As court staff prepare for strike action over the troubled Common Platform IT system, we learn through a survey of magistrates conducted by their lobby group the Magistrates Association that they are not happy either. It seems they don't like things being 'done to them' rather than being part of the process! Sounds a bit familiar doesn't it? But that's the MoJ civil service way!
It's worth reminding newer colleagues that there was a time when magistrates effectively ran the Probation Service and files had to be presented for inspection and perusal by members of the local bench on a regular basis. Ok that was before my time, but my career began when I was interviewed and appointed to the Petty Sessional District by the local bench in 1986 and very regular consultation meetings continued to be held with magistrates until of course the politicians got involved. But that's another story.
Introduction
Magistrates are volunteers, guided by the principle of service to their local communities. This has been an underpinning feature of the magistracy for its entire 660-year history.
The system relies solely on the commitment of those volunteers to make it work. No magistrate should, in theory, be out-of-pocket for volunteering. Magistrates can claim for expenses from His Majesty’s Courts & Tribunal Service (HMCTS), to compensate them for financial costs incurred.
The magistracy has undergone much change in recent years. Half of magistrates’ courts have closed since 2010, and the number of magistrates has halved too. Increased centralisation of administration has reduced the sense of localness, with magistrates having to travel longer distances, and the sense that the much-prized principle of local justice has been weakened. Poorly executed introductions of IT procedures and other processes have also served to significantly damage morale. Many members tell us that this has changed their bond with the role, and how valued they feel as volunteers. Against this backdrop it is perhaps no wonder that an expenses regime that leaves volunteer magistrates having to dip into their own pockets to make up the difference has added to the stress and discontent that magistrates feel.
The Magistrates’ Association wanted to better understand the extent and nature of the costs associated with sitting as a magistrate. This report presents the results of a landmark survey of 1,362 sitting magistrate members and sets out 20 recommendations that we believe will make a real difference for magistrates.
Executive summary
Executive summary
Our survey of sitting magistrates painted a deeply concerning picture of an expenses regime that does not reflect the true costs incurred, and of a workload that is not properly recognised.
Respondents told us that they faced financial loss through fulfilling their duties as magistrates. It is a cornerstone of our judicial system that magistrates are not paid, but it is fundamentally unfair that those who volunteer for public service should find themselves out-of-pocket. It is also wrong that people on low incomes face exclusion from serving as magistrates because of the financial cost.
Our survey highlighted the inflexibility of the current expenses regime. The system does not recognise various types of activities undertaken for magisterial duties—such as remote sittings from home or preparation time before cases. Since the Covid-19 pandemic, sittings from home—while at first a temporary measure—have expanded and become a permanent element of the duties for many magistrates. Yet, the current expenses policy ignores this. The costs of essential computer equipment, as well as other extra costs incurred through sittings from home, should be covered by the expenses system. We recommend a digital hardship fund to assist magistrates on limited means to purchase and maintain the equipment required for at-home sittings. We also recommend a small flat-rate allowance for at-home sittings to cover other related costs.
The survey found that magistrates spend considerable time on duties as part of their magistracy work over and above court sittings. These additional roles, such bench chairs and training or advisory committee members, are vital to the effective running of the magistracy. However, the time that magistrates put into them is not recognised nor claimable on a par with court sittings through the expenses system. We recommend that this changes as soon as possible, not least to bolster the morale and goodwill of magistrates. We also recommend that there should be greater transparency about the actual time commitment required during the recruitment process for new magistrates.
The justice system relies heavily on the goodwill of volunteers. More than 90 per cent of criminal cases are dealt with by volunteer magistrates; without their work, the justice system would seize up. This was highlighted during the Covid-19 pandemic when magistrates kept courts running through virtually the whole period, and quickly tackled the pandemic-related backlogs as soon as it was possible, including with nightingale courts and weekend sittings.
Yet, our survey showed that magistrates feel neither the Ministry of Justice (MOJ) nor His Majesty’s Courts & Tribunals Service (HMCTS) understand their needs and motivations as volunteers. Instead, they feel that consultation on changes is usually inadequate, meaning that when change is introduced it is often poorly handled and makes their roles harder. Respondents said that change is too often done to them rather than with them. So, we recommend that the MOJ and HMCTS change their whole approach to working with the large volunteer force of the magistracy. We call for a Magistrates’ Volunteering Compact, drawn up between government departments and agencies and magistrates’ representatives, based on greater respect and understanding of the role of magistrates as volunteers in the context of participatory democracy. The compact should set out clear commitments and expectations including meaningful consultation on major changes, expected time commitments, and a statement that magistrates should not find themselves out-of-pocket.
