Kapil Summan: Rank hypocrisy

Kapil Summan: Rank hypocrisy

Barristers and advocates appeal to the cab-rank rule whenever the UK government complains that they are a left-wing nuisance. They are professionally bound to represent their clients, they say, and are agnostic as to the moral content of their cases.

A group called Lawyers Are Responsible, for whom this principle apparently only holds so long as it coincides with their personal beliefs, have now very publicly abandoned it.

In its declaration, signed by barristers, solicitors and other legal professionals, the group makes two key points:

“WE DECLARE, IN ACCORDANCE WITH OUR CONSCIENCES, THAT WE WILL WITHHOLD OUR SERVICES IN RESPECT OF: (i) supporting new fossil fuel projects; and (ii) action against climate protesters exercising their democratic right of peaceful protest.”

Appearing on Newsnight, one of the barrister signatories, Jodie Blackstock of Garden Court Chambers, said the declaration “isn’t about us breaching the cab-rank rule”.

She added: “The cab-rank rule requires us not to refuse instructions when they come to us. These aren’t instructions that I have had. The declaration is about us expressing in good conscience what we will draw a line on actually taking in the future.”

It is trivially true that by not having a practice that consists of supporting new fossil fuel projects or prosecuting climate protesters you are not contributing to either. But, by this logic, nor am I as I do not have such a practice because I am not a barrister. It is bizarre to proclaim your non-contribution to the results of something you do not do. On this view the declaration amounts to nothing, which is a sure sign that in our culture it will be treated as something.

Others, however, do suggest they will violate the cab-rank rule and explain why this is necessary. Writing in The Guardian, Jolyon Maugham KC, another signatory, stated: “The cab rank rule is bound up, inseparably, with the idea that the law is right and its ends are worth upholding. But the law is not always right. Sometimes the law does not reflect the democratic preferences of the people. Sometimes the law is ugly and sometimes it is wrong. Sometimes it evidences the pernicious influence of money on politics. Sometimes the law is the victory dance of power.”

It is indisputably true that “the law is not always right”, but our system has mechanisms for addressing this, including a contest of arms in the courtroom that shapes and sharpens the law. It is, as Marcel Berlins and Clare Dyer describe it in their popular book of the same name, a “law machine”, with each part having a particular function. It is not the prerogative of one part to usurp the function of another, especially when doing so draws more attention to those involved than to their cause.

The point is well made in this tweet from 2017, by – you could not make it up – Jolyon Maugham himself:

Kapil Summan: Rank hypocrisy

I agree.

Implicit in his tweet is an understanding of the law machine and the imperative of protecting it. But in the intervening six years something has, as we all know, gone wrong in our society and has led us to a present in which breaking the cab-rank rule is weighed earnestly, without any regard for the second order effects of doing so.

It is not difficult, for example, to see how refusing to act in some cases could pave the way for counsel to refuse to act in any that figure in their moral crusade, such as sexual ones. In a system in which the doublethink of calling complainants ‘victims’ is now orthodoxy and in which taboo has descended upon the law of evidence for fear of incurring the wrath of the mob, it is a hop, skip and a jump to declining to act for those whom self-proclaimed progressives would prefer, à la Roman law, enjoyed only partial rights.

If lawyers refusing cases – and not, say, physics and engineering – was somehow instrumental in reversing climate change we could take this declaration seriously. As it stands, it is just a testament to the fact that wigs and gowns are not enough to assuage the frustrated acting aspirations of everyone at the bar.

Kapil Summan is the editor of Scottish Legal News

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