The role of the magistracy: follow-up Contents

3Recruitment and diversity

Our predecessor’s main conclusions and recommendations

30.The 2016 Committee noted a dearth of younger applicants to the magistracy, attributable in part to reluctance of employers to release staff. In some areas, there were difficulties in recruiting magistrates from Black and Minority Ethnic (BAME) groups. The Committee concluded that having a large cohort of magistrates approaching retirement presented an opportunity to promote diversity among those recruited to replace them. It supported doing more to encourage employers in all sectors to support magistrates who work for them. The Committee recommended a workforce planning exercise for the magistracy, together with a comprehensive strategy for increasing its diversity, a review of the magistrates’ Financial Loss Allowance and the creation of a kitemark scheme for employers.39

Recruitment of magistrates

31.No formal training or legal qualifications are needed to become a magistrate; anyone over 18 and under 65 may apply, provided they demonstrate six key qualities: good character; commitment and reliability; social awareness; sound judgement; understanding and communication; maturity and sound temperament. Forty-four Local Advisory Committees on Justices of the Peace are responsible for recruiting magistrates within their areas.40 These committees assess annually how many new magistrates are needed, interview applicants and recommend successful candidates to the Lord Chief Justice, who delegates decisions on appointments to the Senior Presiding Judge. Local Advisory Committees also deal with allegations of misconduct by magistrates.

32.On 12 October 2017 the MoJ began consultation on changes to the committees’ structure and operation. The response to the consultation set out the MoJ’s intention to create 24 Advisory Committees responsible for operating a clear and consistent national recruitment process.41 Conduct would be handled by seven separate, regional committees. The advantages of introducing a common approach to recruitment were recognised by Jo King JP, who thought that “anyone applying to the magistracy should be confident they are applying to a consistent process and they are judged by consistent standards.”42

33.There was widespread agreement among those who gave evidence to us that the number of magistrates is insufficient. The following table illustrates the substantial fall in that number over the past six years.

Total headcount of magistrates in England and Wales, 1 April 2012 to 1 April 2018

Source: Judicial Diversity Statistics, 2018

34.Magistrates at our informal evidence session reported shortfalls in some areas; one participant said that following a six-year moratorium on recruitment her local bench, which was supposed to have 250 magistrates, had a shortfall of 55, and was due to lose more magistrates soon. Transform Justice wrote:

The magistracy is facing a workforce crisis not of its own making. [ … ] The numbers of magistrates to be recruited are decided by staff in HMCTS and the judicial office. They appear to have made some major miscalculations in recent years. Since 2008 many regions have been forbidden from recruiting any magistrates for anything up to three years.43

35.John Bache JP was emphatic that “[w]e need to recruit more magistrates.” He pointed out that magistrates quite frequently sit as benches of two, rather than three.44 The Magistrates Association told us that during 2017–18 there were benches of two in nearly 40,000 court sessions, 15% of the total. The problem was, they said, likely to get worse in the next decade:

In addition, rota teams are experiencing great difficulty in finding magistrates to cover the necessary sittings. Magistrates are consequently contacted regularly and asked to take on additional sittings, often at short notice. Moreover, more than 8,000 magistrates will reach the age of 70 in the next decade and under current legislation will therefore need to retire.45

36.Lady Justice Macur, the Senior Presiding Judge, accepted that there were “too few magistrates at the moment”.46 Only in an exceptional case should two magistrates sit on a panel of two rather than three, she said, and recently “some very unfortunate consequences” had arisen from having panels of two:

If there is a difference of opinion in a case, whether on a determination of the facts or a decision as to the exercise of a discretion, particularly in family cases, that case must be adjourned for another bench. There is therefore a delay. It is particularly inimical in the case of children and the cases that concern them, but it could be equally disastrous for someone who wants to have a trial disposed of and is waiting to know whether they are going to be convicted of a criminal offence that may deter them from travelling or job prospects.47

37.Some participants in our informal evidence session with magistrates were concerned about the absence of funding for a national recruitment campaign to increase awareness of the magistracy and attract applicants for vacancies. The Magistrates Association called for “a very significant recruitment and training programme” to be taken forward without delay, with funding being made available for advertising and promotion, including in BAME communities. This could build on the work of the Association’s Magistrates in the Community programme, an initiative that aims “to demystify and promote the magistracy” through magistrates visiting schools and community groups.48

38.The then Minister, Lucy Frazer QC MP, assured us that the Ministry of Justice was developing a three-year strategy for recruitment, which involved assessing how many and what sort of magistrates were required. That strategy was due to be rolled out in June 2019 after it had been tested with the judiciary and others.49 She explained that several steps had been taken to speed recruitment: requests for criminal records checks would take place during the process, rather than at the end; applicants would undergo both interviews in one day, rather than three months apart; and applications would be sifted rather than facing an arbitrary cut-off after a set number of applications had been received.50

39.The current shortfall in the number of magistrates is as frustrating as it was foreseeable. The Government’s failure to undertake the workforce planning exercise the Justice Committee recommended in 2016 has led to the current predicament. The new three-year strategy for magistrate recruitment and other initiatives to speed recruitment are welcome, but it is much to be regretted that it has taken a near crisis to prompt the Government into belated action.

