Fig leaf falls from legal profession, as Bar Council Ethics Committee Chair concedes barristers may act on conscience
In a surprise development, Stephen Kenny KC, Chair of the Bar Council’s Ethics Committee, stated last night at a meeting of the Bar Council, the representative body for barristers in England and Wales, that barristers may refuse to take on cases as a matter of conscience.
His statement follows publication of guidance by the Law Society last week, which was explicit that solicitors may refuse to act in support of projects leading to catastrophic climate change:
“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.”
So soon after the engineered media uproar over Lawyers Are Responsible’s Declaration of Conscience (“Fury at woke barristers refusing to prosecute eco warriors”, Daily Mail), in which more than 170 leading lawyers have pledged not to advance new fossil fuel projects nor to prosecute those peacefully resisting them, these developments imply a significant shift in the landscape, and a growing recognition across the legal profession that a proportionate response to the climate and ecological emergencies is urgently necessary to uphold the rule of law.
Speaking last night on a motion to discuss the cab-rank rule, in light of the Declaration, Stephen Kenny, said:
“There is an exception within our rules in rule 21(10), that you must not accept instructions to act in a particular matter if there is a real prospect you are not going to be able to maintain your independence. So, if you are genuinely afflicted by conscience, such that you cannot properly do your job as an advocate … you do not have to act … We do therefore have a safety valve, within our rules … those who are genuinely afflicted by conscience can choose to rely on rule 21(10).”
Reflecting on the discussion at the Bar Council meeting, Paul Powlesland, one of the barrister signatories to the Declaration of Conscience, who is also a member of the Bar Council and who attended the meeting, said:
“Refusing to advance fossil fuel projects, which will lead to mass loss of life, is a matter of conscience. 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 last night, 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.”
Our paper for the Bar Council Debate here https://www.lar.earth/bar-council-debate/
“Cool rules for a hot debate”, Law Society Gazette, Jonathan Goldsmith
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