Can and should retired judges advise on live cases?

I have written before about former judges advising clients after they retire from the bench. Now seems an appropriate time to ask if the convention that they do not has ended, and if so, who decided and how. The case I am about to discuss raises a question as to whether the abandoning of the convention may need more careful public consideration?

My reason for picking this up again is this story from Nick Wallis. To boil it down to the essentials: Lord Grabiner, in the course of a recusal hearing where he represented Post Office Ltd, had prayed in aid of his (failing) application a “judicial figure or barrister” having “looked at this”. That person, Nick’s story tells us, is Lord Neuberger (a former President of the Supreme Court, with a very plausible claim to be the, or certainly one of, the finest living English judges). Big guns, if I may say so, do not come bigger or more admired by lawyers than this.

The recusal application was rejected at first instance and leave to appeal was declined  by Lord Justice Coulson who said (in a judgment to which the words stinging take on Muhammed Ali proportions): “Such a comment, presumably made in terrorem, should not have been made at least without proper explanation of its relevance.” The rest of his criticisms of the application are wincingly awful.

We have no reason that I am aware of to think the judges knew who the Big Gun was. But Coulson’s reaction to Grabiner suggests, I think, he perceived an attempt to undermine the independence of the court. To my mind, if so, this might be an overreaction but Coulson LJ is clearly mightily unimpressed. Lord Grabiner’s praying in aid could be interpreted as him trying to evidence that the application had merit (senior figure told us we had a good case), or it could be him defending himself and his client against an inadequate application (He might be saying, don’t blame me,! I am only following instructions and even bigger guns than me have looked at it too. I am not on a frolic of my own).

One other thing I should say by way of context is this: the recusal application could have led to serious injustice. Had it succeeded, the Bates No 6 judgment would in all likelihood not have been given. That judgment is important in its own right, but also formed the basis of the CCRC’s referral of the Hamilton cases to the Court of Appeal. Those Appeals may not have gone forward or been successful or successful in such strong terms. If so, not only would many Sub-Post Masters not have had their convictions quashed, the quite extraordinary ‘affront to public justice’ by the Post Office would likely not have been exposed by the Court of Appeal, and Sir Wyn William’s Inquiry into the Post Office Scandal might have been a significantly more anodyne affair than it promises to be. It would also likely have proceeded without the benefit of statutory powers.

Lest readers think I am cranking up to say this is all Lord Neuberger’s fault, I am not, but it is a very important indicator of the context in which his advice was being sought. We do not know how much of this he was aware of, but he would or should have been aware of the Bates litigation itself if he was properly instructed.

Lord Neuberger has not confirmed whether he advised (although Post Office have), whether such advice was remunerated, and what he did know about how such advice would be used. It’s possible, for instance, that this was an informal, second opinion kind of chat with limited or informal instructions or an advice on a narrow point (such as, in what circumstances can one recuse a judge mid-trial). However it arose, any advice had the potential to influence the decision of POL and the course of the case itself. Giving it was a big deal. There could have been very significant consequences.

We do not of course know the substance of that advice. We might expect it to come to light in the Williams Inquiry. It is possible he advised against recusal (Grabiner’s words in the application itself might suggest not, but we really do not know). If he advised supportively of recusal, however cautiously, we can speculate on the likelihood that PO Board members and lawyers will shift some of the blame for the decision to recuse in part on to this advice. In that, I would expect them to fail, but it is another indication of the importance of advising, especially if one is a former Supreme Court judge. His views would have carried real and probably disproportionate weight. I say this without any shred of disrespect; quite the reverse.

I asked Lord Neuberger if he wished to comment on Nick’s story and the convention that judges do not give legal advice on cases (discussed below). Perhaps unsurprisingly, likely because he owes obligations of confidentiality to the Post Office, or some broader sense of propriety, he was not willing to talk about the specifics of the case. I do not criticise him for that; it is completely understandable.

