Is it time to re-assess the cab rank rule?
Patrick O'Connor K.C. for Counsel Magazine, July, 2023.
In March, 2023, many lawyers, including 18 barristers, signed a 'declaration' that they will not prosecute climate-change activists or act for those promoting new fossil fuel projects. Is the 'cab rank rule' [Code rC28 -29] under threat?
Commentary has been almost uniformly critical, emotively defending 'the cab rank rule' [the 'Rule'] in curious terms. The Chair of the Bar declared: "It is for judges and juries to decide who is right and who is wrong, not barristers." [sic]. The BSB suggested that the 'Rule' ".. is designed to ensure that everyone has access to legal advice."[sic]. The conventional, more measured, response asserts that the 'Rule' promotes 'access to justice'. The BSB in its 2015 consultation, [para. 17], conceded that it should apply only where necessary to ensure "the public interest benefits...." Emotion has impeded a closer investigation of any such benefit. Without that, and purely as a symbol of the moral image of the Bar, the 'Rule' faces an uncertain future.
This recent controversy highlights the disconnect between symbol and substance. Where is the connection with 'access to justice'? The signatory barristers are posturing, for the purpose of raising a debate, since realistically they would never be instructed to prosecute in such cases. Their critics are posturing because prosecution authorities and energy corporations will never go unrepresented.
The connection between 'access to justice' and the availability of counsel was made in the foundation text for the 'Rule.' The great Thomas Erskine defending Tom Paine stated: "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. If the advocate refuses to defend, from what he may think of the charge or of the defence, he assumes the character of the Judge:......” " [State Trials: 18.12.1792.]
So, in a [serious] criminal case, representation must be available for the accused. Admirably today, the large majority of suitable barristers would themselves, if necessary, defend the 'worst of the worst' before the criminal courts. This is a noble mission for the legal profession, especially if expanded to include other proceedings which affect liberty, such as extradition or contempt of court. We must overlook a blemish upon this history. In 1946, the Bar Council strongly discouraged English barristers from defending any of the Nazi accused in the Nuremberg trials. [Hansard: 19.11.45. Col. 198.]
Beyond 'liberty' cases, can the 'cab rank' rule be shown significantly to further the public interest in 'access to justice'? There are three problems over such a suggestion: the limitations of the 'Rule' itself: the gross limitations on access to justice, currently built into our system: and the reinforcement by 'the Rule' of unequal access to justice.
Firstly, the severe limitations upon 'the Rule' inevitably limit its potential impact. Solicitors do not operate any 'cab rank' rule. So the primary route by which counsel are instructed, can be shut off by precisely the considerations forbidden to barristers. Ironically this April, the Law Society advised its members that 'climate related' issues may properly be relevant when choosing clients. In response to public concerns, many of the largest City firms have announced that they are limiting or reviewing their work for certain, especially Russian, clients. There seems to have been no significant controversy about this.
Solicitors can be bypassed by 'direct access' instructions to a barrister, in narrowly defined cases. However, the 'Rule' does not apply there either: [Code rC 29]. In civil litigation, the 'rule' does not apply to any instructions where payment would be under ‘a conditional fee agreement or damages based agreement’: Code gC 91. Most civil litigation for poorer clients has to be funded in this way, in the absence of legal aid. The obligation is also conditional upon an 'adequate' private or legal fee being offered. This 'Rule' does not benefit civil litigants who are most in need. It therefore does little more than protect access to justice for those whose access is never at risk.
The Bar 'Rule' does not apply to 'foreign work.' Confusingly, those who stridently defend the 'rule', often also diminish its practical significance, because it is so easily evaded. If a clerk says a barrister is too busy, it is very difficult to go behind that answer. This argument points rather towards symbol than substance. Only those who state a prohibited reason for refusing to act are at all likely to be sanctioned.
Secondly, successive governments have actively restricted access to justice, to an extent which the Bar cannot possibly remedy. These steps have included shutting down courts, and causing or permitting delays to criminal trials, such that victims withdraw and no trial ever takes place. Legal aid has been restricted or excluded from many areas of litigation, such as family and social welfare law. 'Deserts' have emerged, devoid of solicitors for certain kinds of work. Regulatory enforcement for the City and the environment has collapsed. Attempts have been made to restrict the availability of 'judicial review' and to impose unaffordable fees for starting proceedings in the Employment Tribunals. The 'rule' can have no practical impact upon this crisis. [see further 'The Commons Today', Rose Malleson, 9.4.23.]
In ways which have nothing to do with the 'cab rank' rule, the Bar does what it can to mitigate this problem for the vulnerable and disadvantaged. The Bar's pro bono charity 'Advocate' handled over 6,000 requests for help in 2022, providing advice and representation. Admirably, many individual barristers have anyway acted pro bono, in such cases. This is of great significance at a time of burgeoning state and corporate power, gross financial inequality and deep cuts to the public funding of legal services. It is disturbing that fully funded legal teams still appear for public or private institutions against otherwise unrepresented individuals, such as the bereaved at inquests.
