No deal

Laura Hoyano provides a refresher on the barrister’s rule of independence in response to the Home Secretary’s proffered ‘deal’ to human rights lawyers

Home Secretary Theresa May has been vocal over recent months on immigration and human rights laws, most recently arguing in April that Britain should leave the European Convention on Human Rights. 

In this article, however, I want to draw readers’ attention to her speech to last year’s Conservative Conference, in which she stated:

What I’m proposing is a deal: the fewer people there are who wrongly claim asylum in Britain, the more generous we can be in helping the most vulnerable people in the world’s most dangerous places. And my message to the immigration campaigners and human rights lawyers is this: you can play your part in making this happen – or you can try to frustrate it. But if you choose to frustrate it, you will have to live with the knowledge that you are depriving people in genuine need of the sanctuary our country can offer. There are people who need our help, and there are people who are abusing our goodwill – and I know whose side I’m on.’ (6 October 2015, emphasis added, see full speech here)

This was preceded by the statement: ‘[m]ore than half of all asylum claims fail, and three quarters of people denied asylum appeal their decision in the court’.

I am responding to the Home Secretary’s proffered ‘deal’ only in respect of barristers, because they function under an ethical framework peculiar to the Bar. (It does not apply to solicitor advocates: HHJ Geoffrey Rivlin, Criminal Justice, Advocacy and the Bar, Criminal Justice Reform Group, March 2015 (the ‘Rivlin Report’), para 1.30, 6.16) It is important to note, however, that the criticism of human rights solicitors is equally unmeritorious.

No sides

While this was a political speech which could be dismissed as party conference grandstanding, the italicised sentences seem to contain five implicit assumptions which are important to address:

  • that barristers are free to pick and choose the clients whom they represent;
  • that barristers are rightly to be identified with the clients whom they represent;
  • that barristers are ethically at liberty to enter into ‘deals’ with the government of the day which would impede their independence;
  • that barristers adjudicate the merits of cases, not the independent courts, and so should act as a preliminary filter of decision-making as to whether a client is a ‘genuine’ asylum seeker; and
  • that the Bar, by presenting any and all cases to the courts for their adjudication on their merits, does not play a role in maintenance of the rule of law.

Such assumptions betray an ignorance of the ‘cab rank rule’, as it is colloquially known, which governs practice at the Bar, and of the Bar as a staunchly independent profession and essential actor in ensuring the observance of the rule of law.

Defining characteristic

The cab rank rule has been embedded in the British administration of justice since at least 1649, with the courageous acceptance of the brief to prosecute Charles I by John Cook, when all other barristers had fled the Inns of Court to escape being instructed. He paid for his ethical stance by being beheaded as a regicide after the Restoration. HHJ Geoffrey Rivlin QC described the cab rank rule as ‘a defining characteristic of the criminal Bar for well over two centuries’ in his review of criminal advocacy, but it applies to barristers in civil practice as well (Rivlin Report, para 1.30).

Its modern restatement, as a professional rule of conduct (and hence as subject to disciplinary sanctions), appears in the Code of Conduct published by the Bar Standards Board (BSB) in 2015. Rule C29 requires a self-employed barrister to accept instructions from a professional client which are appropriate to that barrister’s experience, seniority and field of practice, ‘irrespective of:

  1. the identity of the client;
  2. the nature of the case to which the instructions relate;
  3. whether the client is privately or publicly funded; and
  4. any belief or opinion which [the barrister] may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client.’

(There are specific exceptions to the cab rank rule in the Bar Code of Conduct which are not relevant to this issue.)

Cab rank criticism: a recap

The cab rank rule came under severe criticism a few years ago in a study commissioned by the Legal Standards Board (LSB). The research, carried out by academics John Flood and Morten Hviid (The Cab Rank Rule: Its Meaning and Purpose in the New Legal Services Market – Report for the Legal Services Board, 2013), was described by the Bar Council as ‘disturbingly expensive’ – a freedom of information request revealed the cost at £21,367. The study’s very limited fieldwork (a total of merely 15 interviews of regulators, government officials, barristers, solicitors and barrister’s clerks, with no breakdown of numbers) and insecure conclusions were convincingly dismantled by Sir Sydney Kentridge QC for the Bar Council (The Cab Rank Rule: a Response to the Report Commissioned by the Legal Services Board, March 2013) and by three barristers in civil practice from Fountain Court Chambers for the Bar Standards Board (Michael McLaren QC, Craig Ulyatt and Christopher Knowles, The ‘Cab Rank Rule’: a Fresh View). Both ripostes were prepared pro bono publico in the truest sense. I would do them injustice by attempting to summarise them. What I seek to do here is to explain how the Home Secretary’s comments on the role of barristers in the administration of justice are invidious.

Core duty

The cab rank rule is based upon a far more fundamental principle than the LSB’s ‘economic, analytical-sociolegal’ (sic) study was capable of discerning: professional independence in the service of justice. Independence is intrinsic to the ethos and role of the Bar. The BSB’s Code of Conduct specifically designates as a ‘Core Duty’ number (4): ‘the maintenance of a barrister’s independence’. Rule C3 states that a barrister must ensure that his or her ability to act independently is not compromised, as part of the barrister’s paramount duty to the court to act in the interests of justice. This enables a barrister to be a bulwark of the integrity of the administration of justice, by not being identified as partial to any side in the dispute.

