and a fair-minded defendant who at least has confidence in the system. Of course, not every defendant will have objective confidence in the system, but at least we can assist the process by not creating an opportunity for the defendant to disagree with a judge’s allocation decision and then have to face the same judge making a decision on their innocence or guilt in the trial itself. I use the analogy of juries, because that is what we are discussing, albeit not under this amendment. An important example arises in the family courts, when two people are contesting finances during a divorce.”
“It is not just about whether a judge was clouded by the earlier decision-making process. In truth, in the vast majority of cases we can never know. We do not want to get into philosophy here, but some philosophers may argue that judges themselves do not realise when they are clouded. Probably more relevant in practice, though, is the confidence that the defendant has in the judge’s decision. If there has been a highly contentious, contested argument about where the trial should be held, if the defendant did not get their way, which in my view they should have, because I do not agree with this legislation, and if the defendant does not believe that their case is being tried properly and sees bias in the judge, that will make the trial harder to run even if it is not a reasonable view to hold.”