To his credit, he did comment on the broader picture though. I understand he was aware when he became a High Court Judge in 1996, that he was expected not to go back to practising as a barrister when he retired. He was also aware of a number of former senior judges, who acted as arbitrators and mediators, and one judge who returned to the Bar. Of the former he understands some gave advice on legal issues including in connection with court proceedings here and overseas.

About his own practice, Neuberger says this, “When I retired from being a judge in 2017, as I was about to reach the mandatory retirement age, I was keen to carry on work. I did not apply to become a barrister again. But I thought it would be appropriate to take on work as an arbitrator and mediator, as well as giving occasional legal advice.  If there had previously been a convention that former judges would not give legal advice, I believe that it had fallen by the wayside by 2017.”

His explanation fits with what we know about the judicial code. The convention appeared to be alive and kicking (a bit at least) in 2013 (see here para 9.1 of the judicial code at the time, where legal advice seems to be prohibited (perhaps unenforceably so). By 2018 that had been slimmed down to this:

A retired judge may still be regarded by the general public as a representative of the judiciary. Retired judges should exercise caution and are encouraged therefore to refer to this guidance so as to avoid any activity that may tarnish the reputation of the judiciary.

References to not giving advice or returning to practice had gone.

Traditionally judges have not been able to return to practice or give legal advice post-retirement at least for remuneration. In 2005, permitting a return to practice was being proposed by the then Lord Chancellor for judges below High Court level. This prompted a rather strong response from a Judicial Council Working Party (including two Court of Appeal judges in its ranks, Pill and Sage LJJ). This said a number of things at the time including:

  1. There was no binding prohibition on a return to practice. There was though, they thought (in 2005/6), an unwritten convention by which “many perhaps most full-time judges regard themselves as bound”.
  2. They acknowledged one case where a HC judge had returned to practice anyway, which had not been stopped. They also indicated that such cases had been justified, perhaps in part, on the basis that the judge in question is not doing work falling within their statutory monopolies. This would not, they said, “be widely understood by the public who’s confidence in the judiciary is at stake”.
  3. High Court judges took office (at the time) on the unenforceable understanding they would not return to provide services on whatever basis as an advocate in any English and Welsh court or tribunal. Nor would they provide legal advice to any person for remuneration.
  4. Changes to rules on judicial pension may have led to that understanding disappearing for some judges (temporarily they hoped).

The Working Party, which claimed to have consulted widely amongst its constituencies, talked in general about attitudes to judges returning to practice (which I take to mean, in particular, the giving of legal advice for remuneration) (bold is my emphasis):

10. Subject to those preliminary observations the major objection of principle to removing the current prohibition is that if return to practice became the norm or even something which was overtly permitted or encouraged it would inevitably diminish the standing of the judiciary and seriously weaken its independence. We found overwhelming support for this view amongst the judiciary below High Court level and amongst the judges of the Court of Appeal. It is the view of a clear majority of Queen’s Bench Judges and amongst the judges of the Family Division who responded there was only one dissentient. Some judges of the Chancery Division also take a different view. They consider that judges of all ranks should be allowed to return to practice if they so wish and that no specific safeguards are necessary.…

It may be the case that ex-judges, soon to be ex-judges or possibly to be ex-judges can be relied upon not to abuse their position or to allow considerations related to their future or possible future employment to compromise their independence of the parties and their legal advisors with whose cases they deal. But if the public in general or litigants in particular know that judges may be returning to the legal marketplace, the perception of possible bias will be a constant threat.

….In the commercial market too much can turn on the client’s perception of increasing his chances by the use of a respectable, reputable and well-connected representation. The track record of being a judge is commercially saleable, but should not be on the market. It has similarities with the saleability of being a former minister or senior civil servant, the exploitation of which has not enhanced the standing of the relevant arms of public service.

