Following a series of attacks by the government and parts of the media against the leader of the opposition based on his career as a barrister, it appears necessary to sprinkle some facts into the conversation.
1. Keir Starmer was a barrister. What is a barrister?
A nice easy one to kick off. A barrister is a type of lawyer. Speaking very broadly, in England and Wales there are two types of lawyer – solicitors and barristers. Solicitors are usually your first point of contact for any legal matter, and will usually carry out all the work themselves. Sometimes, particularly if your case is likely to require a court hearing, your solicitor will instruct a barrister, whose role is to offer further specialist advice and to represent you in court. The simplest analogy is that of a GP and a consultant (or a surgeon).
Most barristers are self-employed. We operate out of ‘chambers’, which are basically premises where we all share overheads (building rent, staffing costs, clerks etc). Except in rare cases, a member of the public needing legal help would not approach a barrister directly. The barrister is usually instructed by a solicitor, who is instructed by the lay client. In practical terms, a solicitor will ring a barristers’ chambers when they have a case that needs a barrister’s input, and will ask the barristers’ clerks (who organise our diaries) if somebody is available. This could be a named individual, if the solicitor has a barrister in mind for a particular case, or it could just be a request for whoever is available.
Crucially, for the purposes of this lecture, all barristers are bound by an ethical principle commonly called ‘the cab rank rule’.
2. What is the ‘cab rank rule’?
The ‘cab rank rule’ is, not to put too fine a point on it, the Bar’s equivalent of the Hippocratic oath.
The golden rule is that, when a case comes in, as long as you are available (and competent to do it), you have to take it on. As the name suggests, like a cab driver at a rank picking up the first fare that comes along, you can’t just decide that you don’t fancy it because of where you’re being asked to drive, or because you don’t like the cut of the customer’s jib.
The principles behind the cab rank rule goes back centuries (there’s a good history here, if you’re interested), but its underlying purpose is to ensure that everybody has access to legal representation.
The rule of law underpinning our democratic settlement cannot work unless people can enforce their civil rights in the courts. Criminal justice cannot function unless cases are fairly and competently prosecuted and fairly and competently defended. And a central component is ensuring that, where somebody needs representing by a barrister, the barrister is not entitled to refuse simply because they don’t like the lay client, or because they disapprove of what the lay client is alleged to have done (or has in fact done), or because public opinion is against the client’s cause.
Because (to state the obvious), if barristers were able to select only the easy cases, or represent only the polite and popular clients, there would potentially be quite a few difficult cases, and fair few impolite and unpopular clients, going unrepresented in court. And the rule of law requires that everybody – even the most objectionable among us – is treated equally under the law. That is rendered much, much harder if somebody finds themselves navigating complex legal proceedings with no assistance, up against the might of the state or highly lawyered-up corporations.
The rule also protects the barrister. It means that the barrister is not associated personally with their lay client. Again, if we only agreed to take on clients we liked, or whom (in the criminal courts) we believed to be pure and innocent, we would find ourselves identified with our clients, with potentially negative reputational or safety consequences for those who “chose” to represent the bad guys.
The separation between the barrister and the behaviour, opinions or reputation of their client is reflected in the United Nations Human Rights Basic Principles of the Role of Lawyers, which provides:
“18. Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.”
3. So are barristers forced to take every case that comes their way?
No. There are exceptions. Barristers are governed by the Bar Code of Conduct, which sets out the cab rank rule at Rules C29 to C30.
The rule itself is at rC29:
But there are exceptions, specified in rule C30. Most of these relate to matters of practicality or commerce – barristers can refuse where, for instance, there is already a commitment in the diary, or where she is not offered a ‘proper professional fee’ for the work. The full list is below:
4. Ah, but some of Keir Starmer’s cases I’ve read about relate to work that he undertook abroad. And pro bono (voluntary unpaid) work. Rule C30 says the cab rank doesn’t apply to foreign work or pro bono work, right?
Well the cab rank rule in C29 doesn’t apply, no. But that’s not the end of the story. There is also rule C28 – the “Requirement Not To Discriminate” – which has to be read alongside rules C29 and C30. Because it reiterates what lies at the very heart of our ethics:
This rule is universal. There are no get-outs. No exceptions. In no circumstances, no matter what the work or where in the world you may be instructed, you cannot refuse to act on the grounds that you find the case or the client to be personally objectionable, or that the public might find the client unacceptable.
