Courts and Tribunals Bill — Written evidence submitted by Mark Wyschna (CTB16)
Parliament bill publication: Written evidence. Commons.
Courts and Tribunals Bill (25th March 2026)
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Session 2021-22
Courts and Tribunals Bill
Written evidence submitted by Mark Wyschna to the Courts and Tribunals Public Bill Committee (CTB16)
EXECUTIVE SUMMARY
·
This submission addresses provisions within the Courts and Tribunals Bill affecting:
§
trial by jury,
§
custodial sentencing, and
§
rights of appeal.
·
These provisions engage foundational constitutional protections, not merely procedural rules.
·
It is accepted that Parliament possesses legal authority to legislate in this field.
However, modern constitutional law recognises that the exercise of that authority is subject to established constitutional principles, including:
§
the status of constitutional statutes,
§
the principle of legality, and
§
the requirement for clear and express language when departing from fundamental rights.
·
A threshold question therefore arises:
What constitutional standard governs Parliament when legislating to displace fundamental constitutional protections?
·
The submission does not oppose the Bill as a matter of policy.
It invites the Committee to consider whether the Bill:
§
expressly confronts and justifies any departure from those protections; or
§
proceeds by implication.
·
The Committee may wish to consider whether reforms affecting liberty and jury trial require clear, express, and constitutionally conscious enactment.
1. INTRODUCTION
1.
This submission is made in response to the call for evidence dated 11 March 2026 concerning the Courts and Tribunals Bill.
2.
It addresses the constitutional implications of provisions within the Bill relating to:
§
jury trial,
§
custodial sentencing, and
§
access to appeal.
3.
The submission draws upon previously prepared materials, including a briefing note and letter of amplification, but is presented here as a self-contained document in accordance with Committee guidance.
4.
It does not:
§
challenge the validity of existing legislation,
§
invite judicial intervention, or
§
advance a concluded constitutional claim.
5.
Its purpose is to identify a threshold constitutional question which arises directly from the Bill.
2. THE BILL IN CONTEXT
6.
The Bill proposes, inter alia:
§
removal or restriction of the right to elect trial by jury;
§
expansion of judge-only trials;
§
extension of custodial powers in magistrates’ courts;
§
restriction of rights of appeal.
7.
These measures engage:
§
lawful deprivation of liberty,
§
access to justice,
§
and the role of jury trial in serious cases.
8.
At the time of the 1688–89 settlement, these matters were not regarded as procedural conveniences, but as constitutional safeguards.
3. THE CONSTITUTIONAL QUESTION
9.
The submission raises the following question:
Where, if anywhere, did Parliament acquire authority to dismantle or displace rights and conditions declared at the Revolution Settlement to endure "for ever"?
10.
The settlement of 1688–89:
·
restored lawful government following abdication;
·
declared certain rights "true, ancient and indubitable";
·
required that they be "firmly and strictly holden and observed";
·
enacted that they should "stand, remain and be the law of this realm for ever."
11.
The constitutional settlement referred to above is reflected in a series of enactments including the Bill of Rights 1689, the Coronation Oath Act 1688, the Claim of Right 1689, the Act of Settlement 1701, and the Acts of Union 1707. These instruments, taken together, establish a settlement characterised by:
(a)
the declaration and preservation of rights;
(b)
the abolition of arbitrary power; and
(c)
the conditioning of authority through law and oath.
The submission does not rely upon these enactments as freestanding sources of modern legal challenge, but as evidence of the constitutional structure within which the present question arises.
12.
The submission observes that:
·
no express provision confers a power to dismantle those conditions;
·
no implied provision has been identified which does so.
13.
The question is therefore not one of legislative practice, but of constitutional authority at origin.
4. PRACTICE AND AUTHORITY DISTINGUISHED
14.
It is accepted that:
·
Parliament has legislated on the assumption of unlimited authority;
·
courts have applied such legislation accordingly.
15.
However, this reflects:
·
constitutional practice, not
·
demonstrated constitutional authority.
16.
The present question concerns whether authority:
·
was ever conferred at settlement,
·
or has instead been assumed through later doctrine and habit.
5.
CONSTITUTIONAL PRINCIPLES GOVERNING LEGISLATIVE POWER
17.
It is accepted that, as a matter of orthodox doctrine, Parliament possesses the legal authority to enact or repeal any statute.
18.
However, modern constitutional law recognises that the exercise of that authority is subject to established constitutional principles.
19.
In particular:
(a)
Certain enactments, including the Bill of Rights 1689, are recognised as
constitutional statutes
which are not subject to implied repeal (
Thoburn v Sunderland City Council
[2002] EWHC 195 (Admin));
(b)
Fundamental rights and constitutional principles may only be displaced by
clear and express statutory language
, applying the principle of legality;
(c)
The courts have recognised the existence of
fundamental constitutional principles
which Parliament must squarely confront when legislating (
R (HS2 Action Alliance Ltd) v Secretary of State for Transport
[2014] UKSC 3);
(d)
Parliamentary sovereignty itself has been described as a construct of the common law, not an unqualified historical absolute (
R (Jackson) v Attorney General
[2005] UKHL 56).
20.
Accordingly, the relevant question is not whether Parliament possesses authority in the abstract, but:
what constitutional standard governs the exercise of that authority when legislating to displace fundamental constitutional protections.
21.