This report highlights how external events can have a substantial impact on magistrates. The rise in fuel prices, for example, has come on top of a reduction in the mileage allowance for many magistrates that came into effect last year and hit many hard. One of our core recommendations is for the MOJ to establish a standing working group to explore key issues relating to the costs of volunteering, which would include a regular evaluation of the expenses system to make sure that it always stays relevant.
Finally, our report makes the case for how all this impacts on the ability to attract and sustain a diverse magistracy. Our survey showed that the inequities of the current expenses system have a disproportionate impact on younger magistrates, those from lower socio-economic backgrounds, Black, Asian and minority ethnic magistrates, and those who are self-employed. This presents a significant barrier to recruiting magistrates from these groups—negatively impacting the diversity of the magistracy.
The magistracy has been described as a jewel in the nation’s democratic crown. It is one of our oldest institutions—involving thousands of ordinary people from all walks of life, giving service to their communities, for no financial reward, in the cause of justice. It has proved its resilience repeatedly, most recently in the way it kept justice going during the Covid-19 pandemic. But, at the same time, it is fragile. It is powered by goodwill, and that goodwill needs to be nurtured, not taken for granted. Our report sets out 20 recommendations for how that can be done.
This research aimed to evidence the costs involved in being a magistrate, based on a major survey conducted in March 2022 of 1,362 sitting magistrates. Our survey found that magistrates, in large numbers, reported having to make up the difference between the amounts recoverable through the expenses regime and actual costs. Magistrates are consistently out-of-pocket.
The arbitrary amounts recovered do not reflect actual losses. This is currently a feature, not a bug, of the expenses regime, and causes widespread discontent. This leads us to conclude that the expenses regime is not fit for purpose. Our central recommendation is that the Ministry of Justice (MOJ) establishes a standing working group to consider a magistrates’ expenses that meets regularly to monitor and act on this issue to ensure it is not deprioritised. This working group would discuss updates in policy and legislation with representatives from the Magistrates’ Association and other key stakeholders and would ensure the expenses regime was as reactive as possible to external changes that affect its coverage.
We also recommend a three-year postimplementation review of the 2019 changes to magistrates’ expenses is conducted. Our survey found that the mileage decrease from this review had an overwhelmingly negative effect that left magistrates measurably out-of-pocket and significantly dented their morale. On this topic alone, the Magistrates’ Association received over 300 emails, many of which represented benches and wider groups.
Further, we found that the expenses regime is characterised by a level of inflexibility that created administrative burdens that could at times be insurmountable for our members, who then chose not to claim at all. While recognising the need to properly handle public money by checking claims carefully, we question whether the sheer weight of evidence required to support a claim for financial loss is always necessary. We found similar hurdles affecting claimants for childcare. Our recommendations offer simple ways to lessen the administrable burdens for ordinary magistrates.
Separately, our survey found that magistrates’ workload was not fully recognised. Significant amounts of time spent in roles essential to the magistracy, such as sitting on an advisory committee or being a bench chair, remain completely unrecognised. Furthermore, family magistrates spend a substantial amount of time reading large bundles in preparation for a court sitting; this also is not properly recognised.
The impact of unrecognised costs is most palpably felt, however, in the context of remote hearings. These hearings, whose use exploded at the start of the Covid-19 pandemic, continue not to attract any form of ability to claim back expenses. This is despite our survey’s evidence of significant expenses, most notably in the purchase of own devices and in the use of own utilities. Available support to magistrates, such as for IT, was also found to be wanting. Our report questions why a digital hardship allowance cannot be administered for those unable to afford the cost of their own devices, why greater IT support cannot be provided for those with own devices, and why the existing subsistence regime cannot be extended to cover other costs of sitting as home?
New legislation, which extends the use of remote sittings and places them on a permanent footing, means that remote sittings—currently mostly unrecognised by the regime—will be the norm for many magistrates. Our survey showed that time and money were particularly important considerations for young and Black, Asian and minority ethnic magistrates, reflecting a nuanced and disproportionate impact on those from lower socioeconomic backgrounds. The context of rising costs of living and fuel prices provides an opportune moment for His Majesty’s Courts & Tribunals Service (HMCTS) and the MOJ to take a fresh look, once again, at the coverage of the entire expenses regime. This, coupled with an ongoing recruitment campaign that will bring the largest and most diverse influx of new magistrates the magistracy has ever seen, means they need, now more than ever, to be more agile in responding to these factors.
The starkest findings came from those costs that were the hardest to measure but had the most significant impact: the costs to magistrates’ morale. Magistrate volunteers, like all volunteers, want to feel that they’re giving something back to their organisations and want to feel supported and consulted on changes. However, respondents to our survey often felt that changes to the expenses regime were made unilaterally, with minimal consultation with them directly.
