Courts and Tribunals Bill — Written evidence submitted by Aftab Ali (CTB27)

Written evidence submitted by Aftab Ali to the Courts and Tribunals Public Bill Committee
(CTB27)

Clauses addressedClauses 1-7, Part 1
Status: Original submission - not previously published in any form
Note: A separate written evidence submission was made to the Justice Committee's
legislative scrutiny inquiry on 11 March 2026. This is a distinct and original submission to the
Public Bill Committee, prepared specifically for clause-by-clause scrutiny.

ABOUT THE SUBMITTER
1. I am an independent researcher with a sustained focus on English constitutional law and
the common law tradition. This submission is grounded exclusively in primary legal sources:
Magna Carta 1297, the Bill of Rights 1689, Coke's Institutes, Blackstone's Commentaries, and
the constitutional case law of the English common law tradition. No political position is
advanced. The argument is lawful. The authority is in the books.
SUMMARY
2. Clause 6 of this Bill delegates to a Minister, by negative statutory instrument, the power
to extend custodial sentencing without jury to 24 months. That delegation is constitutionally
impermissible under R v Secretary of State for the Home Department ex parte Pierson [1998]
AC 539. The Public Bill Committee should remove it.
3. Clause 7 of this Bill removes the automatic right of appeal by complete rehearing and
replaces it with an unguarded permission stage. That removal violates the constitutional right
of access to the courts established in R v Lord Chancellor ex parte Witham [1998] QB 575 and
confirmed in R (Unison) v Lord Chancellor [2017] UKSC 51. The Public Bill Committee should
add an independent review mechanism.
4. Clauses 1 -5 remove the natural person's right to demand trial by peers, guaranteed by
Magna Carta 1297 (25 Edw. 1 c. 9), Chapter 29 - a constitutional statute that can be overridden
only by express words directed at the statute itself. This Bill does n ot contain those words.
The Public Bill Committee cannot supply them by amendment. The clauses therefore cannot
be rendered constitutionally compliant at Committee Stage and should not proceed without
the Government first producing the constitutional asses sment described at paragraph 24
below.
PART I - CLAUSE 6 AND CLAUSE 7: THE IMMEDIATELY ACTIONABLE CONSTITUTIONAL
DEFECTS
Clause 6 - The Pierson Principle
5. Clause 6 increases the maximum custodial sentence a magistrates' court may impose to
18 months. It also confers on a Minister the power to increase that ceiling to 24 months by
negative statutory instrument, without further primary legislation and with out full
parliamentary scrutiny.

6. Lord Browne-Wilkinson stated in R v Secretary of State for the Home Department ex parte
Pierson [1998] AC 539 at 575:
"A power conferred by Parliament in general terms is not to be taken to
authorise the doing of acts by the donee of the power which adversely affect
the legal rights of the citizen or the basic principles on which the law of the
United Kingdom is based unless the statute conferring the power makes it clear
that such was the intention of Parliament."
7. The delegated power in Clause 6 is a power conferred in general terms. The act it
authorises - extending the period for which a natural person may be imprisoned without jury
trial - directly and adversely affects the fundamental legal right of the citi zen not to be
condemned except by judgment of peers, guaranteed by Magna Carta 1297, Chapter 29. The
statute does not make it clear that Parliament intends to override that right by this
mechanism. The Pierson principle is therefore triggered by the delegation as drafted.
8. The constitutional damage of the Clause 6 delegation is structural, not merely political.
Combined with Clause 1's removal of the defendant's right to elect jury trial, the effect is that
a natural person may be imprisoned for up to 24 months in a cour t where no jury sat and no
election was available, at the ceiling set by ministerial instrument rather than by primary Act
of Parliament. The scope of jury -free imprisonment becomes a ministerial variable. That is
constitutionally impermissible.
9. The remedy available to this Committee is precise and contained: remove the delegated
power to extend to 24 months by secondary legislation. Retain the primary legislative
provision of 18 months if Parliament so chooses - that is a political judgment this submission
does not address. But the delegation of any further increase to ministerial instrument,
without the constitutional protection of full parliamentary scrutiny, cannot stand under
Pierson.
Clause 7 - The Witham/Unison Principle
10. Clause 7 replaces the automatic right of appeal to the Crown Court by way of complete
rehearing with a permission stage. A person convicted by a magistrates' court must first
obtain permission before their appeal can proceed. No independent review of a refused
permission is provided.
11. Laws J held in R v Lord Chancellor ex parte Witham [1998] QB 575 that access to the courts
is a constitutional right which cannot be abrogated by general words in a statute. The same
judge, as Laws LJ, applied and extended this principle in Thoburn v Sunderland City Council
[2002] EWHC 195 four years later. These are not isolated decisions. They form part of a single
continuous line of constitutional development spanning 1998 to 2017.
12. Lord Reed confirmed the full constitutional scope of this right in R (Unison) v Lord
Chancellor [2017] UKSC 51 at [66]:
"The constitutional right of access to the courts is inherent in the rule of law...
Where the right is taken away, there is no access to justice in any meaningful
sense."
13. Clause 7 places a state -controlled gate between a convicted natural person and the
correction of an unsafe conviction. The gate is operated by the same court system whose
decision is being challenged. There is no independent judicial officer to review a refused

