Posts Tagged ‘judiciary’
Reviewing the mandatory retirement age for judges
The arguments in favour of having a mandatory retirement age (MRA) for the judiciary and other similar office holders are that it:
- promotes and preserves judicial independence by avoiding individual decisions in each case (albeit with limited provision for extension which enables retired judges to continue to sit post-retirement);
- preserves judicial dignity by avoiding the need for individual health and capacity assessments;
- maintains public confidence in the capacity and health of the judiciary;
- supports workforce planning and allows for greater career progression/ diversity;
- shares opportunity between the generations by balancing the need for experienced judges to continue in office for a reasonable time against career progression opportunities for newer appointees (and thereby also promoting diversity in the judiciary).
There have, however, been practical problems associated with the policy. In particular, the recruitment picture for many judicial offices in England and Wales has changed significantly in recent years. There have been more frequent and higher volume recruitment for most types of judges while a greater proportion of recruitment exercises have resulted in shortfalls. Not all available posts have been filled. This has affected appointments all levels in the judiciary including the lay magistracy.
Additionally, life expectancy in the UK has improved since the mandatory retirement age for most judges was legislated to be 70 in 1993. Many individuals now tend to live and work for longer.
In recent years, the MRA has become a subject for debate. In November 2017 the House of Commons Constitution Committee’s Follow-up Report on Judicial Appointments gave further consideration to changing the retirement age and the Committee asked the Lord Chancellor and senior members of the judiciary to reflect on whether the current MRA of 70 continued to be appropriate given the demands on judicial resource.
In the 2018 Major Review of the Judicial Salary Structure, the Senior Salaries Review Body (SSRB) commented that some judges would stay in post for longer were the MRA raised. They also suggested that the current MRA may dissuade some people from joining the judiciary as they felt that they would be unable to serve for a sufficiently long time once appointed.
In 2019 the Justice Select Committee’s report on The Role of the Magistracy, acknowledged the proposals of the Magistrates Association to allow magistrates to sit beyond the MRA if demand could not be met by recruitment alone. However, it was noted that any such provision would require legislation.
Spurred on by these comments, the Government has now published a Consultation Paper on whether the MRA should be amended. 2 Options are identified: a rise to the age of 72; or a rise to the age of 75. In addition, the consultation also asks whether magistrates should be able to be asked to continue sitting even after retirement.
The Lord Chancellor notes that “The retirement age for most judges was last legislated for 27 years ago, and the time is now right to consider whether the age of 70 continues to achieve its objective of balancing the requirement for sufficient judicial expertise to meet the demands on our courts and tribunals whilst safeguarding improvements in judicial diversity and protecting the independence of and confidence in our judiciary.”
The Consultation opened in July 2020 and runs until mid-October 2020.
Documents on the review are at https://consult.justice.gov.uk/digital-communications/judicial-mandatory-retirement-age/
Proposed Constitution, Democracy and Rights Commission
One proposal that caught the eye in the Conservative Party’s manifesto for the December 2019 general election was that, following the UK’s withdrawal from the EU, it would be necessary to look at “broader aspects” of the UK’s constitution. The idea was that a constitution, democracy, and rights commission should be established to examine the following issues:
- the relationship between the government, parliament, and the courts;
- the functioning of the royal prerogative;
- the role of the House of Lords; and
- access to justice for ordinary people.
Other areas would include examining judicial review and amending the Human Rights Act 1998 to balance the rights of individuals, national security, and effective government.
The Government has said that it wants to ensure a range of expertise is represented on the commission. It also wants the commission to evidence from third parties and civic society to inform any recommendations. However, there are currently limited details available on the remit, form, and composition of the commission.
Several commentators and academics have welcomed the general principle of reviewing the UK’s constitutional arrangements. However, some have expressed concern about the context of the commission, particularly coming after the Supreme Court found against the Government on constitutional issues.
Those interested in starting to think about the issues which the Commission, once established, might consider will find the Research Briefing paper, written by Charley Coleman from the House of Lords Library and published in late March 2020, to be an excellent introduction.
The briefing can be found at https://lordslibrary.parliament.uk/research-briefings/lln-2020-0089/
Covid 19 and the English Legal System (8): guidance on new working practices
As readers of this blog will already be aware, I have been considering the impact of the Covid 19 pandemic on the English Legal System. There will, I am sure, be many more blog entries to come.
For those not involved on a daily basis in the work of courts and tribunals, it can be hard to get an overview of what is happening.
An invaluable source of information is available on the Judiciary website which brings together the vast range of advice and guidance on how courts and tribunals should be working in the current environment. Some of this advice is general – applying across the board; other advice relates to specific jurisdictions.