That is a red line.
And its importance is underlined by this fact:: Rule C30 above actually carves out an exception to the cab rank rule for legal aid cases. The fees were cut so much that the regulator deemed that legal aid does not constitute “a proper professional fee”, and so, in theory, I (and all criminal barristers) are at liberty to refuse any legal aid client.
But of course, we don’t. And we absolutely do not refuse on the basis that the client is unsavoury or unpopular. To do so would be in breach of Rule C28.
This is why suggestions that “the cab rank rule didn’t apply to Starmer’s foreign cases” or “the cab rank doesn’t apply to pro bono cases” is a misnomer. A sleight of hand. It deliberately misses the point.
A barrister can’t be forced to carry out pro bono or foreign work. But once you make yourself available to carry out that type of work, you cannot then start discriminating between clients on the basis that you, or the public, find some clients more sympathetic or more objectionable than others.
5. But if Keir Starmer wasn’t strictly required to accept those foreign and/or pro bono cases, why can’t he be criticised for doing so?
He can be.
Mrs Starmer, for instance, would be fully entitled to criticise her husband for accepting foreign work which was going to eat into their weekend plans, or which, although paying a proper professional fee, did not justify the disruption of yet another international trip. “You did not have to accept that case,” she could have rightly said.
A Pro Bono charity who had hoped to avail themselves of Keir Starmer’s services, but whom he then stood up in order to take a nice juicy brief in Germany, might criticise his decision. “You chose that boondoggle over us,” they would correctly point out.
Pro Bono work by barristers is widely celebrated as an essential public good – providing free legal representation for people who would otherwise find themselves without, and ensuring access to justice for thousands of people and causes. But you could make the argument that lawyers should not do it, as it masks the delinquency of the state in failing to ensure universal legal representation. A financial advisor might query the notion of lawyers giving up hundreds of hours of time and expertise for no fee. Choosing to do this work at all can legitimately be criticised.
But attacks by The Sun and the Prime Minister, and a variety of far-right trolls on social media, are not aimed at the fact that Starmer took on more work than he should have, or that he greedily prioritised one high-paying international case over a lesser domestic option. The criticisms are aimed directly at the character of Starmer’s clients.
When the Prime Minister brays in Parliament that Starmer has represented terrorists, or when the semi-witted political editor of The Sun lists the unpleasant deeds of Starmer’s former clients in a failed ‘gotcha’ interview, they are deliberately seeking to identify Starmer with his clients. This is a man whom the public should condemn, for he chose to represent criminals and terrorists, is the obvious subtext. Where do his sympathies really lie?
The corollary of this line of criticism is that Starmer not only could but should have refused to act, for the very reason that these people were criminals and terrorists.
But that, as we have seen, is the one ground on which he was absolutely not allowed to refuse! Had Starmer – as Sunak apparently believes should have happened – said to his instructing solicitors: “No thank you – these are foreign terrorists, and I really don’t think terrorists are the type of person I should be representing”, he would have been in clear breach of the most important duty a barrister holds.
So while Starmer was not forced to accept foreign instructions or pro bono work under the cab rank rule, he was also not allowed to refuse them because of the nature of the client, under the non-discrimination rule.
In other words, the reason that the Conservatives and The Sun are insinuating Starmer should have refused the case – he was not allowed to refuse for that reason.
Again, it bears repeating: a barrister can’t be forced to carry out pro bono or foreign work. But once you make yourself available to carry out that type of work, you cannot then start discriminating between clients on the basis that you, or the public, find some clients more sympathetic or more objectionable than others.
6. Sure, but barristers get out of the cab rank rule all the time, right? Why couldn’t Starmer have just given a different reason for refusing?
Well, he could have. He could have made a political calculation that representing terrorists was unlikely to play well should he find himself one day in the House of Commons, and he could have simply said “no” to his solicitors, without disclosing his true reasons. In much the same way as a doctor who didn’t want to treat an unpopular patient could theoretically hide in a cupboard and claim that he was busy seeing another patient elsewhere.
