It has been reported that some 120 or so Barristers in England and Wales are going to sign a “Declaration of Conscience” stating that they will not prosecute people who are accused of crimes in the course of climate activism nor will they give advice which would further the exploration of oil and gas. I think they are wrong to do so and in this blog post I will explain why I think they are wrong to do so.
There are two fundamental interlinked principles which I think are being undermined here. The first is that equality before the law demands that every person be able to access legal representation and the second is that counsel should not be identified with their client. These two fundamental principles are, in my view, essential to the proper functioning of the administration of justice.
It is common to both the Bars of England and Wales and Scotland that their members are bound by a rule known as the “cab-rank rule”. At a taxi rank the driver at the front of the queue is bound to take the first fare that comes along: no matter who the customer is and no matter the journey. They can’t, for example, decline a fare because it’s too short a journey in the hope that a batter fare will come along. At its core, the cab-rank principle, as it applies to the Bar, is that lawyers must accept instructions where they are available, can competently do the work and the client is offering to pay a reasonable fee (and that, certainly so far as Scotland is concerned, includes a client in receipt of legal aid).
The cab-rank rule means that lawyers are unable to decline instructions simply because they don’t like the client or the client’s case is a moral affront to them. Therefore, it becomes wrong to associate the lawyer with their client; they’re not acting because they support the client, they are acting because they have a duty in a society governed by the Rule of Law to act. It means that lawyers should not be criticised for, for example, acting on behalf of asylum seekers in appeals against decisions of the Secretary of State or acting for the Secretary of State in such appeals; it means that lawyers should not be criticised for defending those who have committed the most depraved crimes and so on. They are, after all, simply doing their job.
It is often said that this approach is, itself, lacking in morality. I disagree, in a democratic society the rule of law is fundamental. The rule of law is what ensures that the state doesn’t become too over-bearing, it is what ensures that consumers are protected in their dealings with companies, it is how employees are protected against bad employers and employers are protected from bad employees, it is how companies are protected in their dealings with one another and so on. The morality rests, in my view, in the need to ensure maintenance of the rule of law.
This feeds into the notion that every person is entitled to representation. The cab-rank rule ensures that this is the case. Representation for lots of people could be declined on the basis of conscious: those accused of abusing children; those accused of acts of terrorism; those accused of murder – especially that of vulnerable groups such as children; those accused of neglecting their children in cases where the State is trying to remove the children and so on. Where would that leave our justice system? Some might say better off, but I disagree. People without representation means that they have to represent themselves. If you consider yourself to be victim-focussed that is a bad thing: it would mean alleged domestic abusers directly cross-examining those they are accused of abusing; it would mean those who have allegedly committed harrowing assaults on children cross-examining those same children where they are old enough to give evidence; it would mean those accused of rape cross-examining those who they are said to have raped.
Furthermore, it risks injustice in the system. Lawyers exist to serve several functions within the justice system. One of those is to ensure that the process is fair and conducted in line with the rules applicable to the case. In the criminal sphere you could have innocence people wrongly convicted because they were at a disadvantage; it also ensures that the public can have confidence that those convicted were done so fairly. Courts make mistakes and that’s why we have appellate courts and ultimately bodies such as the Scottish Criminal Cases Review Commission. Outside of the criminal sphere, again, you could have children wrongly removed from parents because they are at a disadvantage due to a lack of representation. Our society is better off as a result of ensuring that those accused of the most reprehensible things are dealt with fairly.
Now, these lawyers are only talking about refusing prosecution cases in the criminal context, not defence cases. However, as soon as you introduce the concept of lawyers refusing cases on the basis of the lawyer’s own personal principles, you open the gates to other areas of work being refused on the same basis. The system starts to break down and society, as a whole, is poorer for it.
It has also been pointed out that many of those reported to be signing the declaration are unlikely to actually ever receive instructions of that nature, but that is, in my view, an irrelevance. The performative nature of the decision still undermines the fundamental principles I outlined at the start of this post. It opens the door to associating lawyers with their clients, it undermines the principles supported by the cab-rank rule and it opens the door to people actually being refused representation because of the principles of the lawyer.
The legal profession is facing unprecedented and, in my view, unwarranted attacks from government for acting for those deemed unworthy by them, by sections of the media and ultimately sections of the public. Actions like this from members of the profession play right into those narratives, they make it harder for the vast majority of the Bar who stand by the principles at the centre of our profession. They will increase the pressure on counsel to stop acting for other groups deemed unworthy of representation by the government and by parts of society. The decision by these lawyers might have no actual effect on their own practice or on the ability of people to actually obtain representation, but what they are doing is damaging the profession as a whole and risking principles which are fundamental to our democracy.
In short, it is my view that if you feel as though your personal principles mean that you cannot properly do what is expected of you as counsel then, perhaps, the profession is not for you. We don’t expect, for example, doctors not to treat a patient because of who the patient is, what they have done, or the lifestyle choices made by that patient. Sometimes putting our own moral position to one side and serving a higher, more fundamental principle can be the hardest thing to do, but ultimately, we need people to do that to ensure the proper functioning of our democracy. It is not a choice for counsel to do so, it is a fundamental part of the job.
This post was updated on 24 March 2023 to add in a missing “not” in the second paragraph.