Lawyers as activists; limits and tensions
So far 18 barristers have declared they will act contrary to the barristers' Code of Conduct by refusing to take cases for clients they don't like, or refusing to prosecute clients they do.
Lawyers as activists – tensions and limits.
On 24th March 2023 120 lawyers signed a declaration that they will withhold their professional services in respect of
(i) supporting new fossil fuel projects; and
(ii) action against climate protesters exercising their democratic right of peaceful protest.
18 of the 120 were barristers and 6 of these Kings Counsel, including Jolyon Maugham.
On one level, the declaration can be dismissed as simply performative and empty virtue signalling. It is not clear whether any of those signing would be competent to accept instructions from the Crown Prosecution Service. Maugham is a specialist tax barrister. Professor Leslie Thomas claimed he was signing for moral support only and would not in reality refuse a brief. Tim Crosland was disbarred in January 2023 for publishing an embargoed Supreme Court judgment, which is contempt of court.
However, the declaration provoked immediate unease in the profession for its much wider implications as a breach of the barristers’ ‘cab rank rule’ and obligation not to discriminate. This is set out in Conduct Rules 28, 29 and 30 of the BSB handbook and are fundamental professional obligations.
Rule C28 provides that a barrister may not withhold services on the basis that the nature of the case is objectionable to the barrister or any section of the public or on the grounds that the “conduct, opinions or beliefs of the prospective client are unacceptable to you or to any section of the public…”
Rule C29 obliges a barrister who has the relevant expertise and available time, to accept instructions irrespective of “any belief or opinion which you may have formed as to the character, reputation, cause, conduct, guilt, or innocence of the client. “
There are exceptions to the cab rank rule at rule C30; for example, if you are not going to be paid a reasonable fee or it would require you to do ‘foreign’ work or work for a ‘foreign lawyer’.
Functioning democracies need activists – but there are ethical tensions for lawyers who put their activism above their professional obligations, alongside genuine and urgent questions about whether lawyers should prop up ‘bad law’, and who decides what ‘bad law’ is. Which laws are so morally repugnant that they should be transgressed immediately? And which should we obey, while we campaign to change?
In 2021 David Perry KC was criticised for accepting instructions to prosecute pro-democracy protesters in Hong Kong. The cab rank rule did not apply as this case fell within the exemption in Rule C30 regarding ‘foreign work’. Perry then withdrew from the case following widespread criticism, including Baroness Kennedy describing his decision to accept the brief as a ‘source of shame’. Arguably, Perry withdrew on the basis that others considered the Chinese approach to pro-democracy as repugnant - which looks like a breach of rule C28. But equally, acting for the Chinese Government to suppress fundamental human rights, was a potential ethical breach which could diminish the trust and confidence the public places in the profession (Core Duty 5).
The guidance note for C28, gC88, states:
‘…This rule of conduct is concerned with a broader obligation not to withhold your services on grounds that are inherently inconsistent with your role in upholding access to justice and the rule of law and therefore in this rule “discriminate” is used in this broader sense.’
Perry was therefore arguably upholding the rule of law by refusing the instructions of a government that denied a fundamental human right to protest. This appears to be the line taken by the lawyers who signed the declaration. Jolyon Maugham explained himself in this way:
Sometimes the law is wrong. What it stands for is the opposite of justice. Today’s history books speak with horror about what the law of yesterday did, of how it permitted racism, rape, and murder. And tomorrow’s history books will say the same about the law as it stands today, of how it enabled the destruction of our planet and the displacement of billions of people.
This is why, with respect, it is wrong for the former lord chancellor Robert Buckland to suggest hypocrisy because I would act for those accused of crimes of violence but not for the fossil fuel industry. The difference is that I support the law that imprisons those convicted of violence, but I cannot support laws that permit new fossil fuel projects.
We should not be forced to work for the law’s wrongful ends by helping deliver new fossil fuel projects. We should not be forced to prosecute our brave friends whose conduct, protesting against the destruction of the planet, the law wrongly criminalises.
However, I argue there is a clear distinction between acting for a government that seeks to deny its citizens a fundamental right, and those who protest the current lack of urgent response to climate change. The first is a clear-cut example of an identifiable law that so offends against the norms of civilised democracies, that it does demand an immediate transgression.
However, objections to fossil fuel projects or refusing to prosecute people who commit crimes while protesting reveals a much hazier moral imperative. Unless a person lives off grid and removed from modern society, that person is benefitting from fossil fuel projects and oil consumption. Those prevented from getting to work or hospital by members of Extinction Rebellion sitting in the road, do not share the signatories enthusiasm for this method of protest. The direction of moral travel is a lot less clear.