But had Starmer done so, he would, of course, have been breaching the Bar Code of Conduct, rule C28. I don’t know Keir Starmer; I don’t know how important that is to him. It would be important to me – I’ve never breached the duty of non-discrimination and I never would. As set out above, there is an exception to the cab rank rule for legal aid cases. If I decided that I didn’t want to represent terrorists because terrorism is a vile crime, I could refuse and, as long as I didn’t ever disclose my true feelings, I would get away with it. But I wouldn’t do that. For all the reasons above, to me the rule encapsulates the entire point of becoming a barrister. I represent whoever needs representing. That is it. The day I start turning my nose up because I don’t want to be associated with a client’s misdeeds is the day I should hang up my wig.
But whatever Starmer’s personal views, a moment’s reflection here: is the criticism genuinely that Starmer could have got out of this by privately breaching the Bar Code of Conduct and lying about it, and that we should hold against him the fact that he did not do those things?
7. What about those lawyers who made a big announcement that they were going to refuse to act in certain cases involving climate change?
Last year, around 120 lawyers signed a “declaration” in which they vowed to “withhold [their] services in respect of supporting new fossil fuel projects and action against climate protesters exercising their right of peaceful protest”. This included a number of barristers.
This was widely criticised at the time by other barristers, including the Chair of the Bar Council, for flying in the face of our professional ethics. It was reported by one of the barristers involved (a non-practising tax Silk who is not qualified to prosecute criminal cases in any event) that he had been advised by the Bar Standards Board that, if he or his co-signatories follow through on their declaration, they should self-report for disciplinary action.
But in any case, the fact that a minority of barristers may decide to breach ethical rules does not mean that other barristers are not bound. A declaration in 2023 by a pressure group does not change the rules that applied to Keir Starmer in the 2000s.
8. Right. But ultimately, Starmer chose to go into this line of work. He chose to practise in an area of law where he would be rubbing shoulders with society’s least desirable. He didn’t have to, did he?
No, he didn’t. In the same way as a doctor who works in an A&E department in an area with high gun crime, and so treats a lot of people involved in criminal gangs, didn’t have to work at that hospital. Or indeed, become a doctor at all.
But here’s the thing: providing medical treatment for people is good, actually. And providing legal representation for people is good, actually. Both are essential to a functioning civil society. And doing those jobs means that some days you are helping the good, the morally virtuous and the deserving. And other days, you are on the side of people who represent everything you personally stand against. That’s the deal.
You can’t only help the good guys.
The minute doctors are required to judge their patients before deciding whether to treat them, the system falls to pieces. It’s the same for barristers.
9. But I’m sure I’ve seen a jolly looking barrister on GB News assuring us that it is perfectly legitimate to criticise Starmer.
You may well have. GB News regularly solicits the thoughts of a Conservative councillor who enthusiastically offers often inaccurate “legal commentary” which always so happens to reflect the partisan interests of his party. But, as we’ve seen above, the claim that “the cab rank rule does not apply to foreign work” and “Starmer chose to accept those cases” is a thoroughly dishonest response, because it deliberately misses the point. This is not about the applicability of the cab rank rule in c29 and c30. The point is the duty not to discriminate, which does apply: that a barrister in any case is not allowed to refuse to act because of the perceived unpleasantness of their client. The point is that any barrister with any understanding of the job knows that barristers should not be identified with their clients, and that *that* is the problem with the attacks on Starmer.
I cannot put it better than one individual did when Conservative minister and barrister Geoffrey Cox was criticised for his clients:
10. Why does this matter? Is this not just political rough sport?
No.
It matters to me. As somebody who represents people accused of the most heinous criminal offences imaginable, it matters that the public understand that, in doing my professional duty, I am not endorsing my clients’ actions. As somebody who prosecutes some of society’s most dangerous offenders – murderers, drug lords, gun runners, members of OCGs – it matters to my sense of safety that people don’t start to think that I personally choose the people I want to prosecute.
And appeals to safety are not rhetorical devices. The anti-lawyer rhetoric by the governing party has already risked fatal consequences for lawyers.
But it also matters to society. It matters to the public that something as treasured as the rule of law, and the mechanisms we have carefully built to ensure access to justice, are not casualties of populist politicians and tabloid editors desperately dumping accelerant over the culture wars.
The public deserves integrity, professionalism and accountability in the way our country is run. I believe that somebody once said as much.