The Bar Standards Board (BSB) has issued an apology to leading silk Dinah Rose for its handling of a complaint against her and suggesting she might have been reckless in her conduct.
It also apologised for not notifying the barrister about the findings it made.
Ms Rose said this episode had “profoundly shocked” her. “Barristers are entitled to expect that the BSB understands the code of conduct it operates, and administers that code in accordance with the basic principles of natural justice,” she wrote on Twitter.
Ms Rose, who practises from Blackstone Chambers, came under the spotlight last year after she acted for the Cayman Islands government before the Privy Council in successfully arguing that the Caribbean islands’ constitution did not confer a right on same-sex couples to marry and have their marriage recognised in law.
The barrister is particularly known for her human rights and civil liberties work, and is also president of Magdalen College in Oxford. She was criticised by students at the university and by a LGBTQIA+ group called Colours Caribbean for taking on the case.
In response, Ms Rose cited the cab-rank rule and was backed by the BSB, which agreed that the foreign work exception to the rule did not apply where, as here, the court was sitting in England and Wales.
At the time, she tweeted that “I unequivocally support LGBTQ+ rights” and said the case concerned a constitutional point on whether the decision to allow same-sex marriage rested with the courts or the legislature; it was not whether same-sex marriage should be allowed or not.
Colours Caribbean nonetheless complained to the BSB and in a press release last month reported that the BSB and an independent reviewer had concluded: “Accepting instructions from a foreign lawyer would have brought the Dinah Rose KC within the exemption at rC30.6 and meant she could, in principle, have declined the instructions to appear in the Privy Council proceedings…
“As a senior barrister she could be expected to be aware of the cab-rank rule and its operation in practice. Taking this at its highest, this might possibly amount to evidence of recklessness.”
However, the press release did not put this comment into context or include anything else from the BSB, except to say that, “despite these damning findings”, the regulator had decided not to take any action against Ms Rose.
Colours Caribbean urged the barrister to apologise and donate her fee to a “worthy cause” in the Caymans.
The story was reported by The Times this week as saying “it has emerged that the Bar Standards Board decided a few weeks ago that Rose had been wrong and that professional rules did not oblige her to represent the Cayman Islands before the council”.
In a response published yesterday, the BSB stressed that it has taken no regulatory action and not made a ruling against her. “We apologise to Ms Rose if this has not been made sufficiently clear.”
It continued: “Irrespective of the detailed provisions of the cab rank rule, the Bar code of conduct provides at rule rC28 that a barrister must not withhold their services on the grounds that the nature of the case or the conduct or opinions of the client are objectionable or unacceptable.
“Ms Rose was correct to act in accordance with her obligations under rC28 when deciding whether to accept the instructions. Criticism of Ms Rose for taking on this case is, accordingly, misplaced.”
The regulator said it saw no evidence to support a contention that Ms Rose knowingly misled or attempted to mislead anyone in her public statement about being bound by the cab-rank rule.
“Nor was there evidence that she was reckless in doing so and the BSB’s view of the statement was that it was careful in its content and tone.
“The letter quoted in The Times did not include any discussion of rC28, as the report received referred to another rule in the Handbook. The BSB accepts that both are relevant. In any event the BSB did not find Ms Rose to have been ‘reckless’ or to have acted inappropriately.
“The BSB accepts that, before reviewing its original decision and in the circumstances of this case, it would have been appropriate to have invited Ms Rose to comment on the review. It apologises to Ms Rose for its failure to do so and has commenced a review of its processes for the future.”
Ms Rose said in response: “I was appalled to discover this week that the BSB had entertained a complaint about my conduct without giving me any opportunity to respond to it, and that its independent reviewer, whilst rejecting that complaint as unfounded, had made comments that were based on an erroneous and incomplete reading of the Bar code of conduct.
“I would like to thank the BSB for its recognition that its process was flawed, and for its apology today…
“Our legal system cannot function without advocates who are prepared to argue all sides of a case, including those which are objectionable or unpopular.
“I am pleased that the BSB has now accepted that I was bound by my professional obligations to appear for the Cayman Islands government.”
She added on Twitter that The Times was “warned that they were taking a quote from a press release out of context, without the decision being available. They pressed on and published it, regardless. I have instructed solicitors to bring libel proceedings”.
It is not the first time that the BSB has had to make a public apology to a high-profile barrister over its handling of a complaint against them, after doing the same to Khawar Qureshi KC back in 2017.