The cab rank rule is a bedrock obligation

A statement from the Chair of the Bar Nick Vineall KC

Some elements of the tabloid press have recently been stirring up trouble by misreporting the Bar Council’s position on the cab rank rule. So let me again state what it is, recognising that in any particular case the interpretation and application of the rules would be a matter for the BSB to whom we are required by the Legal Services Act to delegate the task of professional discipline.

The cab rank rule is here to stay. It is a bedrock obligation for us as a profession – the barristers’ equivalent of the doctors’ Hippocratic oath. The rules require that we do not discriminate between clients and if we are offered a case, which we are competent to do and available to take, we must take it. I do not accept the notion that the rule is honoured more in the breach than the observance, but if it were the case that some people breach the rule that would be an argument for disciplining them, not an argument for changing the rule. I have always complied with the rule, and I think I am in the company of the overwhelming majority of the profession in taking that approach.

The rule promotes access to justice. People with unpopular causes (who might after all turn out to be right) or accused of ghastly offences (which they might not in fact have committed) have enough problems already, without having first to persuade a barrister to take them on.

Some barristers who are climate change activists have said that they will decline to prosecute protesters charged with public order offences. Were they to be offered such a brief and to decline it, they would be on very shaky ground indeed. They now say that they support the cab rank rule but that their conscience would not permit them to take such a case. That overlooks the critical point that by representing someone you are not saying that you agree with them.

That is why there is no get-out from the cab rank rule along the lines of conscientious objection – there is simply no need for such a widely-drawn get out.

It is just about conceivable that a barrister might be able to say that they felt so strongly about climate change issues that they were unable to act in a climate change-related case (civil or criminal) because they were unable to meet the requirement (Rule 21.10) that they maintain independence.  

But such a person would not, of course, be able to act on either side. If you are genuinely incapable of acting with independence when (say) defending someone charged with hate speech, you wouldn’t be sufficiently independent to prosecute either. Similarly, if you were to so lack independence that you could not properly prosecute a climate change activist, you would be incapable of defending a climate change activist with sufficient independence either.

There is no intrinsic tension between the cab rank rule and the many members of the Bar who are profoundly concerned about climate change. And I hope we can move the debate on to talk about the many issues which impede access to effective and timely justice, including the availability of legal aid and tackling the long delays in the Crown Courts and family courts.