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July 14, 2019

Why leadership magistrates should be representatives of the people

Does judicial diversity still matter? The process of selecting candidates to be “leadership magistrates” suggests not always.

The whole reform has been a bit odd. There used to be an organisation called the National Bench Chairmen’s Forum. It was made up of chairs of local benches, elected by their peers to sit on the forum. For some reason (none of the explanations make much sense) it was decided this should be abolished to be replaced by a number of “leadership magistrates” – one for each region and a national lead. A survey of all magistrates revealed that most doubted the need for this change. But if change was to be imposed, a significant majority wanted leadership magistrates to be elected. Mysteriously, these views were set aside and it was decided that leadership magistrates should be appointed by the Senior Judiciary. The magistracy used to be proud of its independence and the professional judiciary had no involvement in the appointment of magistrates to any role. But things have changed.

Last year was the first year leadership magistrates were recruited. When senior judges are recruited, the posts are advertised and the recruitment process is explained on the Judicial Appointments Commission (JAC) website. The JAC are regularly criticised for failing to facilitate a more diverse judiciary. The JAC has faults, but they try hard and are open to challenge.

The process of recruiting leadership magistrates is totally different. There is no public access to the recruitment advertisement, to the process, or to who the decision-makers are. Through friends I have seen the details from last and this year’s recruitment rounds (I’m not clear why they are recruiting this year – presumably because two people recruited last year have resigned). Last year I was shocked to note that there was absolutely no mention of diversity in the role description, nor even a diversity monitoring form. In fact no mention of diversity at all. This despite the candidates needing to “provide a positive role model for the magistracy” and “provide leadership in a rapidly changing environment”.

Lack of diversity is a longstanding issue for the magistracy. The government and the senior judiciary have repeatedly confirmed their desire to improve the diversity of the whole judiciary – paid and unpaid. In fact both the Lord Chancellor and the Lord Chief Justice are legally obliged to promote the diversity of the judiciary over and above compliance with the Equality Act.

Last year I tweeted a long and well read thread criticising this process of recruiting leadership magistrates. I pointed out to the Justice Committee that the process seemed to ignore diversity altogether. But this year the Senior Judiciary initiated exactly the same process, with exactly the same lack of transparency and again without any mention of diversity. The first time could be seen as an oversight, but to do it twice seems odd.

Why does this matter? Because the magistracy is seen as the preserve of a particular type of person and because that view has some basis in reality. There are a higher proportion (13%) of BAME barristers than there are BAME magistrates (12%) – a telling contrast given the much higher barriers to entry for barristers. Magistrates are overwhelmingly over 50 and middle class. Those in leadership positions (chairs of panels, chairs of the bench, office holders at the Magistrates’ Association) are even less diverse than the “rank and file”.  They fulfil their roles well, but confidence in the magistracy is undermined if they do not represent the people.

I can think of few public institutions which completely ignore diversity in their recruitment processes. For the judiciary to do so when the Lord Chief Justice has a statutory commitment to promote diversity is pretty extraordinary. It would be good to know why.

NB If anyone would like to see the paperwork for these roles please email me

NNB I wrote to the Lord Chief Justice and received a letter back from his Assistant Private Secretary