permission. A person wrongly convicted by a magistrates' court, refused permission to appeal
by that same system, has no further recourse under Clause 7 as drafted. The gate is
constitutionally unguarded.
14. A 41% success rate on current appeals is not evidence that the filter is working. It is
evidence that the automatic right is working - that the mechanism identifies and corrects
substantial errors. The constitutional question is not how many current a ppeals succeed but
how many meritorious future appeals will be stopped at an unguarded gate before they can
be assessed on their merits.
15. The remedy available to this Committee is specific: add to Clause 7 an independent review
mechanism for refused permissions, operated by a judicial officer with no connection to the
magistrates' court whose decision is under challenge. This is not an amendment that requires
the Bill to be withdrawn. It is an amendment that makes Clause 7 constitutionally defensible.
Without it, the first natural person refused permission has an immediate Unison/Witham
judicial review claim.
PART II - CLAUSES 1-5: THE CONSTITUTIONAL STATUTE THIS BILL DOES NOT NAME
The Right Being Removed
16. Magna Carta 1297 (25 Edw. 1 c. 9), Chapter 29, remains in statutory force:
"No freeman shall be taken or imprisoned... nor will we not pass upon him, nor
condemn him, but by lawful judgment of his peers, or by the law of the land."
17. Per judicium parium suorum: by the judgment of his peers. Clauses 3 -5 create a Bench
Division in which a single state -appointed judge condemns the natural person to
imprisonment of up to three years. Clause 1 removes the right to demand otherwise. The Bill
does not name Magna Carta Chapter 29. It does not name this right. That silence is not a
drafting oversight. It is the constitutional defect.
18. Coke, Second Institute (1642), p. 48, expressly translates per judicium parium suorum as
judgment by jury. Blackstone, Commentaries (1765), Book III, Ch. 23, equates this directly with
trial by jury as settled constitutional interpretation continuous from 1215 to the present.
Blackstone described it as "the most transcendent privilege which any subject can enjoy or
wish for, that he c annot be affected either in his property, his liberty, or his person, but by
the unanimous consent of twelve of his neig hbours and equals." All three of Blackstone's
absolute rights - personal security, personal liberty, and private property - are engaged by
Bench Division imprisonment of up to three years.
19. Coke stated in Second Institute (1642), p. 51: "This charter hath been confirmed above
thirty times... wheresoever any act of Parliament is against Magna Carta, it shall be void." This
is not a historical curiosity. It is a constitutional proposition restated from Dr Bonham's Case
(1610) through Jackson [2005].
20. Vaughan CJ identified in Bushell's Case (1670) Vaughan 135 the exact constitutional
catastrophe Clauses 3-5 normalise: "for then the jury would be but a troublesome formality
and the judge would be the real trier." Under Clauses 3 -5, the judge is the real trier. Two
recent cases demonstrate what is lost. In R v Ponting , Central Criminal Court (1985), a jury
acquitted against the judge's direction, exercising the community's constitutional veto. Under
this Bill, that is a Bench Division case: a judge would have convicted. In R v Colston , Bristol

Crown Court (2022), defendants were acquitted on public interest grounds. Again a Bench
Division case under this Bill.
The Thoburn/HS2 Standard: Express Words Required
21. Laws LJ held in Thoburn v Sunderland City Council [2002] EWHC 195 at [63] that a
constitutional statute cannot be impliedly repealed and that its override requires words "so
specific that the inference of an actual determination to effect the result contended for was
irresistible." Lords Neuberger and Mance confirmed in HS2 Action Alliance Ltd v Secretary of
State for Transport [2014] UKSC 3 at [207], in a judgment agreed by all seven Supreme Court
justices, that it is "certainly arguable that there ma y be fundamental principles... of which
Parliament... did not either contemplate or authorise the abrogation." That is the Supreme
Court recognising a class of constitutional fundamentals Parliament cannot silently abrogate.
22. This Bill amends the Magistrates' Courts Act 1980 and the Senior Courts Act 1981, which
are procedural instruments downstream of Magna Carta Chapter 29, while leaving Magna
Carta 1297 standing and un -repealed. That is precisely the indirect implied me chanism of
amendment that Thoburn prohibits. The determination to override the constitutional
guarantee cannot be "irresistible" from a Bill that never names the right, never names the
statute, and never acknowledges that any constitutional protection is being removed.
23. This Committee cannot cure this defect by amendment. The Thoburn/HS2 standard
requires express words directed at Magna Carta Chapter 29 itself. That requires a clause in
the Bill expressly naming and engaging with Magna Carta 1297, Chapter 29. The Government
has not drafted such a clause. Adding it at Committee Stage is a constitutional step of the first
order - it requires the Government to acknowledge, expressly and on the parliamentary
record, that it is overriding a constitutional statute. That acknowledgement is precisely what
Simms requires.
The Simms and Crystal Clear Standards
24. Lord Hoffmann stated in R v SSHD ex parte Simms [2000] 2 AC 115: "Fundamental rights
cannot be overridden by general or ambiguous words... Parliament must squarely confront
what it is doing and accept the political cost." Baroness Hale added in R (Jackson) v Attorney-
General [2005] UKHL 56 at [159] that the courts would decline to hold Parliament had
interfered with fundamental rights unless it had made its intention "crystal clear." That is a
higher standard than "squarely confront." This Bill satisfi es neither. The ECHR memorandum
does not cite Magna Carta Chapter 29, does not apply Thoburn, and does not address Simms.
Parliament has been formally placed on notice. Courts will one day read this record.
RECOMMENDATIONS TO THE COMMITTEE
25. Each recommendation below is framed as a specific amendment or requirement within
the competence of this Committee. Each is grounded in binding or persuasive authority. Each
creates a constitutional record that is permanent, whether or not the recomme ndation is
accepted.
Recommendation 1 - Remove the Clause 6 delegation. The power to extend custodial
sentencing to 24 months by negative statutory instrument (Clause 6(2)) must be removed.
The scope of imprisonment without jury is a constitutional ceiling that can only be varied by
primary legislation with full parliamentary scrutiny. The Pierson principle is triggered by this

