The cab-rank rule – the principle that barristers cannot refuse instructions from a client they find unpalatable – is held close to the hearts of most barristers. For many, it represents an important pillar of the justice system in England and Wales. However, a recent pledge by over 120 lawyers not to prosecute climate activists nor to provide legal services to fossil fuel companies has challenged this view. In response to the declaration, the Bar Standards Board published a statement stating that the rule “is designed to ensure that everyone can have access to legal advice”. Lord Wolfson, Conservative peer in the House of Lords, tweeted that “a right to representation […]” under the rule should not be “sacrificed” for these ends.
This position – that the rule ensures access to justice and a right to representation in English law – forms the crux of the argument against challenging the cab-rank rule: refusing to take instructions on a matter of conscience may impact the ability of those deemed ‘unacceptable’ to society to secure representation. Those guilty of the most shocking crimes may be left unrepresented, as happenedin the 1970s when the perpetrators of IRA attacks in Britain struggled to secure defence counsel. In this instance,the cab-rank rule was invoked by the Bar to remind its members of their professional duties to accept instructions, even if they found the case to be distasteful.
The rule is thought to have originated from eighteenth-century barrister, Thomas Erskine, and his defence of Thomas Paine, an English-born American philosopher, political theorist, and revolutionary known for his contribution to Enlightenment-era thought. In 1791, Paine published ‘The Rights of Man’, which argued for the right of a population to remove its government. Fearing the spread of the French Revolution to Britain, William Pitt the Younger’s government cracked down on any social ideas it found threatening, including Paine’s book. While Paine had fled to France to escape prosecution and imprisonment, he was charged in his absence withseditious libel. Erskine – despite warnings from his friends that he would face severe personal cost for doing so – agreed to represent Paine in his case, saying that “from the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practise, from that moment the liberties of England are at an end.”
What is often omitted, however, isthat Erskine was close to the leader of the Whig Party, James Charles Fox – who is thought to have had sympathies for the French revolutionaries – and indeed was himself a member of parliament for the Whigs.Moreover, Erskine wasone of the highest paid barristers in history, earning £10,000 in 1791, the equivalent of almost two million pounds today. These kinds of earnings enabled him to represent radicals for free as and when his conscience permitted him.
It remains true that barristers have the option of acting under conscience in limited circumstances. There are exemptions to the cab-rank rule where the barrister can refuse instructions if certain conditions are met. One of these is when the client is not offering a proper fee. Many barristers choose to accept pro bono cases, for a variety of reasons, including that they are supportive of or sympatheticto the cause it represents.
According to the Barristers’ Working Lives’ Survey 2021, approximately 43 per cent of barristers provide some legal services pro bono. The survey shows that 29 per cent of all respondents had provided five or less days of pro bono work in the last 12 months; nine per cent had provided between six and 10; and six per cent had provided more than 10 days. If the number of days committed in the last twelve months were totalled and divided by the number of working days in a year, the pro bono work completed by barristers equates to approximately 38 full-time barristers – approximately 0.2 per cent of the practising profession. While a hugely important part of the work of many barristers, it therefore does not represent a significant part of the Bar’s work as a whole.
It is unrealistic to expect barristers to be able to commit huge swathes of their time to pro bono work that may square with their own personal interests and beliefs. Indeed, according to the survey, the most commonly identified challenge associated with doing pro bono work was finding the time alongside paid work commitments. Many also stated that they felt that pro bono work subsidised the government’s lack of investment in the system.
The cab-rank rule therefore guarantees access to justice and the right to representation – if you can pay for it, or someone who can afford to represent you for free deems your cause worthy. And the Bar’s work is unsurprisingly and understandably skewed heavily towards those who can. Barristers, after all, need to make a living. But the link between access to justice and the cab-rank rule appears very weak when considering the number of unrepresented defendants who pass through the courts system each year. There is a lack of clear statistics about how many people lack representation during trials each year, but there are estimates that highlight the scale of the problem. The Centre for Public Data said that estimates for unrepresented defendants in the magistrates’ courts range from 13-30 per cent.In the Ministry of Justice’s most recent quarterly statistics for the family courts, the proportion of cases where both parties had legal representation was down to 18 per cent(for the period of July to September 2022). This lack of representation exists despite the existence of the cab-rank rule. It is difficult to see that the amendment or removal of the cab-rank rule would in itself result in anywhere near the hole that is left by underfunding.
There is clearly a problem, therefore, with claiming that removing the cab-rank rule impedes access to justice. Many may legitimately respond: what access to justice?
Not only is access to justice heavily skewed towards those who are able to pay, but the structure of the Bar itself is skewed towards those clients and industries who are most likely to be able to pay– and pay a lot. According to Chambers and Partners – a legal professional research company which produces rankings of firms, chambers, and lawyers – there are eight sets of chambers and 19 silks in the London Bar who specialise in community care, i.e., the law around provision of adult and child social services, and the provision of housing. This area of law often involves clients who may not have the means to pay the kinds of fees charged by most barristers. It is also an area that is barely covered by legal aid. Conversely, there are ten sets, and 74 silks working in energy and natural resources, the area that will include representation of fossil fuel companies (though it should be noted that this does include clients who are focusing on the development of renewable energy resources).
It is certainly not the case that there is lower demand outside of the fossil fuel industry for representation by members of the Bar. The Legal Services Board ran a survey on unmet legal need in England and Wales in 2020, which found that six in ten adults had experienced a legal problem in the last four years, and five in ten had experienced a contentious one. Of those, 31 per cent did not get help, wanted more help than they were able to receive, or their issue took longer than two years to resolve. This means that approximately one in seven adults surveyed had a contentious problem that they did not receive sufficient or any professional legal support in the last four years. It is difficult to see that this could ever be the case for a fossil fuel company seeking legal services.
The cab-rank rule may work perfectly in a world where individuals, communities, and charities have equal access to legal services. But we don’t live in that world.
There is also a lot more money available in certain practice areas than others. The ten chambers listed by Chambers and Partners as operating in the energy and natural resources space all offer pupillage awards of £70,000 or more. This dwarfs the average for criminal and family pupillages, which was in the band of £20,000-£29,999 in 2022, according to the Pupillage Gateway Report 2022. These high awards are likely to be funded in part by the proceeds of the fossil fuel industry, given from where those chambers’ revenue is coming.
Certainly, the cab-rank rule should not be used as a simplistic defence for the ethics of representing fossil fuel interests – after all, despite the idea being sound in principle,in the real world, barristers are not typically instructed at random. At least one of the factors that may go into a decision to pursue one area of law over another will be the potential earnings (hence the competitiveness of some of the best-paid pupillages).
Perhaps, then, it is legitimate to challenge the argument that the cab-rank rule represents an inviolable commitment to access to justice. As the example of the IRA in the 1970s suggests, it is difficult to see how criminal cases, where liberty is at stake, should ever be at risk of failing to secure legal representation. Conversely, perhaps there should be room for barristers who feel expressly unable to represent a fossil fuel company that is seeking to challenge an unsuccessful planning application for a new oil rig.
Perhaps there is the risk of too many unintended consequences to support a change to the rules as they currently stand. But at the very least, all these issues are worthy of a public discussion. No one should think badly of the Bar for being brave enough to engage in such as discussion, rather than attempting to discourage those who some might argue, are as legitimate in their impassioned defence of individual liberties as Erskine was two centuries ago.