Access to the guidance, which is updated when necessary, is available at https://www.judiciary.uk/coronavirus-covid-19-advice-and-guidance/
Diversity in the Judiciary: slow progress
The judicial diversity statistics were published on 12 July 2018. They are based in information as at 1 April 2018. The statistics show there has been further, albeit slow, progress in the appointment of women in judicial posts; there has been some progress, though less than for women, in the appointment of those from Black and Ethnic Minorities groups as judges. that:
- 29% of court judges and 46% of tribunal judges were female. 50% of non-legal members of tribunals were female.
- Around half of court judges aged under 50 are female. Females outnumber males among tribunal judges at all age groups under 60.
- 24% of Judges in the Court of Appeal and in the High Court were female.
- 41% of Upper Tribunal Judges were female.
- Since 2014 there has been a 5-percentage point increase in female representation among court judges.
- 8% of judges identified as BAME (7% of court and 11% of tribunal judges); non-legal tribunal members 17%
- BAME representation among court judges aged 40 or over (98% of judges) was only slightly below that of the working age general population in each age band, while BAME representation among tribunal judges was higher than that of the working age general population at all age bands from 40 and over. Non-legal members have considerably higher BAME representation than that of the working age general population at all age groups.
- A third of court judges and two thirds of tribunal judges are from non-barrister backgrounds.
- More than half of magistrates were female (55%)
- 12% of magistrates declared themselves as BAME.
- There were very few magistrates aged under 40 (4%) compared with 55% of magistrates who were aged over 60.
On 27 June 2018 (outside the period used for the report) the appointment of three Lady Justices and four Lord Justices of Appeal were announced. On 9 July 2018 the appointment of five High Court Judges were announced, three of which were male and two of which were female. These will be reflected in the statistics for 2019.
The full report is available at https://www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/diversity/judicial-diversity-statistics-2018/
There are two major challenges relating to judicial appointments which have been aired recently.
First, there are concerns at the significant reduction in the numbers of Lay Justices who sit in Magistrates’ Court.
Second, there are concerns about unfilled appointments to the High Court, attributed to recent reductions in the pay and benefits associated with these appointments. This is an issue currently under review by the Senior Salaries Review Body. The outcome of the consultation is currently awaited. It was the subject of a recent speech given by the Lord Chief Justice.
See https://www.gov.uk/government/consultations/major-review-of-the-judicial-salary-structure
The Lord Chief Justice’s speech is at https://www.judiciary.uk/wp-content/uploads/2018/07/20180704-lcj-speech-mansion-house-speech.pdf
Transforming the Justice system – case studies
It is quite hard for those outside the justice system to know exactly what is going on with the overall transformation programme. But a source of really interesting material is Tribunals Journal published 3 times a year by the Judicial College. (I declare an interest – I have just been appointed to its editorial Board.)
The latest edition, published in December 2017, contains a number of interesting case studies on developments which are relevant to the transformation programme. The following items are particularly worth noting.
Lorna Findlay, who is an Employment Judge, was an early volunteer to receive training to entitle her to sit as a judge in the county court. ) One of the transformation programme’s central goals is the creation of ‘one judiciary’ whereby judges can be deployed to different areas of work.. The author describes the basic training she received and the shadowing she undertook before she started sitting as a District Judge on civil matters. Her overall impression was that the essential features of the judicial role were the same whether in the ET or in the county court.
She felt that her experience in the ET gave her more confidence in handling litigants in person, who appear more often in the tribunal, than some of her civil judicial colleagues. At the same time, she thought that procedural rules in the county court, which enable judges to give only brief summaries of key facts and grounds for decision, should be brought into the Employment Tribunal rules – ET decisions are currently notoriously and unnecessarily long in her view.
Sian Davies, another ET judge based in Wales, described a pioneering initiative to assist litigants in person. The aim was to find a way for the ET itself to be able to signpost litigants in person to sources of assistance that might help them frame and argue their cases. The obvious challenge is that the ET must not appear to be taking sides. But with the reduction in the availability of legal aid, the tribunal argued that new ways of trying to assist should be developed. One outcome has been the creation of an ET Litigants in Person Scheme, in which volunteers – acting pro bono – offer advice and assistance to parties before the tribunal. These are based in the London Central ET and Cardiff.
Meleri Tudur writes about the use of registrars and now tribunal case workers to undertake some of the more routine paperwork that historically had been undertaken by the judiciary. In some cases this had led to a significant reduction in the amount of time taken by judges on what is known as ‘box work’.
To me, these are all examples of initiatives designed to make the existing courts and tribunals service more responsive to the needs of users. Tribunals Journal should be essential reading, not just for the tribunal judiciary, but for those involved in the reform of the justice system.
The Winter 2017 number of Tribunals Journal can be found at https://www.judiciary.gov.uk/wp-content/uploads/2013/07/tribunals-journal-winter-2017.pdf
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 