Almost three-quarters of retired judges at High Court level or above took on some form of legal work between 2010 and 2020, according to research published today. Calling for increased regulation in England and Wales, the authors say it is anomalous that only a small proportion of former judges hold practising certificates.
In an independent paper funded by an academic research grant, Dr Patrick O’Brien of Oxford Brookes University and Dr Ben Yong of Durham University conclude that a convention which had previously governed judicial retirement is now ineffective — if not completely dead.
That convention, say the authors, required former judges to be circumspect — especially about politics and their work on the bench. It also prohibited judges from returning to practice at the bar and even undertaking non-regulated activities, such as writing paid legal opinions.
According to O’Brien and Yong,
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or institutional regulators — the judiciary, the government, the Bar Standards Board and the Law Society — have all withdrawn from this aspect of legal and judicial practice.
The result is that judicial retirement is now completely unregulated.
I’m sure that O’Brien and Yong would regard their report as the start of an important debate rather than its conclusion. For this reason, I offer some of my own thoughts later in this piece, including my rejoinder to Professor Richard Moorhead, who responded to my preview of the report last week. I also discuss a previously unreported convention that I’m told is widely observed by retired senior judges and their chambers.
First, though, here is my summary of the two authors’ recommendations:
Guidance given to judges on appointment and retirement should make it clear that it is acceptable for former judges to do legal work.
However, former judges who wish to work as lawyers should first obtain a practising certificate from one of the legal regulators.
In granting certificates, the regulators should take into account the special circumstances of former judges.
Judges who served at High Court level and above should be subjected to stricter conditions than those who sat in the lower courts.
The closer that serving judges are to retirement, the more care they should take to avoid the appearance of bias.
The authors point out that the “vast majority” of the 16 retired judges they interviewed were against the idea of regulation. They found “a deep vein of scepticism, running through both serving and retired judges, about any form of regulation of judicial retirement”.
Among comments from their interviewees, there was some outright hostility:
Do I think there should be regulation? No, because I hate rules.
“More commonly,” said the authors, “judges and retired judges expressed the view that rules were unnecessary, that judges would not welcome them, or that judges already knew how to behave.”
That was borne out by the judges they quoted:
What, judges need to be told how to behave themselves properly? For goodness sake!
My experience is that just trying to give guidance to judges is quite a tricky operation. Sometimes they bristle at the idea that [anyone] should think they’re not responsible enough to behave properly anyway.
Comment
As I suggested last week, this research raises two important questions:
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