Habel: Tension between lawyers’ rights and regulators’ duties
Lawyers keen to protest in the streets with Extinction Rebellion (XR) should carry out their own “risk analysis” before taking part, a regulatory specialist has said.
Gideon Habel, an associate at Leigh Day, said solicitors and barristers had to “balance their determination to get their voice heard with the risks of disciplinary action”, not to mention being arrested.
Mr Habel said solicitors were obliged to uphold the rule of law and administration of justice, behave in a way that maintains public trust in them and comply with their regulatory obligations (SRA principles 1, 6 and 7).
He said the position had been complicated for those protesting with XR last week because the Metropolitan Police had obtained an order under section 14 of the Public Order Act requiring the protests in London to cease.
Following the launch of a judicial review by XR, the order has been lifted.
“The climate change crisis is clearly a matter of very personal and deep concern to everyone, including solicitors and barristers,” Mr Habel said.
“Many have children whose futures needed protecting and peaceful protest is a treasured element of our democracy.”
Mr Habel said he believed lawyers would not deliberately try and get themselves arrested, but were more likely to have risked arrest by breaching the section 14 order.
He said the situation raised “really interesting questions” about the degree to which a solicitor’s inalienable rights could be curtailed by a regulator.
“There is a tension between the individual rights of legal professionals protected by the common law and Human Rights Act, and the degree to which a professional regulator can limit those rights to protect the reputation of the profession and carry out its duties as a public interest regulator.”
Mr Habel said it was up to regulators to assess the public interest in disciplining lawyers should offences arise, but every lawyer should carry out their own “individual risk analysis”.
Lawyers for Extinction Rebellion demonstrated outside the Royal Courts of Justice earlier this month.
The group has published a ‘declaration’ on its website urging “all those in the profession” to get involved.
“Whether it is giving time pro bono in service of the earth and those seeking to protect it, to raising awareness of the climate crisis within the profession or joining us on the streets, there are so many ways we can meaningfully assist.”
The group said that, “in the context of the climate and ecological emergency”, it supported the right of XR and similar environmental activists to “peaceful protest and participation in acts of non-violent civil disobedience” to bring about the “system change” that was required.
“In humanity’s darkest hour, we have forgotten our power. We wish to re-establish lawyers as powerful storytellers with the intelligence, imagination, influence and courage to shape the world around us according to our principles and conscience.
“We hope that you will pause with us and consider what you want the lasting impact of your life and work to be. We invite and urge you to join us in this rebellion.”
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