18 Sep 2023

We know that we as the regulators – and more particularly barristers as legal professionals – should be concerned to uphold it.  But what exactly is the rule of law, why does it matter and how far does it place ethical, as opposed to professional, obligations on barristers?

Let me start with a potentially controversial statement.  The rule of law is neither primarily an ethical nor even a legal concept.  It is above all a constitutional precept.

A state governed by the rule of law will display certain common characteristics. 

Laws will be made openly by representative institutions.  Public affairs will be conducted in conformity with the law and citizens can challenge public authorities if they seem to act arbitrarily or unreasonably outside the law.  Such challenges will be heard by independent Courts which are the final arbiters of what is or is not lawful.    Private disputes will likewise be settled in independent Courts in conformity with predictable laws and settled case law.  Alleged crimes will be dealt with in the same way.

The opposite of the rule of law is a state in which a dictator, autocrat or  political party can make arbitrary decisions which have the force of law and which cannot be challenged.  The safety and security of citizens depends on staying on the right side of the state - as impersonated by the dictator, autocrat or party - which is subject to no independent constraint.

These brief definitions make clear why the rule of law matters.  It is an essential safeguard of the liberty of citizens.  It also underpins the operation of economic activity and free markets by providing security for property and the upholding of contracts.

What the rule of law is not, however, is a moral precept.  Though many states in which the rule of law holds good will embody in their legal codes safeguards for human rights, there is no guarantee that all laws will be perceived to be just or that, taken together, the laws will result in a distribution of incomes or wealth which is universally regarded as fair.  On the contrary, states in which the rule of law holds good vary considerably in levels of equality or inequality. 

This is not quite the same thing as saying that distributional issues are irrelevant to the rule of law.  Widening inequality is likely, other things being equal, to place democratic institutions under pressure and may corrode the rule of law itself if plutocrats are perceived to have undue influence over the state, its laws and institutions.  But the rule of law does not mandate any particular legal code, set of moral assumptions, or distribution of economic and social benefits.

It follows that the duties of barristers to uphold the rule of law are professional duties, not moral duties.

Above all, barristers must always set their duty to the Court above their duty to their clients.  They must ensure that the Court is not misled and so is able to fulfil its responsibility to uphold the law.  In certain circumstances, barristers must ensure disclosure to the Court of facts or arguments unfavourable to their clients.

Closely allied to the duty to the Court is barristers’ obligation to be independent.  Barristers are not hired guns, but, in the light of their instructions and understanding of relevant facts, must give dispassionate advice about the legal arguments that can properly be made. 

And barristers’ independence carries a third obligation essential to the rule of law: namely to represent any client with a properly arguable case provided that the case is appropriate to their seniority and area of practice, and provided that a suitable fee is offered.  This  obligation – codified in the Cab Rank Rule – supports c access to justice and to the protection of the law for citizens and organisations. 

But, please note, the obligation of independence and the obligation to adhere to the Cab Rank Rule carries with it an important countervailing right: the right of barristers not to be identified with their clients or their clients’ causes.    The Cab Rank Rule vindicates access to justice and may require barristers to represent people charged with terrible crimes or unpopular people and organisations.  Barristers are not, however,  apologists for crime and should not share vicariously in the unpopularity of their clients or their clients’ causes.  The rule also prevents commercial interests from seeking to restrict barristers’ future representation as a condition of an instruction.

It follows that I am not impressed by the argument that we should drop the Cab Rank Rule because access to justice is constrained by people’s economic means.  The latter is a perfectly respectable argument for more generous public funding of legal aid, but not for abrogating a professional principle which sustains the rule of law.  We should not mix up social justice arguments – however well-intentioned – with constitutional rights.

For the same reasons, I am also cautious about importing moral judgements into barristers’ decisions about whom they should represent.   I understand the views of those who feel that barristers should be able to set aside their professional obligation under the Cab Rank Rule if they feel strongly about climate change and are invited to represent a polluter (or prosecute a protester).  I understand the concerns that others express about wealthy people or organisations mounting aggressive lawsuits to close down public debate.

But where a person or organisation does have a properly arguable case within the framework of existing law, I don’t think it is for for barristers to act as moral gatekeepers.  The rule of law trumps moral concerns.  It is for independent Courts to determine whether a case should proceed and, where it does, to determine the outcome.

The qualification that there must be a properly arguable case is important.  Barristers have at all times an obligation to exercise independent judgement.  Indeed, the rule of law requires them to do so. 

But the professionally efficient representation of unpopular clients is consistent with the rule of law, not opposed to it.

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