The Decline of the Judicial Retirement Convention, 1950-2020

O'Brien, Patrick; Yong, Ben; Anderson, Sam

Abstract

What do judges do after they retire? Until recently, UK judges were subject to the judicial retirement convention which governed their behaviour in retirement. This convention had two parts. Firstly, it prevented judges from returning to legal practice after the bench, and from speaking publicly about the details of their past work as judges. Secondly, it required them to be cautious in speaking about matters of politics and public controversy.
This article draws on an 18-month BA/Leverhulme-funded project into judicial retirement (which included a database of 585 judges between 1950 and 2020; and 21 interviews) to show that the retirement convention is now ineffective, if not completely dead. Judges now return to some form of legal practice in large numbers, and are so confused and sceptical about the convention that it exerts little influence on post-bench behaviour. At the same time, the relevant professional or institutional regulators – the judiciary, the government and (in England and Wales) the Bar Standards Board and Law Society – have all withdrawn from this aspect of legal and judicial practice.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.
We suggest this is a retrograde development. The retirement convention mattered: it addressed problems of impartiality and integrity; and bolstered public confidence in the judiciary. But it also balanced these matters of public interest with the private rights of individual judges. We recommend in its absence a mixture of voluntary guidance and professional regulation. In the vast majority of situations, former judges should not need regulation or guidance. In a limited set of situations – particularly where they contemplate public roles or speaking on politics – voluntary guidance is appropriate. In a still more limited set of professional legal service roles, targeted professional regulation emanating from the Bar and the Law Society should be considered.

Citation

O'Brien, P., Yong, B., & Anderson, S. (2024). The Decline of the Judicial Retirement Convention, 1950-2020. Public Law, 2024(Oct), 623-647

• Journal Article Type: Article
• Acceptance Date: Jun 13, 2024
• Online Publication Date: Oct 28, 2024
• Publication Date: 2024-10
• Deposit Date: Jun 14, 2024
• Publicly Available Date: Oct 28, 2024
• Journal: Public Law
• Print ISSN: 0033-3565
• Publisher: Sweet and Maxwell
• Peer Reviewed: Peer Reviewed
• Volume: 2024
• Issue: Oct
• Pages: 623-647
• Public URL: https://durham-repository.worktribe.com/output/2483502
• Publisher URL: https://www.sweetandmaxwell.co.uk/Product/Administrative-Law/Public-Law/Journal/30791427