Earlier this year, a campaign called Lawyers are Responsible emerged as legal professionals sought to respond to the existential threat of the climate crisis. The campaign published a declaration to the effect that its signatories would refuse to act to support new fossil fuel projects or against climate protesters exercising their democratic right to peaceful protest.

The reaction of the legal establishment was almost universally hostile and centred around a potential breach of the cab rank rule for counsel. The rule, which is at rules C29 and C30 of the BSB Handbook (version 4.7, Bar Standards Board, 20 September 2023), sets out that if a barrister receives instructions from a professional client and they are appropriately experienced to deal with the instructions, then they must accept those instructions. This is regardless of whether the case is being paid privately or it is publicly funded, the identity of the client and the nature of the instructions, and any opinion they hold of the client. There are a large number of exemptions set out in the rules.

The rule derives its name from the tradition by which a hackney carriage driver at the head of a queue of taxis is obliged to take the first passenger requesting a ride. It appears to have become a touchstone issue for much of the bar, with justifications ranging from it promotes access to justice to it avoids a lawyer being identified with the client’s acts or cause. On 26 May 2023, the leadership of the Four Bars (England and Wales, Northern Ireland, Ireland, and Scotland) proclaimed the sanctity of the cab rank rule.1‘Cab rank rule: statement of the Four Bars’, The Bar Council, 26 May 2023.

There have been moments in our history when lawyers have failed to live up to their promise to promote access to justice. Notably, in 1974, The Bar Council had to appeal for assistance from QCs to defend IRA bombers because there were no original takers for the briefs2Julian Disney et al, Lawyers, second edition, The Law Book Company Ltd, 1986. – a frankly shameful period of the English bar. However, would that happen now? No other case appears to have attracted such opprobrium since. Indeed, the nature of the legal profession has changed considerably and research has shown that the opposite has happened: the worse the client, the 'more attractive and desirable' they are for many lawyers.3John Flood and Morten Hviid, The cab rank rule: its meaning and purpose in the new legal services market, Legal Services Board, 2013, page 31. Barristers and lawyers would queue ‘around the block’ to represent the latest notorious case.4Ibid, page 31.

That people could proclaim the cab rank rule as the pillar upholding access to justice is nonsense, a deflection of the highest order. Using the taxi analogy, the truth is that there are no cabs left at the rank and there are no black cabs to hail down. We are reduced to Uber apps or minicabs whose drivers can pick and choose their passengers. Some of those cabs are good and know where they are going, but they are booked for ages in advance. Often, you are left to find some alternative transport.

You get where I am going with this comparison. The crisis in representation has not been alleviated, despite some modest legal aid rate increases. Many counsel are booked for months in advance and there is simply not the capacity in the system. The issue with representation on difficult cases is not the nature of the client, but the nature of the payment. Never until this year have I heard counsel explicitly say that, for the amount of work they would do on a particular case, they could not do it on legal aid. That is the reality of what is going on behind the proclamations of principle. If only the legal establishment as a whole would unite and take action about that, then I could take more seriously an access to justice argument.

The argument that it protects barristers from over-identification with unpopular clients has some limited merit. However, para 18 of the UN Basic Principles on the Role of Lawyers, (7 September 1990) states: ‘Lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions.’ This protects all advocates including solicitor-advocates, rather than the cab rank rule, which only applies to the independent bar. Moreover, the real threat again comes from a government that sees nothing wrong with attacking lawyers who defend clients that it doesn’t like – and indeed goes as far as compiling dossiers on those lawyers.5Charlie Moloney, ‘Academics call on Braverman to end lawyer attacks’, Law Society Gazette, 7 September 2023.

In short, folks, worry about other stuff. Not about a rule that does not appear to be a rule, or appears never to be enforced,6Flood and Hviid make these arguments about the rule not being a rule and never being enforced throughout their analysis referred to at note 3, below (see, for example, page 2). or is routinely bypassed because ‘counsel are busy’. Not about a rule where all of us in the know accept that there are some chambers that are known for different types of work, that some counsel rarely accept legal aid briefs, and that some lawyers are known for their campaigning work.

Worry about other stuff, like the crisis in our criminal justice system, the lack of people who want to be criminal solicitors or barristers, and, yes, worry about the climate crisis.