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The future of the magistracy – who should take control?

Penelope Gibbs
17 Feb 2019

This week three senior salaried judges and the Minister Lucy Fraser were quizzed by the Justice Committee about the magistracy.

The indicators of the health of the magistracy are not good – it is no more diverse than fifteen years ago and the numbers of magistrates has nearly halved. The four giving evidence to the Justice Select Committee felt all was under control, but I’m concerned that the separation of powers is kiboshing the urgent need to think strategically about the magistracy.

Fifteen years ago, policy on magistrates’ recruitment, expenses etc was made in the Ministry of Justice and there was a dedicated team there. This team spearheaded huge steps forward in making the magistracy more diverse. The recruitment team moved in 2007 into the Judicial Office and, since then, power and leadership has been split between the Ministry of Justice, the courts service (HMCTS), senior magistrates (represented by the Magistrates’ Association and the National Bench Chairs’ Forum) and the senior judiciary. The Ministry of Justice last addressed the problems of the magistracy in 2013 when Minister Damian Green launched a review. The review was never published and lack of leadership from the Ministry of Justice has led to drift.

This drift was evident in this week’s evidence to the Justice Committee. Robert Courts MP asked the Minister, Lucy Fraser, what progress had been made on an overarching strategy for the magistracy which the government committed to produce in February 2017. She responded: “We are working very closely with the magistracy. As I said at the outset, we have a very good relationship with them. They perform a vital function in justice and in society. Most cases in the criminal sphere go through the magistracy, and we, and HMCTS in particular, are working very closely on that strategy”. This didn’t actually answer the question, and she was also vague as to what resources the Ministry of Justice itself were devoting to developing the strategy. No wonder – my understanding is that no Ministry of Justice civil servants are working on this strategy and that all the work is being done by HMCTS and the Judiciary.

I’m a purist about policy development. I think an overarching strategy for the magistracy should be developed by departmental civil servants working to Policy Profession standards  using open policy making approaches, not by untransparent working groups managed by HMCTS  (an agency, not a policy-making department). If judges are to be independent they should input into, but not be at the heart of, policy-making.

One example of how the leadership of the magistracy has got confused is in relation to the new Leadership Magistrate positions. The leadership of the magistracy has long been shared between the Magistrates’ Association (a membership organisation for all magistrates) and the National Bench Chairs’ Forum (composed of Chairs of local benches elected to be on the forum), which were both independent of the paid judiciary. But the National Bench Chairs’ Forum was abolished in 2018 and replaced by eight Leadership Magistrates. The judges interviewed by the Justice Committee were a little vague as to why.

The judges implied that the idea arose from magistrates, but it definitely didn’t come from the rank and file. All magistrates were consulted about the new idea and didn’t seem particularly enthusiastic. In response to being asked “would you be happy for magistrates to be more accountable to the senior judiciary?”, only one third of magistrates agreed: “a number of respondents questioned whether the senior judiciary would want the magistracy to be accountable to them, that not all judges understand the role of magistrates sufficiently or respect magistrates as they should, and may not have the skills needed. Concern was expressed that the voice of the magistracy would be diminished and that magistrates could be marginalised”. Over half those surveyed said new Leadership Magistrates should be elected and only a fifth said they should be selected. Given this, it is pretty surprising that Leadership Magistrates ended up being selected by Senior Judges. Lady Justice Macur justified the selection of Leadership Magistrates on the basis that a selected magistrate has the right status: “the status of having the approval of the salaried judiciary in the new role that was being created”.

There is now no national forum with power over the magistracy which is chaired by magistrates, or in which magistrates are in the majority. So the age old independence of the magistracy has gone. This has happened as a result of incremental behind the scenes changes, rather than as part of an openly debated published strategy. I think the way forward is for the Ministry of Justice to take back control and complete the strategy review first promised by Damian Green in 2013.