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Do people care about judicial and magistrates’ diversity any more?

Penelope Gibbs
22 Sep 2020

Once the diversity of the judiciary, or rather the lack of it, made national news. But it’s years since the subject has created waves. Liz Truss was the last Lord Chancellor to champion change.

So it is off the front page because the problem is solved? Far from it. New figures suggest the magistracy is heading to become less ethnically diverse and older, and the senior ranks of the paid court judiciary are still overwhelmingly pale and male – only a fifth of the top court judges are women. The latest stats suggest that women and BAME candidates are less likely to get through JAC selection procedures – women had a 4% lower success rate and BAME candidates a 17% lower success rate. Either the wrong people are applying, or there is bias in the recruitment process.

Some areas have made huge progress – the legal profession is much more diverse than the magistracy or the higher echelons of the court judiciary. And tribunal judges are a shining example of progress – 47% are women and 12% BAME.

Despite the lack of media or campaigner pressure, the government and judiciary seem to be making some efforts to accelerate progress, but there is a new barrier of their own creation.

The government have proposed to raise the retirement age of judges and magistrates beyond 70. They have been lobbied hard about this by magistrates for years (and maybe paid judges too). Many magistrates feel they are still well able to do the role over 70, have lots of spare time and hate being forced to step down. They may well be right, but the magistracy is already overwhelmingly old (82% are over 50) and the bias in recruitment is still towards older candidates (58% new recruits are over 50). The consultation document admits that the proposal to raise the retirement age will have a negative effect on diversity (-1.3% impact on women in paid judiciary, -0.8% impact on BAME magistrates as well as reducing the proportion of younger judges). Given the glacial progress in improving diversity, this then seems an own goal.

The driver for the proposal to increase retirement ages seems to be problems in recruiting enough judges and magistrates. But other ways of filling the recruitment gaps are not explored. And there is no plan put forward to counteract the damage to diversity which raising the retirement age would wreak.

I have some sympathy for magistrates who want to sit beyond 70. My own chair of trustees, Chris Stanley, was at the top of his game when he was forced to stand down. But diversity matters. To retain their credibility, magistrates need to be representatives of the people.

The Lord Chief Justice’s wrote in relation to the new diversity statistics “compared with judges, a higher proportion of magistrates are women, or BAME. It is clear, however, that further progress is needed, particularly at more senior levels”. I’m not convinced that this pinpoints the diversity gaps – women are over-represented among new recruits to the magistracy and there is no data on the diversity of magistrates “at senior levels”. And if progress is needed, its not clear how it will be achieved. There is a Judicial Diversity Forum, on which sits the Lord Chief Justice and the Lord Chancellor. It has published a coherent and full strategy, but it makes absolutely no mention of magistrates. A strategy for the magistracy was published by the judiciary in December but its proposals to increase diversity seem a little thin:

  • Magistrates will share ideas to support attraction to the role and increase the diversity of new applicants.
  • Agreement from Ministry of Justice will be sought to establish a national steering group, develop and promote a national profile for the magistracy across England and Wales and thereby aid recruitment, increase diversity and assist advisory committees

Lets hope the raising retirement age proposal hasn’t been brought in instead of a proper, well evidenced strategy for the recruitment of magistrates. So far thinking appears to have been done by a few well meaning advisory groups of magistrates, most of whom have no expertise in recruitment or diversity.

We have a recruitment crisis in the magistracy. Its resolution requires radical action and a proper budget, not a fudge which will push the average age of magistrates still higher.

If you want to respond to the government’s consultation on raising the retirement age, it is open till mid October.