Diversity within the magistracy

40.At our recent oral evidence session looking at progress in the implementation of his review, David Lammy MP made very clear his concerns about lack of diversity within the magistracy:

I want absolutely to emphasise that there are real issues with selecting white, working-class magistrates, never mind ethnic minority magistrates. Ethnic minority magistrates are well below the population. It is standing at about 11.5% at the moment. There are some areas, such as those from Somali, Roma and Gypsy backgrounds, where they are absolutely non-existent. That is a real problem. There is huge variation across benches and across the country.51

Judicial Diversity Statistics for 2018 record that 17% of non-legal members of Tribunals—a group comparable to magistrates—are from a BAME background. This means that non-legal members have higher BAME representation than that of the working age general population at all age groups.

41.The most recent judicial diversity statistics allow a comparison to be made between the profile of the magistracy in 2018 and its profile in 2016; little change has occurred.52

The 2018 statistics note that the average age of magistrates is 58.8 years. As illustrated by the following chart, the magistracy has a significant bias towards the over 50s.

The percentage of magistrates by age band, 1 April 2018

Source: Judicial Diversity Statistics, 2018.

The chart below illustrates the regional variation in BAME representation within the magistracy, in comparison to the overall BAME representation among magistrates.

BAME representation of magistrates, by region, 1 April 2018

Source: Judicial Diversity Statistics, 2018

42.Some magistrates who participated in our informal evidence session observed that the ethnic diversity of their areas was not reflected in the membership of the local bench, in spite of efforts to overcome barriers. It was suggested that going into temples and mosques was more likely to be successful in attracting applicants from BAME communities than targeting efforts at professionals unlikely to have enough time to commit to the role. It was also suggested that more could be done by public bodies such as the NHS that have a high proportion of BAME staff.

43.The role of word-of-mouth recruitment to the magistracy was acknowledged by Lady Justice Macur:

It is often the case that the best recruiting tool we have at the moment is a magistrate making clear among their colleagues, friends and social circle what a worthwhile thing it is. That connection can bridge gaps.54

However, in our informal session it was observed that, when applicants for the magistracy found out about the role through friends or by word of mouth, this could lead to new recruits being “more of the same”.

44.Social diversity within the magistracy concerned Penelope Gibbs of Transform Justice, who considered class “the elephant in the room”, and pointed out that no data are collected on existing magistrates or new recruits, although data on professional background are collected for paid judges. Similarly, participants in our informal session held a prevailing view that the magistracy lacks diversity in social background and that it is difficult to attract applications from a wide range of people. It was suggested that the application process itself might put off people from applying. In oral evidence, Jo King JP said:

There is still a tendency for the public to think of magistrates as being perhaps professional people, who are retired, and that is a very outdated view of magistrates. We really need to support and encourage those people in what perhaps might have been called white or blue-collar jobs, who in my experience make excellent magistrates.55

Mrs King said work was under way to address this issue, through representatives of HMCTS and the Judicial Office going out to talk to “non-standard groups of people”, such as employees and tenants of housing associations. In her view, a lack of awareness-raising and engagement with the public had been detrimental to diversity in recruitment: “[i]f the general population do not identify themselves as potential magistrates, then however good our recruitment process is, we are going to be dealing with a very limited pool of candidates.”56

45.The Government’s response to the previous Committee’s 2016 report acknowledged that “the time is right” to consider carefully its approach to recruitment of magistrates. Lucy Frazer QC MP assured us that the Government was taking steps to increase diversity by advertising the recruitment of magistrates on social media—on LinkedIn and Twitter—and by targeting organisations such as mosques and universities. She commented: “We need to get different types of people in, and we are already trying to do that in a number of ways.”57

46.We are disappointed that the Government’s acceptance, in 2016, that “the time is right” to consider carefully its approach to recruiting magistrates and its acknowledgement of the need for more proactive encouragement of applicants from all backgrounds has led to little progress so far. We remain unconvinced that the various steps mentioned by the then Minister amount to a sufficiently strategic approach. We recommend that the Government, working with the senior judiciary, revisit as a matter of urgency the 2016 Committee’s recommendation of a wider and more proactive advertising strategy for potential applicants to the magistracy.

47.We recommend that the Judicial Diversity Statistics be expanded to include data relating to the professional, social and educational background of magistrates, and that data collection be resumed on magistrates who declare a disability.

