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In March 2023, a number of lawyers – organised by the group Lawyers are Responsible which includes several members of the Bar – signed a ‘declaration of conscience’. This, among other things, stated the signatories’ refusal to act for new fossil fuel projects or to prosecute members of campaign groups opposing new fossil fuel projects. As many readers will be aware, the declaration quickly ignited debate among the profession of the potential conflict between these declarations and the barristers’ ethical obligations, specifically observance of the cab rank rule (CRR).
It was decided, following a request from an elected Bar Council member, that a debate would be held at the meeting of the Bar Council on 25 April 2023 to ‘debate and hear views on the ongoing importance of the cab rank rule and its role in promoting access to justice and the rule of law’. Members were invited to focus in particular on two questions:
Of course, this was not the first time over the past year that the CRR has been thrust into the professional and public consciousness; the Bar having restated the significance of the rule in response to criticism from politicians and the media concerning lawyers’ representation of asylum seekers and individuals connected to the Russian state. This, however, felt like the first time in recent memory that the profession sought to grapple internally with the role and importance of the CRR, in particular in the context of one of the great challenges faced by our society. Summarising all of the arguments put forward to date is not easy – there are and will be many nuanced views on this. So for now I will limit myself to reporting in a neutral way those that were articulated at the Bar Council debate.
A written argument on behalf of Lawyers are Responsible was circulated to those in attendance, and a member of that group spoke to the meeting, albeit acknowledging that the views they expressed were not to be seen as entirely substitutable for the group’s. They identified that our sister profession, the Law Society, had been more strident in acknowledging that their professionals could refuse to take work by fossil fuel companies, and that this was a more radical approach than the Bar. It was recognised that the two professions are not the same, but on this issue, it was asked whether they truly needed to be divergent. The essence of being a barrister is argument based on evidence, and the evidence that the Climate Crisis is an existential issue was beyond reproach – 10s or 100s of millions of people worldwide would die and/or be displaced by the effects of climate change if the world did not act swiftly.
To that end, it was posed, was it right that the Bar was deliberately and knowingly causing the deaths of millions of people by representing oil and gas field companies? It was suggested that efforts to date such as encouraging others to put up solar panels or printing double-sided were woefully inadequate to meet this challenge. There was also a problem with the profession’s willingness to engage with the issue: promotion of the profession’s role, it was said, had been stifled. Furthermore, existing efforts at the Bar focused only on net zero within the profession, which was statistically irrelevant.
Specifically as regards the CRR debate, it was argued that it had been very unnuanced – the examples cited concerning rapists and murderers receiving representation did not account for the fact that – in particular at the civil Bar – representation was provided to those who could afford it, rather than everyone who needed it. Legal aid itself acted as a suitable barometer – it is offered to alleged criminals because it is right that they have access to legal representation; it is not offered to oil and gas companies. Lastly, there was a call for a more open and public debate on the role of the profession with regard to the Climate Crisis, and the Bar Council was invited to obtain further evidence to better inform the debate: Who are we acting for as a profession? How much time are we spending on it? How much are we making from the work?
For those advocating on behalf of observance of the CRR, it was stated that it is a moral good that morally bad clients are represented. The CRR imposes an obligation to accept work from those with whom we profoundly disagree and/or disapprove of. It is for judges and juries to pass judgment, not advocates; barristers are not guardians of a particular position. When the government attacked lawyers for representing asylum seekers and Russian oligarchs the Bar was brave enough to defend the role of lawyers. The CRR, it was argued, guarantees that no one is left without competent legal representation in court, and it applies equally to corporations and individuals. There was some anxiety expressed about in-roads into rules, as such in-roads often end up damaging the most vulnerable in society. The CRR was too valuable a protection to sacrifice, even in a small way, because it has come up against a single morally questionable barrier.
Those working within the Bar Council’s Climate Crisis Working Group pointed out that the group’s guiding strategy – net zero for the Bar by 2050 – does not include net zero for barristers’ clients. The client should not be able to absolve itself of responsibility for emissions by blaming its barristers, and barristers, it was argued, should not therefore affiliate themselves with the views of the client. Though the impact of the Bar’s work in this area appeared on its face statistically small, this presented a chance for the Bar Council to set an example for other Bars around the world.
Lastly, attention was drawn back to a core function of a regulated profession: adopting rules to regulate conduct. It was argued that it was not the Bar’s business as a profession to go very far outside that scope. The Bar creates rules around conduct of advocacy, but doesn’t try to regulate how our members do other things (outside of bringing the profession into disrepute). The Bar, it was stated, ought to be careful about drawing up rules about how barristers do things that are not giving advice to clients or advocacy, because in that way we can guarantee representation and advice to everyone and anyone who needs it. This should be at heart of the profession’s ethos.
