This Cab Is Not for Hire: Challenging the Cab Rank Rule

The cab-rank rule, the principle that barristers cannot refuse instructions from a client if they are available and have expertise in the field requested, is a fundamental tenant of English law. This ensures that there is access to justice for all and that barristers cannot cherry pick clients to represent.

Everyone deserves representation, legal advice and assistance. It can also be seen to be beneficial to barristers who can strengthen their practice by the wide range of work they must accept. Set out in the Bar Standards Board Handbook at rC29-30 this requirement on the profession gets its name from the tradition whereby a hackney carriage driver at the top of a queue of taxis is obliged to take the first passenger requesting a ride.

This origins of the cab-rank rule can be traced back to 1792 when Thomas Erskine defended Thomas Paine a radical writer who was on trial for his writings criticising the monarchy, at a time when this was trying to be quelled in the dace of revolution in France. