A row about the cab-rank rule blew up today after barristers who have committed not to prosecute climate protestors or work for fossil fuel companies self-reported themselves to the Bar Standards Board (BSB).
The Daily Mail’s lead story today was headlined: “Fury at woke barristers refusing to prosecute eco warriors”, while the chair of the Bar Council this week seemed to pre-empt events by speaking about the importance of the cab-rank rule and barristers not putting their personal views ahead of clients.
He also warned barristers against publicly celebrating their clients’ victories because of the risk of being associated with them and their causes.
More than 120 lawyers, organised by a group called Lawyers Are Responsible, have published a Declaration of Conscience, in which they say they will refuse to act for new fossil fuel projects or to prosecute members of campaign groups opposing new fossil fuel projects, such as Extinction Rebellion, Insulate Britain and Just Stop Oil.
In a statement, the group said: “The barristers now face the prospect of disciplinary action for breach of professional regulations (such as the ‘cab-rank rule’), which require them to take on any case within their competence. Some of them have self-reported to the Bar Standards Board.
“This is understood to be the first time in legal history that barristers have engaged in a collective act of civil disobedience.”
The signatories are a mix of barristers, solicitors, academics and others. They include Sir Geoffrey Bindman KC, chair of the British Institute of Human Rights, Farhana Yamin, one of the architects of the Paris Agreement on Climate Change, Imran Khan KC, who represented the family of Stephen Lawrence, Professor Leslie Thomas KC, Gresham Professor of Law and a member of the BSB board, and Jolyon Maugham KC, founder of the Good Law Project.
Others are Aoife Fleming, legal co-ordinator for World’s Youth for Climate Justice, and Tim Hirschel-Burns, co-founder of US group Law Students for Climate Accountability.
It is not clear how many of the 18 barristers listed actually handle prosecution worik.
The declaration will be launched next Wednesday outside the Royal Courts of Justice.
Paul Powlesland, a barrister signatory well-known for his climate activism, was interviewed this morning on the Jeremy Vine show on Channel 5.
He explained: “We have to ask ourselves – who should be in the dock here? Should it be people who are peacefully trying to draw attention to the greatest crisis that we face or should it be the fossil fuel execs who are knowingly taking a course of action that will lead to the deaths of millions of people in the Global South in the coming decades?”
A junior lawyer, who wished to remain anonymous, said: “Young lawyers are being placed in an impossible position. We’re being told by our firms and regulators it’s a professional obligation to act for fossil fuel projects, knowing that doing so will poison our own future and all of life on earth.
“That’s wrong on every level. It’s indefensible. If the profession doesn’t look out for my generation, how does it expect to survive?”
Ex-barrister Tim Crosland, the director of the climate justice charity Plan B.Earth, who was recently disbarred for releasing an embargoed Supreme Court ruling on the planned third runway for Heathrow airport, said: “Behind every new oil and gas deal sits a lawyer getting rich. Many of them in the City of London law firms with strong and historic ties to the fossil fuel industry.
“For the time being, these firms remain as reputable as Harvey Weinstein before #MeToo… Lawyers are responsible. It’s time to take a stand.”
Speaking at a choral evensong at Temple Church earlier this week, Bar Council chair Nick Vineall KC highlighted three threats to the “public good” of people being represented by the advocate of their choice.
The first was being able to pay – meaning the ongoing legal aid debate. The second was “societal disapproval” of a client or their cause and the barrister’s fear of their reputation being tarnished by association.
“This can in part be addressed by exhortations and statements of principle that lawyers are not to be associated with their clients by virtue of fulfilling their functions as lawyers.”
But he acknowledged that this approach was “very far from perfect”, continuing: “Many people, even some lawyers, seem to find it difficult to grasp that just because I represent Mr X does not mean I agree with or approve of Mr X. Hence the jibes about immigration lawyers.”
Mr Vineall went on: “But we need to ensure that our own house is in order too. We need to be careful about what we say about our clients and their causes. It is tempting when one has acted for a client who has been successful in court and when one approves of one’s client’s cause, to say how pleased one is.”
There were examples of this every day on LinkedIn and chambers’ websites, the silk said. “But by doing so, barristers associate with their clients and they do so at the cost of their independence or at the very least public perception of their independence.”
It was also unfair to other clients where the barrister did not rush to say how pleased they were to have won.
The third threat was barristers unwilling to act for clients of whom they disapprove, and Mr VIneall specified those citing climate change.
“I have no doubt that these views are genuinely held and derive from good intentions but I firmly believe that the greater good is achieved by the well-established approach that we have long adopted as a profession,” he said.
“It recognises that it is for judges and juries to decide and to judge and that passing judgment is not the role of advocates…
“As a result, access to justice is promoted. As a result, the sins of the client are not to be visited on the advocate. As a result, we can hope to continue to have a system in which even those who have behaved appallingly can still have their rights effectively vindicated.
“And in this way barristers, who are good people, can properly represent clients who are not.”
After the service, Mr Powlesland tweeted that it was “disgraceful” that Mr Vineall was given a 15-minute speech “*during* a service of holy worship to attack barristers who refuse to act for oil companies causing climate death & destruction”.
He also held a silent protest before and after the service, as shown in the picture.
BSB chief executive Mark Neale issued a statement this morning explaining the cab-rank and how it was “designed to ensure that everyone can have access to legal advice”.
The Secret Barrister weighed in on the issue, tweeting: “The day that I decide I cannot defend or prosecute somebody because of what they are accused of, is the day that I should find another profession. Because the entire point of the independent Bar is to provide representation. Not to judge the cause of the clients we represent.”