That, in broad terms, summarises the positions as articulated at the debate. I am aware there are more – and different – views not captured here but do not want to risk mischaracterising them or appearing to place more importance on some views over others. Introducing the debate, Chair of the Bar Nick Vineall KC stated that it was not in his view an oppositional debate, and that it was a shame that the issues of CRR and the Climate Crisis have become intertwined, because the point of the CRR is not to act on a view based on the merits of your client’s case.
In my view, it is both a good and bad thing that the debate around the CRR has emerged in the context of the profession’s response to the Climate Crisis. Good, because it has provided another opportunity to improve the wider public’s understanding of the – not easily understood – role and ethical obligations of barristers. Good also, because it has placed the Bar’s response to the Climate Crisis front and centre, given attention and energy to those groups already making efforts to decarbonise the profession, and legitimately posed difficult questions as to what more can and should be done in the face of one the great challenges of our time.
But to echo Nick, the risk with the way this debate has developed is to conjoin two entirely separate issues: 1) How should the Bar respond to the Climate Crisis? and 2) What is the role and importance of the CRR to the profession? There will doubtless be many who feel very strongly that the Bar needs to be more radical in its approach to decarbonisation, but also that barristers should not pick and choose the clients and causes they represent. Equally there may be those who take a contrary view on both the CRR and the Bar’s response to the Climate Crisis. We should not risk denying the existence and voice of these groups by merging two separate and distinct questions.
Lastly – and whichever side of the debate you fall on – a brief note about the importance of how we deal with one another both in this and other conversations we have as a profession. Though the debate at the Bar Council meeting was conducted in (I felt) a fair, reasonable and courteous way, like many I cannot escape noticing that the tone of the discussions elsewhere (and in particular on social media) has not always been like this and has occasionally descended into particularly personal attacks on individuals, which I have observed from all ‘sides’. It is clear and understandable that these issues invoke a lot of passion, but we need to be wary about channeling it in the right way. Personal attacks are not only irrelevant to the issues at hand, they demean the profession, and – most importantly of all – can be hurtful to those they target. The Bar has a strong tradition of collegiality and engaging in robust but good-natured debate focusing on issues, not personalities. Let’s keep it that way.
Michael Harwood is Chair of the Young Barristers’ Committee for 2023 and has been an elected member of the Bar Council since 2020. Michael practises from 4-5 Gray’s Inn Square, specialising predominantly in public and regulatory law, having spent his early career as a lawyer at the Government Legal Department.
In March 2023, a number of lawyers – organised by the group Lawyers are Responsible which includes several members of the Bar – signed a ‘declaration of conscience’. This, among other things, stated the signatories’ refusal to act for new fossil fuel projects or to prosecute members of campaign groups opposing new fossil fuel projects. As many readers will be aware, the declaration quickly ignited debate among the profession of the potential conflict between these declarations and the barristers’ ethical obligations, specifically observance of the cab rank rule (CRR).
It was decided, following a request from an elected Bar Council member, that a debate would be held at the meeting of the Bar Council on 25 April 2023 to ‘debate and hear views on the ongoing importance of the cab rank rule and its role in promoting access to justice and the rule of law’. Members were invited to focus in particular on two questions:
Of course, this was not the first time over the past year that the CRR has been thrust into the professional and public consciousness; the Bar having restated the significance of the rule in response to criticism from politicians and the media concerning lawyers’ representation of asylum seekers and individuals connected to the Russian state. This, however, felt like the first time in recent memory that the profession sought to grapple internally with the role and importance of the CRR, in particular in the context of one of the great challenges faced by our society. Summarising all of the arguments put forward to date is not easy – there are and will be many nuanced views on this. So for now I will limit myself to reporting in a neutral way those that were articulated at the Bar Council debate.
A written argument on behalf of Lawyers are Responsible was circulated to those in attendance, and a member of that group spoke to the meeting, albeit acknowledging that the views they expressed were not to be seen as entirely substitutable for the group’s. They identified that our sister profession, the Law Society, had been more strident in acknowledging that their professionals could refuse to take work by fossil fuel companies, and that this was a more radical approach than the Bar. It was recognised that the two professions are not the same, but on this issue, it was asked whether they truly needed to be divergent. The essence of being a barrister is argument based on evidence, and the evidence that the Climate Crisis is an existential issue was beyond reproach – 10s or 100s of millions of people worldwide would die and/or be displaced by the effects of climate change if the world did not act swiftly.
To that end, it was posed, was it right that the Bar was deliberately and knowingly causing the deaths of millions of people by representing oil and gas field companies? It was suggested that efforts to date such as encouraging others to put up solar panels or printing double-sided were woefully inadequate to meet this challenge. There was also a problem with the profession’s willingness to engage with the issue: promotion of the profession’s role, it was said, had been stifled. Furthermore, existing efforts at the Bar focused only on net zero within the profession, which was statistically irrelevant.
