Lawyers ‘Genuinely Afflicted by Conscience’ Should Not Represent Fossil Fuel Interests, Says Bar Council Ethics Chair

Lawyers ‘Genuinely Afflicted by Conscience’ Should Not Represent Fossil Fuel InterestsSays Bar Council Ethics Chair

A number of barristers are speaking out against the ‘cab rank’ rule, under which advocates have to accept any case that lands on their desks, faced with their concerns about the climate emergency

Lawyers may refuse representation to fossil fuel companies as a matter of conscience, the chair of the Bar Council’s ethics committee has said.

Speaking on an agenda item on the cab rank rule, Stephen Kenny KC said that those “genuinely afflicted by conscience” would be unable to do their job properly and, therefore, “do not have to act”.

The debate came after milestone guidance published last week by the Law Society which stated that solicitors are “not obliged to provide advice” to big polluters.

“Solicitors may also choose to decline to advise on matters that are incompatible with the 1.5°C goal or for clients actively working against that goal if it conflicts with your values or your firm’s stated objectives,” it said.

While there was no resolution to the Bar Council debate, nobody chose to challenge Kenny’s conclusion that barristers could decline to represent clients for whom they would be unable to maintain unbiased independence.

The debate was tabled to discuss the ‘cab rank’ rule, which ensures guaranteed representation to anyone in need. The idea is that, much like a taxi rank, lawyers must accept any case which lands on their desk if they have the time to represent the client.

However, Paul Powlesland, the barrister elected to the Bar Council to raise issues surrounding the climate crisis, expressed the limitations of the cab rank rule. “It is nonsense to say that the role of the bar is to represent anyone who needs it,” he said. “That is absolute nonsense. The overwhelming reason that people cannot get representation at the civil bar has nothing to do with the fact that they’re committing a global climate genocide, but rather because they cannot afford it.”

“The cab rank rule is fiction,” agreed Tim Crosland, a former barrister and member of Lawyers are Responsible, explaining that barristers can simply claim to be too busy to work on a case which doesn’t interest them. “People turn away work they don’t want all the time. Your clerks do that for you.”

This echoed Michael Mansfield KC’s calls for the rule to be abolished in recent weeks, arguing that it is “obsolete”.

The cab rank rule has become a hotly debated topic after Lawyers are Responsible released its ‘Declaration of Conscience’ last month – branded a “distinct threat” to the perception of the independence of the Bar by Nick Vineall KC, chairman of the Bar Council, who has acted both for and again fossil fuel companies.

Signed by 170 lawyers, the public declaration stated that the barristers would not represent new fossil fuel interests nor prosecute climate activists.

This stirred fury in the right-wing media, with commentators claiming such a position challenges the rule of law and the right to representation in England and Wales. The signatories’ counter-argument is that compelling those deeply concerned about the climate emergency to represent fossil fuel interests would violate British law, as these lawyers would not be able to maintain their independence and thus properly advocate on behalf of the client. 

This is encoded in Rule 2110 of the Bar, which states that barristers “must not accept instructions to act in a particular matter if… there is a real prospect that you are not going to be able to maintain your independence”.

Highlighting the rule as a “safety valve” in the Bar Council debate, Stephen Kenny went on to say that those who are “genuinely afflicted by conscientious objection to acting against or for a particular client” can choose to rely on Rule 2110. But he added that he did not think this exception could be used to avoid prosecuting climate activists. 

The legal profession is under pressure from concerned practitioners given its role in expanding fossil fuel interests around the world. Since the Paris Agreement, leading law firms have facilitated $1.6 trillion of fossil fuel transactions globally. The City of London alone supports 15% of global carbon emissions – and has helped fossil fuel companies sue the British Government for $100 billion in ‘compensation’ for policies to reduce carbon emissions. 

The Bar Council’s public position on the climate crisis “recognises the scientific consensus that limiting global heating to 1.5°C is fundamental to preventing the very worst effects of climate change” and the “likelihood that the developing crisis will bring increased global inequality and in turn an increased risk of conflict and global disruption, affecting access to justice and the rule of law”.

“The Bar Council believes, for these reasons and as a matter of fundamental social responsibility, that the profession has a duty to join the global effort to mitigate and adapt to the effects of climate change and recognises its central role in supporting its members in doing so,” it added.

But as climate scientists warn we are on track to burst through the 1.5°C pledged by nations in 2017, Lawyers are Responsible is challenging the industry’s influence on facilitating oil and gas expansion. Speaking in a video projected onto the Royal Courts of Justice last month, Tim Crosland said: “Behind every new oil and gas deal sits a lawyer, and behind that lawyer sits a law firm getting rich on those profits while people die.”

“Refusing to advance fossil fuel projects, which will lead to mass loss of life, is a matter of conscience,” said Paul Powlesland. “Refusing to prosecute those resisting such destruction, who are now being prevented from explaining their position to the jury, in violation of the right to a fair trial, and who are receiving increasingly draconian sentences of imprisonment, is likewise a matter of conscience. That’s why so many of us have signed the Declaration of Conscience. 

“Following the meeting of the Bar Council… it’s increasingly clear that our action in signing the Declaration was not only morally right, but required of us as a matter of professional obligations. We could never maintain our professional independence while knowingly advancing the destruction of the conditions which make the planet habitable.”

Lawyers are Responsible is receiving vocal support around the world and the group has been contacted by members of the legal profession in Italy, The Netherlands and the US who are keen to drive similar change in their countries. It has also issued an advert in the press coinciding with the Guyana Bar Association conference, inviting all lawyers to join Lawyers are Responsible. 

“Lawyers are a privileged group in society,” said Melinda Janki, a Guyanese lawyer specialising in climate litigation and member of Lawyers are Responsible. “That privilege carries an obligation NOT to destroy the climate by working for fossil fuels.”

This article was amended on 28 April 20223 after representations by the Bar Council to clarify Paul Powlesland’s position on the cab rank rule, and Nick Veneall’s work acting both for and against fossil fuel companies.