Want to solve the crisis in courts? Allow magistrates to work past 70

An arbitrary age-cap is worsening the problems in our justice system

January 27, 2019
Lord Chancellor David Gauke. Photo: Dominic Lipinski/PA Archive/PA Images
Lord Chancellor David Gauke. Photo: Dominic Lipinski/PA Archive/PA Images

The UK justice system is facing a crisis. The problems in our prisons are well documented, while funding for legal aid has been dramatically reduced. Less attention has been paid to the falling number of magistrates, but the trend is alarming and has left many courts operating with just two on the bench rather than three.

This problem is worsened by the current policy that forces magistrates to retire at 70—even if they are ready, willing and able to continue.

Let’s not forget that most magistrates work unpaid, volunteering their services for the public good, often in retirement from paid work. They want to use their training in the interests of justice. However, over the past ten years the number of magistrates has halved to 15,000 and the majority are already over 60. This is causing a severe shortage in the justice system, which will worsen over time.

There have been widespread calls for the government to abandon this compulsory cut-off, which dates back to 1993 legislation. At its recent annual meeting the Magistrates’ Association decided to increase pressure on the government to introduce new legislation, allowing them to stay on past 70. I hope that it succeeds.

The most senior justices, who chair court hearings, are already allowed some leeway to work up to 75 if they are called upon to do so. Although judges are also normally supposed to retire at 70, many have been asked to work longer. However, ordinary magistrates are not permitted to do so.

This kind of arbitrary age discrimination has no place in the modern world. Mandatory retirement ages are a blunt tool to use in determining who can perform particular tasks, and should be replaced with an impartial assessment of capability. Compulsory retirement policies are particularly harmful for demographic reasons. The number of older people in the population is rising sharply, as the first babyboomers reach their 70s. Denying them the chance to continue working, especially in sedentary roles, makes little sense.

When you consider the potential drop in immigration of younger workers post-Brexit, there is an urgent need to update practices regarding employment of older people. In the wider business context, all employers should make more use of home-grown skills and talent wherever possible—which must include encouraging longer working lives. If someone is perfectly capable of working, the law should not force them to stop. 21st century realities demand change.

The recruitment problems in courts are widespread. The Lord Chief Justice recently warned of the “unprecedented crisis in recruitment threatening the administration of justice.” The government has given judges a 2 per cent pay rise. But there is another urgent policy change needed. It is an insult to the work ethic and lifelong experience of magistrates to force them to retire. Of course, if they are not fit to serve then there must be an appropriate appraisal system to assess their ability, but that applies in other areas of working life already.

It is not acceptable to discriminate against the over-70s, any more than it would be considered reasonable to force people out of a job due to their race, religion or gender. Arbitrary limits, which prevent us utilising all the skills and talents of our population, are damaging—both socially and economically. And in the case of magistrates, they are damaging the very fabric of our justice system too.

It is time for new thinking about age in the workplace. Pension ages are rising, which must mean people working into later life.The government must urgently recognise the need to retain the services of our dedicated judiciary, to bolster the justice system.