Thirdly, the 'rule' positively reinforces inequality in 'access to justice'. This is held to be a constitutional right and fundamental to the rule of law: Unison v Lord Chancellor  UKSC 51 at paras. 66- 85. The Supreme Court there found it necessary to deliver a basic lecture to the Ministry of Justice on why this is not just a 'public service' like any other: and certainly not a mere private activity, governed by pure market forces.
Yet this 'Rule' entrenches the distortions of the market, with its insistence upon 'first come- first served' for instructing counsel. The 'rule' positively entrenches privileged access to counsel in non-criminal cases. Itrests upon a complacent fiction of 'equality of opportunity' to instruct barristers. Typical of this is the assertion of the BSB: "The effect of the cab rank rule is that .... all clients have equal access to the Bar, each having a full range of choice of any advocate...whatever the nature of his or her case.." [2015 Consultation, para. 9] . The 'Rule' treats the rich and the poor, the powerful and the vulnerable equally: and assumes that 'fairness' is the outcome. Such apparent neutrality is beguiling but, when addressing gross inequality, cannot possibly promote 'access to justice'.The 'Rule' is the handmaid of the very 'market forces' which create inequality of 'access to justice.'
Who currently has the resources to instruct counsel first, and how is it done? Consider the immediate aftermath of the Grenfell disaster. All public and corporate bodies, potentially implicated, become 'lawyered up' within weeks. They have in-house lawyers, legal expenses insurance policies, external solicitors and immediate access to all relevant documentation in their custody. They compete to instruct the best barristers quickly, offering generous fees.
Meanwhile, where are the bereaved and traumatised victims? They often have no resources and no knowledge of the legal system. Perhaps at some stage, they might meet a volunteer from an under-funded local law centre or the expert charity 'Inquest'. Eventually, they might begin to receive preliminary advice, often pro bono, from solicitors about where any legal process may take them. As for public funding, after Grenfell, this was first paid 12 months after the disaster. So much for 'equality of opportunity'.
Now consider a barrister's duty. She has a perfectly proper commitment to social justice, experience of the specialised needs of such clients, and, for example, of how to overcome obstructive institutional tactics on disclosure of documents? She is widely respected, and fully expects to be instructed on their behalf eventually.
However, one of the implicated companies promptly calculates the 'optics' of instructing her with her 'image' and talent. Is she really bound to accept instructions to act for them, on the simple basis that they ask first? Their chance has only arisen from gross inequality of opportunity. Her refusal would not obstruct their access to justice, with their wide choice of competent counsel. What is more, she would be excluded from representing those who need her most. Such a refusal, often involving financial sacrifice, should be celebrated as promoting access to justice. Professional sanctions under the 'Rule' for doing so, would be absurd. At the very least, there is a 'reasonable excuse' for her conduct. Whether Code gC 88 provides a justification ["...duty not to act inconsistently "... with your role in upholding access to justice and the rule of law."] is left entirely unresolved.
One point in favour of the 'rule' is better made. It protects barristers from opprobrium in unpopular cases, since they act out of professional duty, not out of choice. This is expressed in para. 18 of the U.N. Basic Principles on the Role of Lawyers, 1990: “Lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions.” However, this important principle protects all lawyers whether under the 'cab rank rule' or not, and takes its place. Perhaps we are blessed, but there seems to be a broad public understanding that a sense of professional obligation normally motivates representation. Criticism for choice of client, is very rare, with the exception of certain cynical politicians. The 'Rule' cannot be justified on this ground.
I suggest that 'the Rule' is kept for cases involving 'personal liberty'. This represents the historical root of 'the rule', and both the 'public interest' and symbolic value of the Bar's commitment is high. In my view, the 'public interest' necessary to justify the rule in civil cases cannot now be demonstrated for the three reasons I have explained: not least its discriminatory impact. A 'principle', rather than a rule of professional conduct, would be sufficient. Indeed, the existing rule against 'discrimination' protects against most improper rejections of clients: [Rule rC12].
Finally, let us take literally the chosen parallel with a taxi driver, approaching a passenger queue. A disabled man in a wheel-chair is several places back. The driver has much experience with such passengers and her cab is adapted for easier access. The earlier in the queue are bound to be taken by other cabs. Any ‘rule’ obliging her to take the first person, or risk sanction or even criticism, would be regarded as absurd. She has a 'reasonable excuse' within the taxi rules. The chosen metaphor fails. Let us call it the more transparent and revealing 'first come, first served' Rule.
Patrick O'Connor K.C.
Associate, Doughty Street Chambers.