Retired judges wishing to return to legal work should obtain a practising certificate from the Law Society or Bar Standards Board, an academic report has suggested.

A policy report on work in judicial retirement concludes that an informal convention previously preventing former judges returning to practice was now ‘ineffective if not completely dead’, pointing out that almost three-quarters of retired judges at High Court level or above took on some form of legal work between 2010 and 2020.

Judges interviewed for the report suggested they would not be open to regulation. ‘What judges need to be told how to behave themselves properly? For goodness sake,’ one said. 

However, the report says some form of regulation is required. The behaviour of retired judges in certain circumstances, such as advocacy and conduct of litigation, ‘is a matter of public interest and therefore an appropriate object of formal professional regulation'.

A ‘rapid and total deregulation’ of judicial retirement in the UK goes against the direction of travel in two other major common law jurisdictions, Canada and Australasia, where robust guidance has been introduced in response to increased activity by retired judges.

The report suggests that a revised Ministry of Justice ‘understanding’ document signed by new judges on appointment and the Guide to Judicial Conduct would make clear that it is acceptable for judges to return to legal practice, but they are expected to obtain a practising certificate from the Law Society or Bar Standards Board. The SRA standards and regulations and BSB handbook would cover former judges and provide appropriate practice restrictions.

Common practice conditions would include a ban on accepting instructions on matters that came before the former judge during their judicial career.

The report says: ‘The regulatory approach we propose effectively reintroduces a modified form of the retirement convention: non-binding but robust guidance that former judges who wish to provide legal services should opt into professional regulation. This is the approach taken by the former Irish Chief Justice, Frank Clarke, who recently returned to the Irish bar to take arbitration and mediation work but accepts a practice restriction that he may not appear before any Irish court.’

The report was written by Dr Patrick O'Brien, of Oxford Brookes University, and Dr Ben Yong, of the University of Durham.