The cab rank rule and obligation not to discriminate, provides at least a degree of clarity and certainty which is not dependent on the sensibilities of the barrister. I agree with Maugham that it has little relevance in the arenas of high cost commercial litigation and it is clear for many access to justice depends on your access to money. But it remains important for those of who represent rapists or child abusers on legal aid– not because we support the right of others to rape or abuse children, but because we understand the importance of the rule of law and how everyone has a right to competent legal representation. If you were accused of a serious crime you would want to know that no barrister would turn you away on the basis that you were considered repulsive – but would represent you to the best of their ability, regardless.
If the cab rank rule is abandoned, and the decision whether to act is left to a barrister’s own subjective assessment of whether a client or a cause is palatable – where do we end up?
Will ‘gender critical’ women find themselves without representation in civil or criminal trials when barristers dismiss them as appalling bigots? One of the signatories to the declaration is Professor Leslie Thomas KC, formerly a joint Headsof Chambers at Garden Court who was found to have unlawfully discriminated against barrister colleague Allison Bailey on the basis that her ‘gender critical’ belief put her in contravention of the Equality Act 2010. No doubt Professor Thomas was genuine in his belief that Bailey was an appalling bigot, just as the signatories to the declaration are genuine about their belief that a failure to tackle climate change is an extremely serious evil.
But the genuineness or otherwise of a person’s belief is not the issue. Many people genuinely believe terrible things. The issue is to what extent can those of us who have an obligation to maintain a legal system, claim an individual right to judge a client or cause as unpalatable before the matter is decided in court?
Many of us watched in horror over social media on Friday 24th of March, events in New Zealand when Kellie Jay Keene narrowly avoided serious injury at the hands of a baying male mob, the police no where in sight, and New Zealand politicians having described her views as ‘vile and incorrect’. She was deemed to be not worthy of protection, because her views were not palatable to the New Zealand authorities.
In that context, it is interesting to note that it was Jolyon Maugham who made a public comment on Twitter on 29th November 2020 that the group Fair Cop (of which I am an identifiable member) was akin to ‘terrorists’ and should be a proscribed organisation.
I complained about this to the barristers’ regulatory body, the Bar Standards Board who took no action. This indicates to me that it is not just fossil fuel projects that Maugham considers unworthy of the protection of the law.
I am of course aware that I could be reasonably identified as an ‘activist lawyer’ and therefore should not attempt to criticise my colleagues who feel equally passionate about their own causes. I have examined and reflected on my own behaviour, and I consider my activism remains comfortably within my ethical obligations. I campaign to preserve everyone’s rights under Article 10 ECHR, for the preservation of single sex female spaces and the protection of children from irreversible and unevidenced medical transition. My activism does not deny anyone legal representation or access to the courts – it is about upholding the rule of law. I concede I have called for the repeal of the Gender Recognition Act 2004 and the amendment of the Equality Act 2010, but this does not mean that I consider either Act demands ‘immediate transgression’ and nor would I refuse to represent to the best of my ability any person, regardless of their sex, their sexuality, or their claimed gender identity expression.
I consider my conscience is clear and my activism compatible with my wider ethical obligations as a practising barrister. I wonder if the signatories of the declaration can say the same. Some have apparently ‘self-referred’ to our regulator and it will be interesting to know the outcomes.
I consider this declaration a serious and dangerous example of how the rule of law is diminished when it is denied to those considered to be unworthy. It doesn’t just risk denying representation to those accused of doing horrible things. If it is expected that a lawyer only takes on the clients and the cases which chime with his political leanings or moral sensibility then this puts the lawyers who continue to meet their professional obligations at risk of criticism or worse, for representing those deemed undesirable by others.
My first instinctive reaction to this story was to say that all the lawyers who signed this declaration should be struck off. Having taken the time to reflect and consider in more detail, I think my initial and instinctive reaction was correct. The code of conduct is not a pick and mix. If you find yourself drawn to political activism, then good for you. But if it means you decide you will disregard the fundamental ethical obligations of your profession, then you cannot be a barrister.
Thank-you for writing this, Sarah. Will now find your tweet of it & retweet!
Thank you for writing so about this so clearly and concisely. It seems deeply concerning. If cab rank rule and the concept that everyone is entitled to legal representation goes out the window, then then surely this will diminish public trust in the justice system.
If Joe Public doesn't think Mx. Blue Hair-Porpington III (BA, MA, PhD in Yoghurt Weaving) will ever face any legal retribution for their activism related crimes, it becomes much more tempting to run them over while they're glued to the M25 and blocking your route to the hospital. And it's already pretty tempting.