13. We do not consider that this objection of principle can be overcome by imposing safeguards or conditions. The nature of the objection is such that it remains the same whenever return to practice becomes even something which, whilst not the norm, is nonetheless overtly permitted or encouraged. That is because return to practice means a return to the legal market, where work is done for reward for a cause and for a litigant. In that regard we would draw a sharp distinction between a return to arbitrate, to mediate, or to give expert evidence in a foreign court as to the law of England and Wales. Although all those tasks are routinely carried out by those in private legal practice, the tasks involved all require the exercise of independence, objectivity and authority, these being the hallmarks of a judge. It seems to us that the conduct of those tasks for reward by a former judge is quite different in character from a return to private legal practice.

I do not have a settled view on whether judges should be allowed to return to practice, or when, and I do not want to express a view on this case without knowing more about what Lord Neuberger understood to be the position when he is said to have advised. I do not regard as convincing an argument that not doing reserved activity work, or providing legal advice other than as a barrister or solicitor means retired judges providing legal advice is not problematic. Whatever the regulatory status they are almost always likely to be regarded as giving advice, in part, as a former judge. The public perception here is important; and we have had a flavour of how the courts seized of the Bates case saw it.

One might take the view judges should be able to advise post-retirement come what may or that it should be prohibited or that advising in certain cases is problematic. This case is pretty plainly one where the sensitivities around advising were, for the reasons above, pretty acute: advising, on a case, live before the courts, with the potential to profoundly impact the outcome of that case (and perhaps the reputation of a leading HC judge being attacked for apparent bias) and all that hung on it. A more acute test of whether judges should always be able to advise could be devised but this would be close to it.

What I think is also certainly worthy of note is that, unless I am mistaken, the convention has been abandoned quietly rather than publicly and without reasoned justification. I can recall no public debate or discussion about a formal change. I may have missed it. . Members of the 2005/6 working party would presumably have regarded this as a profound change constitutionally (see page 5 of their report) and reputationally. I would not go so far, but I do think the change is important enough to merit proper attention, with good reasons being given for current policy. Not least, some thought might go into what principles should govern when advice on cases can be given. It is an area that falls into something of a regulatory black hole too, advising (but not ‘in practice’) offering services from a Barrister’s Chambers as an arbitrator and legal expert falls outside of the normal ambit of legal service regulation and judicial conduct: should it?

Whatever the answer to that question, the reasons for allowing arbitration work are well known and rehearsed; the reasons for ex-judges providing legal advice are not, and the existence of any sensible limits on the practice are not discussed at all anywhere I can find. Perhaps that should change. Perhaps it needs a proper look.

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[Footnote on this post here for those particularly interested]

2 thoughts on “Can and should retired judges advise on live cases?

  1. Anyone should be free to advise on anything as long as they are truthful about their own qualifications and experience. Too many people telling other people what to do ends up eventually as a dictatorship so let the retired judges say what they like to whoever they like !

  2. Richard I think you are perhaps over-generous. I understand your analysis and endorse your conclusion, but I suspect that you may be being too gentle. Ordinarily, if you tell a court that advice has been taken from snooks a barrister or lawyer of greater or lesser known competence, nobody gives two hoots. If you tell a puisne judge that you’re taken a particular line because you’ve consulted Lord Snooks, a retired JSC, there is a different flavour.
    Test it this way, had Grabiner said to Fraser, not only has the decision to apply to invite you to recuse yourself for apparent bias been taken at board level in the PO, but we have consulted Lord Snooks, a retired Supreme Court judge, it would have been sensational. It could not be done. (Or had it been, it would have likely hit the headlines.)

    The defensive character of what was done was also interesting. Ordinarily, if you make an application to the court without there being any basis for it (and Coulson LJ was coruscating in his criticisms) there are consequences. There was a flavour of ‘don’t blame us’ that comes through in Fraser’s judgment – with a defensive shield put-up.

    If, as appears, it was possible to murmur about what had been done but impossible to disclose the full facts, that may help in analysing other questions. I guess there are separate questions – the appropriateness of what was done, at all, and the more obvious and easily answered question about the propriety of referring to what had been done to the judge, the purpose of which was unattractive – as Coulson notes.

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