Cab-rank rule: yes or no?

The Legal Services Board discussed the barristers’ cab-rank rule at its recent board meeting. The Legal Services Board has not been sympathetic in the past.

For instance, it commissioned a report 10 years ago which reached the usual conclusions: that the cab-rank rule has never been the basis of a disciplinary finding by the regulator (which the LSB says is still the case); that it is virtually unenforceable because barristers are in charge of all the exemptions (‘I’m too busy’, ‘It’s not my field of expertise’, ‘The fee is not reasonable’); and that it applies only in specific and limited circumstances (not direct access clients, not foreign work). The rule can be found in rC29-30 of the bar’s handbook, and the exceptions go on for much longer than the rule itself.

The bar continues to adore the rule. For instance, its chair wrote a letter to The Times recently in its strong support. In summary, he described it as saying that barristers must, if available, accept properly paid instructions for every case within their expertise and they can never decline to act based on the client’s cause, or beliefs, nor on what they — or anyone else — thinks of the client.

The LSB is again reflecting on the rule because two existential threats have brought it centre-stage.

The first is climate change. A number of barristers publicly declared some months ago that they would not act against climate protesters exercising their democratic right of peaceful protest. This caused a huge row, and much soul-searching. In the end, the Bar Standards Board decided that the signatories did not breach the rule, but that it would look at the matter again if any of them declined to act when faced with real instructions (as opposed to making a theoretical declaration).

As was pointed out at the time, this was quite the climbdown, since it opened the door to barristers signalling what kind of work they will not undertake. If enough of them can be persuaded now to sign the declaration, it will become increasingly difficult to find those who are willing to prosecute peaceful protestors (of course, there will always be barristers eager for such work).

The second existential event was the invasion of Ukraine by Russia. That led to obloquy for both branches of the legal profession on account of acting for oligarchs whose fortunes were obtained through theft and violence. Parliamentarians and newspapers railed against us, with much of the focus on SLAPPs (the defamation and other lawsuits brought by oligarchs to silence critics through intimidation and bankruptcy).

The Chair of the Bar in his letter to The Times opened with the question: ‘Should lawyers decline to act for a client on the grounds that the client is morally reprehensible or probably guilty of an offence? 

But that is to miss the point, because it assumes the cab rank rule’s focus on the client’s identity and circumstances.

In the debate which followed the two existential events, the point was not about acting for morally reprehensible clients. The question concerned the action the client wanted to take (damage the climate, silence civil society), not the personality or circumstances of the client. And no-one has ever said that any of this applies to the defence of those accused of a crime, who are entitled to representation under the European Convention on Human Rights.

The Bar has an acknowledged ‘role in upholding access to justice and the rule of law’, which appears in guidance on non-discrimination (gC88). It is not a surprise, therefore, that there has been powerful opposition within the bar itself to the usefulness of the cab-rank rule in providing access to justice.

Critics point to the exemptions all being within the gift of the barrister, making a refusal difficult to penetrate.

And they also highlight that market forces favour the more powerful in society. For instance, a top barrister might wish to put their expertise at the disposal of victims of a great corporation’s wrongdoing, yet is usually snapped up early by the great corporation instead, leaving the late-coming, less informed victims to inferior representation.

There is already protection against discrimination in the Bar’s rules (rC28). There is no need for further protection in respect of the identity or circumstances of the client. Rather there should be more focus on what kind of action the client wishes to undertake, with the bar’s ‘role in upholding access to justice and the rule of law’ at the centre of considerations.

The LSB says: ‘Anecdotal evidence would suggest that it is a relatively straightforward matter for a barrister who does not wish to represent a particular client for any particular reason to avoid doing so by invoking one or more of the exemptions.’

I’m a solicitor, but I say: get rid of the cab-rank rule altogether.

Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society