Employed magistrates

48.The survey of magistrates conducted by the Judicial Office and HMCTS found that two-thirds of respondents were not in employment. Of those employed, 40% were not given paid time off by their employer to cover magisterial duties.58 Magistrates at our informal evidence session recognised that reluctance among employers to release employees for magisterial duties created particular barriers for younger people who wanted to become magistrates. They thought that employers had in previous times been more generous in allowing magistrates time off, but no longer appear to acknowledge the magistracy as a public service; a small business may not have the resources to provide cover, and someone trying to build a career may be reluctant to take time away from the workplace. Similarly, Lady Justice Macur thought that young people on a career ladder might be reluctant to “rock the boat” with their employer.59

49.Lady Justice Macur also underlined the financial difficulties faced by small firms who cannot afford to lose employees for a half-day or a full-day court session, even though magistrates provided clear benefits that could be taken back to the workforce, such as teamwork and analytical skills. She considered that there were similar problems with certain public authorities, such as national health trusts and educational establishments, who cannot afford to release their employees, a point echoed by Ian Clarkson JP.60

50.Duncan Webster JP suggested that such barriers might be overcome by making it a legal requirement for employers to release staff for magisterial duties, similar to the requirement that applies for jurors, although he recognised that this might not find favour in all quarters.61 Lucy Frazer QC MP emphatically dismissed this idea, saying: “That is not something we can think about”.62

51.In 2016, the Government said it would “carefully consider” the Committee’s recommendation for a kitemark scheme to recognise and reward employers who support the magistracy. Ms Frazer said that the Government was not pursing such a scheme but was “looking at a number of ways to try to encourage employers to allow their employees to take time off.”63 She confirmed that the MoJ endorsed the Magistrates Association’s “Employer of the Year” award,64 presented to Lloyds Bank in 2018, and said that her Department was “supporting individual employers.”

52.Witnesses voiced concerns about the Government’s failure to increase the Financial Loss Allowance for magistrates, unchanged since May 2010.65 Jo King JP remarked: “Magistrates should not be subsidising HMCTS.”66 One participant in our informal evidence session called the process for claiming the Allowance “labyrinthine”, as well as describing the claimable amount as very modest.

53.Lucy Frazer QC MP told us that the Government was reviewing judicial expenses and that magistrates’ expenses would be reviewed after that and in the course of this year.

54.We are greatly concerned about the barriers facing employees who want to become magistrates, which undermine efforts to widen the age profile of the magistracy. We recommend that the Government introduce a kitemark scheme for employers and bring forward proposals to legislate for mandatory employee release for magisterial duties.

55.We are disappointed by the delay in reviewing the Financial Loss Allowance, leading to a situation in which some magistrates are effectively subsidising HM Courts and Tribunals Service. This is clearly unacceptable. The Government must fulfil its commitment to completing the review of the Financial Loss Allowance by the end of 2019.

Retirement age of magistrates

56.Magistrates are subject to a mandatory retirement age of 70.67 The Magistrates Association argues strongly that the law should be changed so that magistrates can continue to sit beyond this age, if an area has an identified need that cannot be met by recruitment alone; this would be consistent with the rule for judges, who can continue sitting if there is a business need.68 The Association’s Chair, John Bache JP, suggested that specific shortages of presiding justices and magistrates in the Family Court might be alleviated by this means.69

57.Lady Justice Macur said the Judicial Executive Board recently decided that, “at the appropriate time”, magistrates’ ability to sit in what would otherwise be retirement would be brought into line with the position for the salaried judiciary, assuming there was a business need and a magistrate had continuing competence.70 However, the Board thought that this should be considered alongside a review of the terms and conditions of the salaried judiciary; legislation would be necessary.

58.We welcome the decision in principle of the Judicial Executive Board to allow magistrates to sit beyond the age of 70, subject to business need and continuing competence. We see no reason for a distinction to be made between magistrates and the paid judiciary in this regard.

39 The relevant Chapter of the Committee’s report, including recommendations, can be found here.

40 Most Local Advisory Committees are chaired by the Lord-Lieutenant for the area, who is the monarch’s personal representative in each county of the United Kingdom.

53 Of the population as a whole, around 14% are from BAME backgrounds.

64 Magistrates Association created its Employer of the Year award to recognise those organisations that are leading the way in supporting their employees to sit as magistrates.

65 In its response to the previous Committee’s report, the Government stated that it would conduct an overarching review of judicial expenses in 2017.

67 Under the Courts Act 2003

68 MAG0001. A salaried judge’s appointment can be extended up to the age of 72 in 12-month incremental stages, subject to a business case and his/her continuing competence, and thereafter up to 75 subject to the consent of the relevant heads of division, Senior Presiding Judge and Lord Chief Justice (see Q100)

Published: 18 June 2019