President of Nowhere? Some points on Lord Neuberger being drawn into the PO Scandal

Well, how very rude I can hear the great and the good of the legal profession say. You can’t diss David Neuberger the former President of the Supreme Court KC. He’s ace. So let me begin in another way, as this is partly a story of how the network, any network, the establishment, the profession, the academy, probably works. Let me begin with Lenny.

The great and the good of the legal profession like to diss, behind their hands usually, ‘Lenny’ aka Lord Hoffmann. Too clever by half is the gist of the view and, perhaps relatedly, he is said to have tarnished his reputation over conflicts of interest when he sat in the House of Lords on the Pinochet case. I suspect he has been a little bit rude to a few too many folks, and behind those hands, he pays for it; but I am speculating on that.

Now for a rather silly reason, I have a slightly different inclination. Hoffmann chaired a talk I gave to the Bar. He was only moderately polite or interested, if that, but he did this thing that I rather loved. He pronounced my name right. He pronounced it as my parents would, even though he’s South African and my parents were Geordies. Why aye. It was a tiny, random, meaningless point of connection. And yet, helplessly, as a result I am slightly less inclined to think less of him (he did mess up in Pinochet but everyone is human… etc etc).  The point I am clumsily making is that social networks create connections and shape our judgements in ways that are not entirely appropriate or sensible.

Now Lord Neuberger has, deservedly I think, a rather different reputation to Lord H. Clever, but open and intellectually generous; one of the professions’ most admired judges and, although others are better placed than me to say this, probably one of our finest supreme court judges of recent years. I can speak to his decency and intellect and openness having met him and seen him in action with lawyers and students.

Now I mention this for two reasons. One is it might explain why, so far, the legal press has not covered this at all, save for the estimable Neil Rose on his news site, legalfutures. There might be any number of reasons for this but it strikes me as odd. Not even the excellent Joshua Rosenberg has covered it. He tends to like stories on judges and has even today written a story about Lord Neuberger’s former legal secretary (who as it happens is an excellent law teacher and academic writer too) getting a plum job with the King.

To what this silence, so far speaks, I do not know; but it is not beyond the bounds of possibility that a protective shield for David Neuberger, borne of experience of and admiration for him has quietened their keyboards for now. And yet, I think that admiration should not temper the newsworthiness of the situation for them or, more importantly, the importance of the situation to understanding something about professional, or in this case, judicial ethics.  No one should turn away at such difficult moments, even if that is an understandable instinct.

For those of you who do not know the story: Lord N advised on a highly suspect tactical manoeuvre in the PO litigation (recusing a HC judge midway through a massive trial for bias, an application rejected by a C.A. judge in the most excorciating terms).

If it had succeeded PO would likely have won that litigation and kept a lid on the most substantial miscarriage of justice in recent years which has ruined hundreds, probably thousands, of lives. The nature of his advice, but more particularly how his status was used by those instructing him, and the nature of his instructions are firmly in the Inquiry’s sites.  You can read more about it here.

Let me put my cards on the table and say I am not sure, certainly yet, that there is anything wrong with the substance of Neuberger’s advice in the Post office case, partly because we do not know enough about it and partly because I can intuit how it was written. We know a bit more about Lord Grabiner’s associated advice and that looks a bit more questionable (although even there we do not know a great deal and should reserve judgement). But what I do believe the episode shows is two things: a regulatory black hole and the significant dangers in allowing senior judges to return to practice. That does not necessarily mean they should not but I do think it needs some proper and open thought.

The significant danger point first. Judges have operated a self-denying ordinance in relation to the senior judiciary going back into practice which has begun to break down. I wrote about some of the arguments for not allowing judges back into practice. You can go and read the piece if you are interested. The thrust of the arguments is that allowing senior judges back into practice will undermine the independence and reputation of the judiciary. To my mind there are three main arguments: one is that returning judges have confidential information about how the superior courts work which is unfair (I imagine this could be managed, but don’t know); second, that their desire to be marketable when they leave practice may incline them to be more business-friendly in their judgments (I doubt this would make much difference, for reasons I won’t bore you with, although I think the perception bias might a bit of a reputational risk); third, that wheeling out senior judges as advisers might be an attempt to seek an unfair advantage. Now I used to be somewhat sceptical of the last argument but PO shows how this kind of influence might be applied at the client level and at the courts. Lords Grabiner and Neuberger were deployed to persuade the Board and then try to persuade the court that a massive PO civil trial should be halted for bias. Your last chance, so to speak, they advised, is to blow the bloody doors off. Plainly the High Court and Coulson LJ thought this was an attempt to put them in terrorem (to pressure them in essence).  So it backfired. But if the PO had succeeded the serious miscarriages of justice now exposed would probably have been kept under wraps. It’s a colossal scandal.

So it seems to me the case for restricting judicial activity in practice after they leave needs considering with renewed vigour. What seems to have happened is several judges, Lord N is not the only or first one,  have decided to ignore the convention that used to prevent senior judges returning to practice. This has led to a really important problem being ignored (there were earlier warning signs). This is no way to run a justice system: policy being formed by neglect. The Lord Chief or the President of the Supreme Court should take the policy issue in hand and ensure there is proper scrutiny, thought, and practise.

The second problem is the regulatory black hole. Lord N has not returned to practice as a barrister. His chambers webpage might be thought confusing by some (the page labels him a barrister when it should not; the summary describes him as an arbitrator primarily and a “legal expert”). Interestingly, PO sought to restrain the release of Neuberger’s advice to them under an FOI on the basis it was privileged. That would have been right if he was a barrister but he was not – so whether privilege really applied is moot (entertainingly the leading case is R (on the application of Prudential plc and another) v Special Commissioner of Income Tax and another [2013] UKSC 1, which Lord N gives the lead judgment in).

Were the PO confused about Neuberger’s status, misled, or just chancing their arm on privilege? Who knows. But it is an interesting sign of a regulatory problem associated with his uncertain status.

The second dimension of this regulatory hole is, what if Lord N’s behaviour was professionally questionable? I emphasise again, I am not saying it is, but if it were the questions might be of two types. Type one issues are questions of judicial, or post-judicial, ethics. As a former judge should he have advised on litigation? Should he have advised in particular on a recusal application? Should he have done so given the factual matrix of this case? Type two issues are issues of professional ethics as a ‘legal expert’. The Inquiry is looking at various legal advice and asking the question whether it is beyond the bounds of what a reasonable ethical lawyer would give? It’s unlikely they will find this and, although there may be other questions, type 2 issues are not so likely to arise.

Now in this case the Inquiry will address some of these, but without an Inquiry, any professionally questionable conduct floats free of accountability, (unless he had breached the law: I am not suggesting that he has done!). If he had not been a former SCJ he could advise on litigation as a non-lawyer with similar impunity, but of course in those circumstances, on this case, he would never have been asked. Allowing former judges back into practice as “legal experts” and in particular advise on litigation without a system of professional responsibility is a position that is hard to justify. They are in fact a very special kind of shadow barrister (or solicitor). The reputation of the system and the judiciary in particular should not allow this to pass without thought and probably action. They need to scrutinise and instantiate conventions and rules on judicial practice post-retirement