There is now an urgent need to reassess the relationship that senior leaders in the justice system have with volunteer magistrates, and to reaffirm their commitment to them through a volunteer compact. This should expressly affirm a commitment both to the magistracy and to the volunteers whose dedication and hard work is unparalleled.
Our evidence is clear. Our recommendations provide simple ways to implement changes that will benefit all magistrates. The Magistrates’ Association is ready to support policymakers to ensure that there are no costs to volunteer as a magistrate, and that the expenses regime that supports them to undertake this essential role becomes an effective and dynamic ongoing process.
It is difficult to understate the importance of working with a large volunteer force to ensure that morale, expectations and responsibilities are met. To ignore the issues raised in this report is a high-risk strategy that could undermine the magistracy. By contrast, we believe that our recommendations will help to restore the goodwill and morale on which the magistracy depends.
Based on our survey’s findings, the Magistrates’ Association recommends:
1. The existing three tiers of subsistence should be replaced with two: absences of 2-8 and 8-12 hours. This would ensure that magistrates whose full day sittings are shortened at late notice— and due to circumstances out of their control—are also able to claim. It would, in addition, be simpler to administer.
2. The subsistence rates should be index-linked to account for inflation.
3. Hotels booked through the Ministry of Justice’s (MOJ) travel agent should be covered in all cases. The cost of an evening meal, not exceeding a reasonable and index-linked upper limit, should also be claimable.
4. A detailed post-implementation review of the expenses schedule should take place as soon as possible to address the impact of these internal and external pressures.
5. The MOJ should set up a standing working group on magistrates’ expenses. This should be structured to:
1. receive regular input from magistrates and relevant organisations
2. track updates in employment law that may necessitate change in guidance or policy regularly review the rates of expenses to ensure magistrates are not out-of-pocket.
6. His Majesty’s Courts & Tribunals Service (HMCTS) should fast-track any planned improvements to the financial loss allowance claims process, review the adequacy of all magistrates’ claims processes, and store the annual declaration forms electronically so that it does not have to be re-completed every year.
7. The courts minister should take steps to remove the annual declaration requirement from the secondary legislation without delay.
8. The MOJ must look specifically at the barriers faced by magistrates with childcare responsibilities. Claims processes, and their potential to create difficulty for certain groups of magistrates, must be a key priority for the proposed working group on expenses.
9. HMCTS should institute a flat rate allowance—slightly lower than the current subsistence allowance—for magistrates who conduct at-home sittings.
10. HMCTS should establish a digital hardship fund to assist magistrates on limited means to purchase or upgrade the equipment required for at-home sittings where they do not have such equipment already. This could be administered by bench chairs.
11. HMCTS should write to all bench chairs to clarify the standards of court dress expected under the current regime.
12. Subject to the eligibility requirements being met, and when significant pre-reading is required, this time should be treated as a sitting. Any financial loss should be eligible to be claimed under the expenses regime.
13. The proposed standing working group needs to think creatively about how best to recognise the extra time contribution of magistrates who undertake additional judicial roles.
14. To build magistrates’ confidence in using their own devices, regular short-burst training sessions on the use of different IT systems should be delivered.
15. This type of regular short-burst training should also apply to IT security and handling sensitive data, and magistrates should be asked to specifically confirm that they understand security responsibilities in order to protect themselves.
16. To safeguard morale and recognise the hard work of magistrates, HMCTS and MOJ should work with magistrates’ representatives to establish a Magistrates’ Volunteering Compact. This would be an overarching document, based on greater respect and understanding of the role of magistrates as volunteers in the context of participatory democracy.
17. The compact should set out reasonable expectations of magistrates—such as the real required time commitment, and expectations in the use of their own devices—as well as what magistrates can expect from HMCTS and the MOJ. This should include a commitment to meaningful consultation and involvement of magistrates in decision-making that affects them, and a commitment to ensure that the expenses regime stays relevant and up to date, so that magistrates are not out-of-pocket.
18. The standing working group on magistrates’ expenses that we propose in recommendation five should include a specific consultative element to ensure magistrates’ voices are heard.
19. The MOJ should ensure that the true time commitment required to be a magistrate is made clear. This transparency would be fairer to applicants and would increase the sense of recognition for magistrates’ contributions.
20. We recognise that the Applicant Tracking System has been recently initiated to collect diversity data of new recruits. In 12 months, when there is enough data, it should be analysed on an intersectional basis.
The rain it raineth every day
ReplyDeleteUpon the just and unjust fella
But mainly on the just, because
The Unjust has the Just's umbrella