A pledge by a group of barristers not to work on cases they say would worsen the climate crisis has sparked a national debate over the merits of the England and Wales Bar's longstanding ‘cab-rank’ rule.

On Wednesday (29 March), a group calling itself Lawyers are Responsible will proclaim a ‘declaration of conscience’ outside London's High Court to not act for new fossil fuel projects or take action against those who protest peacefully to try to stop them. 

Noting that climate breakdown poses “a serious risk to the rule of law”, the declaration calls on legal professionals “to act urgently to do whatever they can to address the causes and consequences of the climate and ecological crises and to advance a just transition”.

Debate over the declaration, which was unveiled last week and has the support of 120 barristers, solicitors and academics, has focused on the implications for the 20 barristers who have signed the declaration, including six King’s Counsel, given their professional requirement as set out in their code of conduct to take on cases for which they are qualified if they are available; the so-called ‘cab-rank’ rule. 

Some of this grouping have self-referred themselves to the Bar Standards Board, which oversees professional conduct and must now decide whether to take action against the background of a strong reaffirmation of the rule by the Bar Council's chairman, Nick Vineall KC.

In the wake of the media coverage of the declaration, which kicked off last Thursday with a Daily Mail front page story, Vineall released a statement arguing that the cab-rank rule “promotes access to justice and promotes the rule of law”, adding: "It is disappointing that some lawyers apparently wish to remove these rights from people of whom they disapprove.   
 
"I would be profoundly unhappy if a climate change activist accused of a public order offence were ever to be precluded from obtaining the services of the barrister of their choice because their chosen barrister happened to disapprove of the particular way in which they had been protesting.”

Mary Prior KC, a leading criminal silk at 36 Crime, weighed in on Twitter: “Barristers who put their name to a letter that they will not prosecute certain activists would be worth listening to if only they actually prosecuted any cases. Many of them don’t have the experience to do so and others have always refused to prosecute anyone.”

Lawyers are Responsible, however, is calling for a debate over the merits of the rule, which it argues gives rise to a potential conflict “between what individual barristers’ consciences tell them is the right course of action and the rules of their profession”.

The “classic example” of the cab-rank rule in action is of a criminal barrister who accepts a brief to represent a person accused of murder against whom there is strong evidence of guilt, it said in a statement.

“In that situation, there is no conflict between the cab-rank rule and the interests of justice. The barrister is agreeing to perform his or her role within a system of justice that produces, on the whole, just outcomes. By representing the accused, the barrister is merely helping to ensure that there is a fair trial and is serving the greater good.

“The signatories to the declaration are convinced that at the present time offering their services in support of new fossil fuel projects or action against peaceful climate protesters would not serve the greater good.”

Jolyon Maugham KC, founder of the Good Law Project, which has coordinated the declaration along with climate group Plan B, wrote in the Guardian that while the cab-rank rule represents a “beautiful idea”, it “is often used by those whose professional lives demonstrate no interest in access to justice, to shield barristers from criticism for self-interested decisions to act for wealthy rogues”.

In his blog, Richard Moorhead, professor of law and professional ethics at Exeter University, characterises the debate as between the "many at the Bar" who regard the group's actions as "professional vandalism" and others who acknowledge that the rule is a “Shibboleth, riddled with exceptions” that is "sometimes (often?) honoured in the breach".

He points out that solicitors in England and Wales and US attorneys are not governed by such a rule, and concludes: “I am not convinced that the rule of law demands they withdraw their services, as they seem to be arguing, but I do believe their rights to freedom of expression, and to conscientious objection, are stronger arguments than the cab-rank rule as it currently stands. 

"Lawyers should take some responsibility for who they act for and what they do for them, not least because the potential for lawyers to be complicit in wrongdoing can be substantial (look at tobacco as an example) and is masked by the superficial gleam of the cab rank’s neutrality and non-accountability.”