The submission proceeds on the basis that:
(a)
rights such as jury trial, liberty, and access to justice attract heightened constitutional protection;
(b)
such rights cannot be curtailed by general or ambiguous legislative language;
(c)
any departure from them requires clear, express, and constitutionally conscious enactment.
6. JURY TRIAL AS A CONSTITUTIONAL CONDITION
22.
At the time of the settlement:
·
jury trial functioned as a constitutional safeguard in serious cases;
·
custodial punishment without jury trial was limited in scope and duration.
23.
Extended deprivation of liberty without jury trial was not constitutionally normal.
24.
The Bill’s provisions permitting:
·
removal of jury election,
·
expansion of judge-only trials,
·
increased summary custodial powers,
therefore, represent a qualitative change, not merely a procedural adjustment.
25.
This gives rise to the question:
·
whether such changes fall within Parliament’s custodial role,
·
or amount to revision of settlement-level conditions.
7. THE NATURE OF FUNDAMENTAL LAW
26.
The settlement of 1688–89 may be characterised as:
·
constitutive, not merely legislative;
·
conditional, not absolute;
·
foundational, not ordinary statute.
27.
It defined:
·
the conditions upon which lawful authority exists,
·
not merely the rules by which it is exercised.
28.
On that view, Parliament’s role is properly described as:
·
custodial (to maintain and apply),
·
rather than revisionary (to dismantle or extinguish).
8. OATH-BOUND AUTHORITY
29.
The settlement binds authority through oath, including:
·
the Coronation Oath,
·
statutory declarations.
30.
Authority exercised within the constitutional structure is therefore:
·
conditional,
·
not self-authorising.
31.
Legislative action affecting settlement-level protections raises:
·
a question of constitutional warrant,
·
not merely legal validity in application.
9. APPLICATION TO THE BILL
32.
The Bill engages this constitutional question in three principal respects:
(1) Jury trial
·
potential displacement of a constitutional safeguard in serious cases.
(2) Judge-only trials and summary jurisdiction
·
alteration of the historical boundary between minor and serious offences.
(3) Restriction of appeals
·
impact upon access to justice and correction of error.
33.
Each may be justified in policy terms.
34.
The submission asks whether they are justified in constitutional authority.
10. MATTERS FOR THE COMMITTEE
35.
The Committee may wish to consider:
36.
Whether the Bill engages settlement-level constitutional conditions;
37.
Whether authority to alter such conditions has been identified or assumed;
38.
Whether the distinction between:
·
custodianship of the constitution, and
·
revision of its foundations
has been sufficiently addressed;
39.
Whether further scrutiny is required before such reforms proceed.
40.
The Committee may also wish to consider whether:
·
where legislation affects jury trial or liberty,
·
an explicit statement of constitutional authority
should be required.
11. CONCLUSION
41.
This submission does not oppose the Bill.
42.
It identifies a prior constitutional question:
whether Parliament is exercising a power that has been demonstrated, or one that has been assumed.
43.
If such authority exists, it should be identifiable.
44.
If it cannot be identified, the issue is not legislative convenience, but constitutional integrity.
ANNEXTHRESHOLD CONSTITUTIONAL ISSUE
A. ISSUE
45.
Whether Parliament possesses lawful authority to enact provisions which dismantle or materially displace constitutional conditions established at the Revolution Settlement (1688–1701).
46.
Specifically, whether authority exists to:
·
remove or dilute jury trial in serious cases;
·
expand non-jury custodial punishment;
·
restrict appeal rights.
B. CORE PROPOSITION
47.
The settlement of 1689:
·
restored lawful government;
·
declared rights "true, ancient and indubitable";
·
required them to be strictly observed;
·
enacted them to endure "for ever."
48.
No express provision within the settlement identifies the conditions under which such protections may be displaced:
·
The submission proceeds on the basis that any such displacement must therefore be effected only by clear, express, and constitutionally conscious enactment.
C. LEGAL CHARACTER
49.
The settlement is:
·
constitutive,
·
conditional,
·
foundational.
50.
It defines the conditions of lawful authority itself.
D. CUSTODIANSHIP VS REVISION
51.
Parliament is conferred:
·
a custodial role.
52.
The settlement does not identify the constitutional conditions under which revision may occur.
·
The submission therefore proceeds on the basis that any such revision requires explicit and unambiguous legislative authority.
E. PRACTICE DOES NOT SUPPLY AUTHORITY
53.
Parliamentary sovereignty describes practice.
54.
It does not, of itself, determine the constitutional conditions governing the lawful exercise of that authority.
F. OATH-BOUND STRUCTURE
55.
Authority is exercised under oath-bound conditions.
56.
Legislative action contrary to those conditions raises a question of constitutional warrant.
G. CONSEQUENCE
57.
If authority exists, it must be identifiable.
58.
If it cannot be identified:
·
authority has been assumed, not conferred.
H. INVITATION TO PARLIAMENT
59.
This submission invites Parliament to:
60.
identify the source of authority, if it exists;
61.
distinguish between custodianship and revision;
62.
consider whether reforms of this character require explicit constitutional justification.
I. FINAL STATEMENT
63.
The Bill engages a threshold constitutional issue:
whether Parliament is exercising its undoubted legislative authority in a manner which clearly, expressly, and constitutionally justifies any departure from fundamental protections.
March 2026
Prepared 25th March 2026
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