Retired judges who engage in legal work after their retirement, whether advocacy or litigation, should be regulated by the Bar Standard Board (BSB) or Solicitors Regulation Authority (SRA), academics have argued.
They said the UK had moved from “one of the strictest common law positions on legal work in retirement” to a situation where “there is no effective regulation at all”.
Dr Patrick O’Brien, senior lecturer at Oxford Brookes University, and Benjamin Yong, associate professor in public law and human rights at Durham University, said: “Whilst many of the legal services provided by retired judges are unregulated, in our view the provision of legal advice and legal opinions raise sufficient concerns about apparent bias and public perception that former judges who wish to engage in them should only do so if they hold a practising certificate and accept professional regulation.
“The use of legal advice provided by Lord Neuberger as part of a submission during the Post Office Horizon litigation is an example of the difficulties such advice can lead to.”
Lord Neuberger, former president of the Supreme Court, supported an ultimately unsuccessful effort in 2019 to have Mr Justice Fraser recuse himself from presiding over the group litigation that uncovered the Post Office scandal.
Dr O’Brien and Mr Yong said the judiciary now offered “only very general guidance” to retired judges, while the Ministry of Justice and the legal professional regulators “do not seek to apply even voluntary professional restrictions” on them.
They said that, until recently, UK judges were subject to “a retirement convention” that required them to be “circumspect, especially about politics and their work on the bench”, while prohibiting them from returning to practice at the bar, “which included non-regulated activities such as paid legal opinions”.
The convention was “now ineffective, if not completely dead”.
The academics went on: “Judges now return to some form of legal practice in large numbers. There is now scepticism and confusion about the convention to such a degree that the convention exercises limited influence on post-bench behaviour.
“At the same time, the relevant professional or institutional regulators – the judiciary, the government and the Bar Standards Board and Law Society – have all withdrawn from this aspect of legal and judicial practice. The result is that judicial retirement is now completely unregulated.
“Our view is that this is a retrograde development. It goes contrary to the direction of travel in other common law jurisdictions.”
Dr O’Brien and Mr Yong said that, during an 18-month project, they created a database of judges at High Court level or above who retired between 1950 and 2020, and carried out 21 interviews with judges, retired judges, barristers and officials for the policy report Work in Judicial Retirement.
The academics were refused permission by the Lord Chief Justice, Lord Burnett, and the Lady Chief Justice of Northern Ireland, Dame Siobhan Keegan, to interview serving judges, but they “would welcome an opportunity to engage with them in the future”.
The academics said it “quickly became clear” that retired judges were not “open to regulation”, with a “deep vein of scepticism” which sometimes amounted to “outright hostility”.
A “very significant proportion” of former judges of High Court level and above (three-quarters of those retiring in the decade 2010-2020) offered paid legal services of various kinds, the study found.
The UK jurisdictions, particularly England and Wales, had moved from “one of the strictest common law positions on legal work in retirement (albeit one that was rooted in informal convention and an honour code rather than in formal rules) to a situation in which there is no effective regulation at all”.
The academics recommended that both the Ministry of Justice ‘understanding’ signed by new judges upon appointment and The Judicial Conduct Guide should be revised to make it clear that it was acceptable for judges to return to legal practice, but they were expected to obtain a practising certificate from the BSB or the SRA if they did so.
We reported last week the comments of Professor Richard Moorhead, legal ethics specialist at Exeter University, that the Post Office’s use of two former senior judges in its defence of the sub-postmaster prosecutions indicated the need for guidance or regulation on what judges did in retirement.