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October 14, 2016

Is the magistracy still a democratic institution?

The magistracy is in theory a democratic institution: representatives of the people sit in judgement on their peers.  One flaw in practice is that the magistracy is not representative of the communities it serves – due to court closures and bench amalgamations, magistrates are seldom local.  And magistrates are, on average, whiter, more middle class and much older than their local population.

But there is a new threat to the democracy of the institution itself.  A bench is a panel of three magistrates in the courtroom of which one is chair of the panel.  But Bench also refers to the group of all the magistrates in a particular area and the chair of the Bench has been elected by peers every year for decades.  Until recently each Bench numbered under 100 magistrates and was based on one magistrates’ court.   Over the last ten years, Benches have been forced to amalgamate, so that some Benches now have several hundred magistrates in them.  Many magistrates say that this has ruined their experience of sitting – in the old days they knew all the magistrates on their Bench and many friendships were forged in the retiring room.

There is a new proposal from an organisation called the National Bench Chairs’ Forum (which is administered by HMCTS), that all Benches should be amalgamated into one Bench for the whole of England and Wales and that Bench chairs should be selected not elected. The NBCF newsletter says  “the three key principles that we have proposed are: • A single bench for England and Wales • National leadership structure in conjunction with the senior judiciary • Selection of leadership magistrates”.

At no point does this newsletter explain why these changes need to be made, though it mentions local “discussions”.  I met a magistrate the other day who divulged that, despite no consultation with ordinary magistrates, candidates were already being tapped on the shoulder to put themselves forward for selection. And the person tapping shoulders is an employee of HMCTS, not a fellow member of the judiciary. Neither does anyone knows who will do the selecting of Bench chairs (or “local leaders” given there will be no local Benches).

What could be the rationale for trampling on democratic procedures and structures? Is it that the managers of the court system want compliant Bench chairs? Apparently they say the Bench chair role is now a full time (unpaid) job and thus requires a particular kind of person.

Why on earth should you and I care if Bench chairs/local leaders are elected or selected? Because it is part of a trend to deprive ordinary magistrates of any influence over the system, and to treat them as “hired hands”. Electing the local Bench chair gave every magistrate a stake in the system, and gave the Bench chair credibility amongst their peers. Bench chairs. who were elected by peers, represented their interests and, when needed, fought their corner against proposals from HMCTS/the Senior Judiciary. Will “local leaders” who are selected have any credibility?  Will they dare to challenge?

Bench chairs have never been diverse, but this proposal threatens future diversity.  Few apart from the retired and wealthy can afford to become a Bench chair now, given the huge workload.  If people are being tapped on the shoulder because they have the time to do a full-time job for no pay, those people are unlikely to be poor, and are likely to have managerial experience.  That excludes most citizens.

And amalgamating all Benches into one Bench for the whole of England and Wales is also presumably about managerial convenience.  But it eliminates any localism left in the structure of the magistracy.

When magistrates say woefully that the government wants to destroy the magistracy, I always reassure them.  I don’t think most ministers and MPs want to get rid of the magistracy.  But slowly and surely, a lot of what made the magistracy local, independent and democratic is being dismantled bit by bit, as their numbers are decimated.