The estimable Joshua Rozenberg has written a deft post on Lord Neuberger’s involvement in Post Office Scandal. It is fantastic that he is taking an interest; an in influential journalist to whom senior figures and the general public pay a great deal of attention, he is an important voice. And an important voice of caution. We should all pay attention.
At the risk of coming across a bit like Sue Ellen to his JR (I hasten to add JR is nothing like that JR), I thought the briefest responses might be in order.
He says say the convention on judicial advice, “surely does not apply to written advice, given in confidence.”
Here, Lord Neuberger’s own response to this is important. When I first became interested in his involvement, he kindly replied to my request for comment (posted here). Lord Neuberger seemed uncertain as to whether such convention once applied to advice given on live cases but was of the view that any convention, including that one, had fallen by the wayside.
And I think a working party report led by Pill LJ, amongst others in 2005, is important. They put forward this argument. “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.” There is more detail in the same post.
For me, the central point, and it is one seized of by the Inquiry, is not this influence on judges but on others. In his opening submissions, Jason Beer KCtalks about senior lawyers being used as comfort blankets for the Board. He is explicitly talking about Brian Altman KC when he makes the remark, but I suspect he has in mind Lord Neuberger, Lord Grabiner, Jonathan Swift QC (as he then was), and Brian Altman KC.
The essential point is that it was not (just) the quality of the advice that was important but the status of the advice-givers that was being used or abused by those giving them instructions. The Inquiry is, of course, also interested in the actual quality of the relevant advices; though I have seen no criticism of Lord Neuberger’s, one might spot a question or two about others. Beer raises the question specifically and in general I think whether some advice was beyond the realms of advice a reasonable practitioner would give.
As well as the actual content of the advice being important, I agree with Joshua about one really important point about Fraser not being cowed by Grabiner’s remarks (rather the reverse in fact) even though Coulson LJ also picked up on their inappropriateness in a broader, scorching critique of the application. It’s interesting to note that I am often told otherwise by senior practitioners; that this kind of hierarchy game has an influence on judges. I remain sceptical of that, but the contrary view is worth noting.
It’s the effect of hierarchy games on others that I am more concerned about here.
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