delegation as drafted. If the Government retains it, the Pierson ground of judicial review is
available the moment the secondary instrument is made.
Recommendation 2 - Add an independent review mechanism to Clause 7. Clause 7 must be
amended to provide that a person refused permission to appeal under the new permission
stage may apply for review of that refusal to an independent judicial officer - one with no
connection to the magistrates' court whose decision is under challenge. Without this, Clause
7 as drafted is incompatible with Witham and Unison and is immediately susceptible to
judicial review on the application of the first person refused permission.
Recommendation 3 - Require a formal constitutional assessment of Clauses 1 -5. Before
Clauses 1 -5 proceed further, the Government must produce a formal constitutional
assessment - additional to and distinct from the ECHR memorandum - which expressly
addresses: (a) whether Magna Carta 1297, Chapter 29 is engaged; (b) whether the
Thoburn/HS2 standard is satisfied; (c) whether Parliament has squarely confronted what it is
doing in the Simms sense; and (d) whether the intention to override a fundamental right is
crystal clear in the Jackson sense. If the Government declines to produce this assessment, the
record will permanently show that Parliament was placed on formal notice and did not
respond.
Recommendation 4 - Require an explanation of HRA s.11. The Government must explain why
HRA 1998, s.11 does not separately protect the right guaranteed by Magna Carta 1297,
Chapter 29, above and beyond the Article 6 ECHR floor. The Government must either (a)
concede that s.11 separately protects the right, requiring different and more explicit authority
to override it; or (b) argue that s.11 does not apply - which requires arguing that Magna Carta
1297 is not a law having effect in the United Kingdom, a position that is factually false since it
is a statute on the statute book. There is no third answer.
CONCLUSION
26. The Clause 6 delegation is removable by this Committee and its removal is required by
Pierson. The Clause 7 permission stage can be made constitutionally defensible by this
Committee if an independent review mechanism is added, as required by Witham and Unison.
Both amendments are within this Committee's competence and are grounded in binding
authority. Clauses 1 -5 cannot be made constitutionally defensible at this stage without the
Government first producing the constitutional assessment that Simms requires and
Thoburn/HS2 demands.
27. Parliament has been formally placed on notice. The authority for what Clauses 1-7 of this
Bill propose is not to be found in our books.
It is not law.

AUTHORITIES CITED
Primary Sources
Magna Carta 1297 (25 Edw. 1 c. 9), Ch. 29 - in statutory force. Petition of Right 1628. Bill of
Rights 1689, Art. 3.
Sir Edward Coke, Second Institute of the Laws of England (1642), pp. 48, 51.

Sir William Blackstone, Commentaries on the Laws of England (1765), Book III, Ch. 23.
Cases
Bushell's Case (1670) Vaughan 135.
Entick v Carrington (1765) 19 Howell's State Trials 1029.
R v Lord Chancellor ex parte Witham [1998] QB 575, per Laws J.
R v Secretary of State for the Home Department ex parte Pierson [1998] AC 539, per Lord
Browne-Wilkinson at 575.
R v SSHD ex parte Simms [2000] 2 AC 115, per Lord Hoffmann.
Thoburn v Sunderland City Council [2002] EWHC 195 (Admin); [2003] QB 151, per Laws LJ at
[63].
R (Jackson) v Attorney -General [2005] UKHL 56, per Lord Steyn at [102]; Baroness Hale at
[159].
AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46, per Lord Hope at [51].
HS2 Action Alliance Ltd v Secretary of State for Transport [2014] UKSC 3, per Lords Neuberger
and Mance at [207].
R (Unison) v Lord Chancellor [2017] UKSC 51, per Lord Reed at [66]-[68].
Legislation
Human Rights Act 1998, ss. 3, 4, 11, 19. Courts and Tribunals Bill 2026, Clauses 1 -7.
Magistrates' Courts Act 1980, s. 20.

April 2026