As Lord Hoffmann stated in Arthur J S Hall & Co (A Firm) v Simons [2000] UKHL 38, [2002] 1 AC 615 at 686: 

‘It is a valuable professional ethic of the English Bar that a barrister may not refuse to act for a client on the ground that he disapproves of him or his case. Every barrister not otherwise engaged is available for hire by any client willing and able to pay the appropriate fee. This rule protects barristers against being criticised for giving their services to a client with a bad reputation and enables unpopular causes to obtain representation in court.’

Lord Hobhouse stated in Arthur Hall that the duty of the independent Bar to act for any client, so that no one should be left without representation, meant that ‘even the most unpopular and antisocial are entitled to legal representation and to the protection of proper legal procedures’ [739-740]. His Lordship went on to note that the common law rule, confirmed by the European Convention on Human Rights:

‘… is also vital to the independence of the advocate since it negates the identification of the advocate with the cause of his client and therefore assists to provide him with protection against governmental or popular victimisation. The principle is important and should not be devalued.’ [Arthur Hall, emphasis added]

So important is the rule that barristers on the Treasury Solicitor’s panels of counsel are actively encouraged by Government Legal Services to act against the government, as then they will be better prepared to act for the government (guidance last updated 24 February 2016). The ability and willingness of the barrister to present any side of a case is necessary to a just outcome.

Advocate, not adjudicator

The Home Secretary also does not seem to understand the basic point that a barrister is an advocate, not an adjudicator. In 1792 Thomas Erskine described to the jury his duty to defend Thomas Paine, in the face of public opprobrium for so doing, in the following words: 

‘I will forever, at all hazards, assert the dignity, independence and integrity of the English Bar, without which impartial justice, the most valuable part of the English constitution, can have no existence. From the moment that any advocate can be permitted to say that he will not stand between the Crown and the subject arraigned in the court where he daily sits to practice, 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 the defence, he assumes the character of the judge; nay he assumes it before the hour of judgment.’ (R v Paine (1792) 22 State Trials 357 at 412, emphasis added.)

In 1967 in Rondel v Worsley, Lord Pearce in the House of Lords made this sage observation: 

‘It is easier, pleasanter and more advantageous professionally for barristers to advise, represent or defend those who are decent and reasonable and likely to succeed in their action or their defence than those who are unpleasant, unreasonable, disreputable, and have an apparently hopeless case. Yet it would be tragic if our legal system came to provide no reputable defenders, representatives or advisers for the latter. And that would be the inevitable result of allowing barristers to pick and choose their clients. It not infrequently happens that the unpleasant, the unreasonable, the disreputable and those who have apparently hopeless cases turn out after a full hearing to be in the right. And it is a judge’s (or jury’s) solemn duty to find that out by a careful and unbiased investigation. This they simply cannot do if counsel do not (as at present) take on the less attractive task of advising and representing such persons however small their apparent merits.’ ([1969] 1 AC 191, at 275, emphasis added.)

As noted, this judicially endorsed rule against a barrister prejudging a client’s case is restated in the 2015 Bar Code of Conduct stipulating that a barrister must accept instructions irrespective of ‘any belief or opinion which [the barrister] may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client’.

It is therefore logically unsustainable to suggest that the decision of an advocate to take on a refugee case in compliance with the cab rank rule causes a genuine refugee to lose asylum in the UK.

Fundamental misunderstanding?

The Home Secretary’s appeal to barristers to enter into a ‘deal’ with government to refuse to accept instructions in what she regards as undeserving cases flies in the face of the rule of independence, judicially endorsed at the highest level as one of ‘fundamental importance’ to the administration of justice (Lord Hutton in Arthur Hall at 731). It is inappropriate, and inconsistent with the rule of law, to place pressure upon the Bar to compromise its independence.

Attributing responsibility for the alleged exclusion of ‘genuine’ asylum claimants from the UK to human rights and immigration lawyers accepting cases deemed by the Home Secretary, in advance of a judicial hearing, to be ‘undeserving’, is also irresponsible. It evinces a fundamental misunderstanding of the role of barristers in the administration of justice. Theresa May’s proposal that lawyers practising in these areas enter into a ‘deal’ with the government not to accept instructions in such cases is the antithesis of the professional and legal obligation of members of the Bar to strive to ensure that all litigants have access to justice, a duty underpinning the administration of justice and the rule of law.

I am grateful for the generosity of Max Hill QC (Red Lion Chambers and Leader of the South Eastern Circuit, John Bowers QC (Littleton Chambers) and Alison Padfield (Devereux Chambers) in commenting on a previous draft. All views expressed herein, and any errors, are solely mine.

Contributor Laura Hoyano is associate professor at the Faculty of Law, University of Oxford, senior research fellow, Wadham College Oxford, barrister & Fellow of Middle Temple and door tenant, Red Lion Chambers

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Laura Hoyano

Laura is Associate Professor of Law at the University of Oxford, and Senior Research Fellow in Law at Wadham College, Oxford. She is a Fellow of Middle Temple. She is a barrister and door tenant at Red Lion Chambers in London.