Fundamental issues arise in the debate about the cab rank rule, which are of wide application. These issues are particularly important where barristers are confronted with immoral or illegal actions undertaken by foreign governments or regimes. Before dealing with the issue, we stress that we are staunch defenders of the cab rank rule. When the Legal Services Board in 2013 made a misguided attempt to do away with the cab rank rule we strongly supported the campaign to keep it. The rule serves to ensure that no matter the case a litigant in civil or criminal proceedings will have access to skilled representation, and it assists in ensuring equality of arms, and fair trials. 

However, the cab rank rule only applies to proceedings within England and Wales. It does not apply ‘if accepting the instructions would require you to do any foreign work’ (r C30.5 of the Bar Code of Conduct). ‘Foreign work’ means legal services of whatsoever nature relating to (a) court or other legal proceedings taking place or contemplated to take place outside England and Wales; or (b) if no court or other legal proceedings are taking place or contemplated, any matter or contemplated matter not subject to the law of England and Wales (s 6 of the Bar Code of Conduct). 

There is a very good jurisprudential foundation for why the rule does not extend to the instruction of barristers in foreign work. The regulator of the barristers’ profession (the Bar Standards Board) cannot vouch for the adherence by foreign jurisdictions to the principles that underpin the legal system in England and Wales and which ensure the rule of law. Within these principles are the requirements that courts are impartial and independent of the state, and uphold human rights. The regulator is able to say that in all cases proceeding within England and Wales there is good reason for barristers being required to represent clients on a first-come, first-served basis. The regulator can be certain that no barrister will be required to defend arbitrary or martial laws, nor appear before courts lacking independence from the state, and that redress will be given through an independent judiciary should government act unlawfully. 

This is not always the position so far as proceedings in foreign courts are concerned, however. While many countries adhere to the rule of law, some do not. The regulator’s reach does not extend to the conduct of such proceedings by foreign courts, nor is the regulator able to say that such proceedings will conform with the principles which inform the legal system of England and Wales. The application of the cab rank rule assists in achieving equality of arms in England and Wales, whereas in a jurisdiction which does not adhere to the rule of law, the state could abuse the rule (were it to apply) to compel the barrister to appear for the state and its entities in oppressing its own citizens, or in acting contrary to international law. Even if the citizen of such a state had access to lawyers they may not be subject to a cab rank rule. The barrister could therefore become the tool of the oppressor state. 

In turn, this means that a barrister is free to choose, using their own moral judgment, as to whether to accept instructions in foreign work. For example, a barrister instructed to appear (in foreign work) in a commercial case instructed to free the arrest of a ship carrying a cargo destined for Myanmar/Burmese state entities is at liberty to say that they will refuse to act. In the circumstances confronting a barrister offered such an international brief, we suggest it is right and proper that the barrister should confront the moral questions which they consider to arise before deciding to accept the brief. Confronting these questions may lead to a different answer on the facts of different cases for individual barristers. We suggest that where the barrister knows that the issues will be tried before independent and impartial courts, where human rights are respected, and where both sides have access to independent legal advice and representation, a decision to accept the work may not present difficulty. But the further one moves away from these fundamentals, the more likely it is that the foreign work will give rise to an acute dilemma. Of course, once the decision has been made to accept the brief, the barrister must then argue the case in the client’s best interests, fearlessly and without regard to the barrister’s own interest. But these matters are all subsequent to the decision made whether to accept the instruction or not. Likewise, once an instruction has been accepted it would be improper to return that instruction so close to a hearing that the client’s interests might be damaged. But that too is a subsequent ethical matter and not one which addresses the issue which we suggest is the primary concern in foreign work, namely: ‘Should I accept this particular instruction having regard to the legal system in which the issues in the case fall to be resolved?’. 

When one understands the proper scope of the debate and the proper extent and application of the cab rank rule, one is then in a position to make an informed judgment about choices which barristers make in deciding whether to act for parties in foreign law proceedings. Of course, as the United Nations has made clear, once a barrister is acting for a client it would be inappropriate to associate the barrister personally with the arguments of the client. But that too does not deal with the fundamentally important and prior personal question. 

These ethical questions are timely ones for us all to consider as we are living in a period where the rule of law is increasingly under threat. We hope that if nothing else, practitioners in the United Kingdom will reflect on these core jurisprudential and ethical principles before accepting, often lucrative instructions in jurisdictions where the principles of the rule of law as adumbrated by Lord Bingham not only do not apply, but are sometimes anathema.