Lawyers Are Responsible: Refusing to defend the indefensible

Lawyers Are Responsible have shaken up the legal world since declaring that, on ethical grounds, they would no longer play by the centuries old ‘cab rank’ rule.

Matt Hutchings KC, who has practised in England & Wales for nearly 30 years, is one of the founders of Lawyers Are Responsible. Here he explains his involvement in what LAR describe as non-violent civil disobedience.

Until last year, I had not been involved in activism. But, like a lot of people, the climate and ecological crises began to cast a shadow over me. I found it enormously frustrating how little of the truth about the mess that we are in was presented in the media. Whereas my experience was that most people, once they appreciate the true facts, see the need to do something urgent about the crises we face.

Background

Barristers’ professional rules include the ‘cab rank rule’, which requires them to take any brief within their areas of practice regardless of whether or not they agree with the cause they are asked to advocate. Effectively, they are obliged to act as hired guns.

The cab rank rule dates from shortly after the British Civil War in the 17th Century. Barristers wear court dress, including a wig and gown, that dates back to the reign of Charles II, also in the 17th Century.

Just before the coronation of King Charles III, the Public Order Act 2023 came into force. You may well have read media reports about the many arrests over the coronation weekend, amid the pageantry.

The birth of Lawyers Are Responsible

Last year, a number of lawyers came together under the banner of “Lawyers Are Responsible”. The headline aims of LAR are: (i) to persuade lawyers not to act in deals that expand fossil fuel infrastructure, the broad context being that the City of London supports 15% of global CO2 emissions and (ii) to provide support for non-violent climate protesters, such as Just Stop Oil, who are subject to increasingly repressive criminal law enforcement as well as demonisation in the right wing press, on TV and on social media.

I helped to draft a ‘declaration of conscience’, by which the signatories pledged to withdraw their professional services from new fossil fuel projects or action against peaceful climate protesters. To date it has been signed by about 180 legal professionals, students and academics.

In view of the fact that barrister signatories were pledging to breach the cab rank rule, the declaration was designed as non-violent civil disobedience (NVCD). Martin Luther King stated in his Letter from Birmingham Jail that NVCD exposes hidden tensions and injustices to the air of national opinion.

The declaration provoked a sizeable reaction from the legal establishment and right-wing press, even before it was published on 27 March. It was leaked; the Chair of the Bar used the occasion of evensong at Temple Church on 22 March to speak against LAR and many legal professionals followed his lead. The Daily Mail led the charge of the right-wing press when they breached a press embargo on 24 March. They published what is known in the trade as a ‘front page hit job’ under the headline, ‘Fury at woke lawyers refusing to prosecute eco warriors’.

This furore provided LAR with many opportunities for media appearances. When we appear on TV, we get the facts about the climate crisis out there, which are not otherwise covered in the media. LAR has also spread the message via Twitter, where we received encouragement from celebrities such as Gary Lineker, and Steven Donziger, the US environmental attorney, who tweeted that, ‘It’s time for the global legal profession to step up and declare it will never help police or industry repress the climate justice movement. Great step. Count me in.’

Following tried and tested tactics, we broke the rules then painstakingly explained to those in positions of power and influence why we did it and sought to find common ground. Personally, what I found was that even very intelligent lawyers were quick to accept the framing of the issues presented by the Daily Mail. Once in a private conversation, it was relatively easy to dismantle this using critical analysis, standard lawyer’s toolkit. LAR are not ‘woke’ but ‘awake’ to the consequences of breaching the 1.5%C Paris Agreement limit, including mass loss of life and livelihoods and catastrophic harm to human health, among other dire consequences.

In addition, as readers of AirQualityNews will be aware, fossil fuel pollution is responsible for large numbers of human fatalities. Research conducted in 2021 by Harvard University in collaboration with English universities concluded that more than 8 million people worldwide died in 2018 from fossil fuel pollution.

My position in post-Brexit Britain has been to seek to justify my actions based not on international human rights treaties but on our common law history dating back to the English Dissenters movement (including notably Quakers) of the 16th and 17th Centuries, which led to legal precedents in relation to ‘conscientious objection’ on both sides of the Atlantic, culminating in the well-known US Supreme Court decision Clay v United States (1971). One way of viewing the LAR declaration is that the signatories are conscientiously objecting to taking on specific briefs.

Just over a month after their front page article, on 27 April the Daily Mail published an article under the headline ‘Green light for woke lawyers’ which reported that, at a Bar Council Debate, the Head of the Bar Council’s Ethics Committee, Stephen Kenny KC, had accepted our submission that our professional rules permit us to object to taking on work on conscientious grounds.

On 17 May, the Bar Standards Board issued formal decisions confirming that barristers will not face any regulatory action over signing the declaration. This is symbolically important, since it encourages other lawyers to take a stand.

The next phase

The next phase of the campaign includes turning LAR into an international movement of lawyers, centred in the global north, refusing to act in support of new fossil fuel projects or against non-violent climate protesters. Lawyers in Italy, the Netherlands, Sweden, Australia and Canada have already made contact with us and are looking to follow our lead.

We also envisage a wave of protest actions targeting top City law firms that do substantial amounts of work for fossil fuel companies, modelled on the successful anti-apartheid campaigns of the 1980s.

On 10 May Law Students for Climate Accountability published a detailed report on the UK legal industry’s ties to fossil fuel companies entitled ‘The Carbon Circle’ which was covered in the Evening Standard under the headline ‘London law firms facilitated £1.48 trillion for fossil fuel companies’ (over the five year period 2018 – 2022).

LAR have written a letter to the senior and managing partners of Allen & Overy, which we have published on Twitter, and have stood outside their offices, handing out leaflets and engaging lawyers in conversations as they entered the building. Watch this space for news of progress on that one.