Specifically as regards the CRR debate, it was argued that it had been very unnuanced – the examples cited concerning rapists and murderers receiving representation did not account for the fact that – in particular at the civil Bar – representation was provided to those who could afford it, rather than everyone who needed it. Legal aid itself acted as a suitable barometer – it is offered to alleged criminals because it is right that they have access to legal representation; it is not offered to oil and gas companies. Lastly, there was a call for a more open and public debate on the role of the profession with regard to the Climate Crisis, and the Bar Council was invited to obtain further evidence to better inform the debate: Who are we acting for as a profession? How much time are we spending on it? How much are we making from the work?
For those advocating on behalf of observance of the CRR, it was stated that it is a moral good that morally bad clients are represented. The CRR imposes an obligation to accept work from those with whom we profoundly disagree and/or disapprove of. It is for judges and juries to pass judgment, not advocates; barristers are not guardians of a particular position. When the government attacked lawyers for representing asylum seekers and Russian oligarchs the Bar was brave enough to defend the role of lawyers. The CRR, it was argued, guarantees that no one is left without competent legal representation in court, and it applies equally to corporations and individuals. There was some anxiety expressed about in-roads into rules, as such in-roads often end up damaging the most vulnerable in society. The CRR was too valuable a protection to sacrifice, even in a small way, because it has come up against a single morally questionable barrier.
Those working within the Bar Council’s Climate Crisis Working Group pointed out that the group’s guiding strategy – net zero for the Bar by 2050 – does not include net zero for barristers’ clients. The client should not be able to absolve itself of responsibility for emissions by blaming its barristers, and barristers, it was argued, should not therefore affiliate themselves with the views of the client. Though the impact of the Bar’s work in this area appeared on its face statistically small, this presented a chance for the Bar Council to set an example for other Bars around the world.
Lastly, attention was drawn back to a core function of a regulated profession: adopting rules to regulate conduct. It was argued that it was not the Bar’s business as a profession to go very far outside that scope. The Bar creates rules around conduct of advocacy, but doesn’t try to regulate how our members do other things (outside of bringing the profession into disrepute). The Bar, it was stated, ought to be careful about drawing up rules about how barristers do things that are not giving advice to clients or advocacy, because in that way we can guarantee representation and advice to everyone and anyone who needs it. This should be at heart of the profession’s ethos.
That, in broad terms, summarises the positions as articulated at the debate. I am aware there are more – and different – views not captured here but do not want to risk mischaracterising them or appearing to place more importance on some views over others. Introducing the debate, Chair of the Bar Nick Vineall KC stated that it was not in his view an oppositional debate, and that it was a shame that the issues of CRR and the Climate Crisis have become intertwined, because the point of the CRR is not to act on a view based on the merits of your client’s case.
In my view, it is both a good and bad thing that the debate around the CRR has emerged in the context of the profession’s response to the Climate Crisis. Good, because it has provided another opportunity to improve the wider public’s understanding of the – not easily understood – role and ethical obligations of barristers. Good also, because it has placed the Bar’s response to the Climate Crisis front and centre, given attention and energy to those groups already making efforts to decarbonise the profession, and legitimately posed difficult questions as to what more can and should be done in the face of one the great challenges of our time.
But to echo Nick, the risk with the way this debate has developed is to conjoin two entirely separate issues: 1) How should the Bar respond to the Climate Crisis? and 2) What is the role and importance of the CRR to the profession? There will doubtless be many who feel very strongly that the Bar needs to be more radical in its approach to decarbonisation, but also that barristers should not pick and choose the clients and causes they represent. Equally there may be those who take a contrary view on both the CRR and the Bar’s response to the Climate Crisis. We should not risk denying the existence and voice of these groups by merging two separate and distinct questions.
Lastly – and whichever side of the debate you fall on – a brief note about the importance of how we deal with one another both in this and other conversations we have as a profession. Though the debate at the Bar Council meeting was conducted in (I felt) a fair, reasonable and courteous way, like many I cannot escape noticing that the tone of the discussions elsewhere (and in particular on social media) has not always been like this and has occasionally descended into particularly personal attacks on individuals, which I have observed from all ‘sides’. It is clear and understandable that these issues invoke a lot of passion, but we need to be wary about channeling it in the right way. Personal attacks are not only irrelevant to the issues at hand, they demean the profession, and – most importantly of all – can be hurtful to those they target. The Bar has a strong tradition of collegiality and engaging in robust but good-natured debate focusing on issues, not personalities. Let’s keep it that way.
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