Jenson Davenport discusses the relevance of the rule today
By Jenson Davenport
If you have an interest in the legal profession, the “cab rank” rule is probably a familiar expression to you. According to the Bar Standards Board Handbook (BSB) 1, the cab rank rule imposes an obligation on a barrister to accept instructions from a client, irrespective of the identity of the client, the nature of the case, how the client is funded and finally irrespective of “any belief or opinion which you may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client”2, if the case falls within your field of expertise. The name originates quite creatively from the principles instilled in London cab drivers – generally no licensed driver can refuse to carry a passenger. The principle seeks to ensure that clients are not prejudiced by their barristers and have access to legal representation where it is available, where a barrister – who themselves would not be unduly prejudiced by taking the case – has the knowledge and expertise to represent in such cases. In essence, the cab rank rule allows for even the most unpopular, controversial clients to have expert representation, hoping to minimise access to justice prejudices.
The cab rank rule has been making headlines this week as a result of Dinah Rose QC refusing to distance herself from a case in which she is to represent the Caymanian government in opposition of pro-LGBT legislation. Rose responded to criticism in a statement saying “The cab rank rule applies to the Privy Council brief. As an instruction to appear in a court sitting in England in an area in which I was expert, received when I was available to act, I was obliged to accept it”3. She went on to say that “it is a vital component of the administration of justice and the rule of law that barristers should not be identified with the views or positions of their clients. Otherwise, barristers who are instructed in controversial cases may be subject to abuse and harassment, and deterred from taking them on”4. It is clear that Rose is adamant in her position; she is obliged to represent her client independently without the influence of external pressure. For Rose, her external commitments at Magdalen College, Oxford and her previous human rights litigation are separated from the case in front of her. Yet, can the cab rank rule truly be justified in the capacity that it currently is in the present day, or are the fears of the collapse of the rule of law without such a rule hyperbolic at best?
The cab rank rule splits opinion within the legal community. There is fierce opposition to the cab rank rule and there are adamant defenders of it, in the name of the rule of law and access to justice. In a 2013 report, the Legal Services Board (LSB) described the cab rank rule as “redundant” and that it should be abolished5. Additionally, academics such as Professor John Flood have said that the rule has been “regularly breached” and that it “serves no clear purpose.” The opposition to the rule suggests that it doesn’t have a place in English law in the modern day; the removal of the rule would have no effect on the efficacy of legal services. The 2013 report concludes that “while it can be lauded as a professional principle enshrining virtuous values as a rule, [the cab rank rule] is redundant. We can see no justification for the continuation of the cab rank rule as a rule in the modern, globalised legal services market.” From this report, and subsequent refusals to extend the cab rank rule since, it has been shown that from members of the legal professional community the cab rank rule often receives a disgruntled reception.
Yet to conclude that there is unanimous discontentment with the cab rank rule would be quite untrue. The Dinah Rose controversy this week is a clear example of that. Within the legal community, there is a tension here. To the human rights lawyer, access to justice is an unqualified right; under no circumstances should a client be denied a degree of access to justice – this may vary depending on the sensitivities of the case, but in a typical, uncontroversial case, legal representation will never be a point of contention for such a client. For Andrew Walker QC, the cab rank rule “remains relevant and is one of the safeguards underpinning the rule of law in our society… both history and the situation in too many countries in the modern world show us that it would be complacent and unwise to set aside such safeguards.” The upholding of the rule of law and the fear of access to justice encroachments are central to the defence of the cab rank rule. If not in a practical sense in the UK, as a legal principle, there is fear that the removal of the rule would send out a “dangerous message”.
Roddy Dunlop QC wrote a compelling article in The Scotsman in defence of the cab rank rule, its headline proclaiming that “it is an advocate’s professional duty to follow the cab rank rule”6. He referred to Home Secretary Priti Patel’s speech in October 2020 which condemned “lefty lawyers” and “do-gooders” for representing asylum seekers, or as she coined them “the indefensible.” Amanda Pinto QC, in response to Patel’s comment, reiterated that “lawyers carry out their duty and apply the law, irrespective of political persuasion, in accordance with our professional standards… the law, not politics, is what matters to a profession that upholds the rule of law”7. In his article, Dunlop echoes similar words, holding that Patel’s comments “fail to understand the cab rank rule. They suppose that political conviction motivates lawyers to bring cases that oppose or challenge government policy. The cab rank rule means it is an Advocate’s professional duty, regardless of personal beliefs, to accept any client who has a stateable case.” The cab rank rule seeks to separate the personal from the professional to ensure that the most vulnerable in society have legal representation which is crucially independent from the state.
In concluding his article, Dunlop writes “it is essential that everyone, no matter how vulnerable (as are many asylum seekers), and no matter how worthy of revulsion (as was Alesha [MacPhail]’s murderer) can access representation.” I wish to echo this sentiment. The cab rank rule is, as a matter of principle, core to the notion of legal representation and access to justice in the UK. It makes up what we consider the rule of law in the UK; even if just a symbolic gesture of a commitment to represent those in need, unprejudiced by their cause. A separation of personal beliefs from professional duty is an essential part of acting as a barrister. Nobody claimed it was an easy job, but we all can recognise the importance of such a job, and the importance to maintain such duty, regardless of external factors or pressure to withdraw from a client, jeopardising the quality of their representation.
- At Rule C29-C30
- At RC29.d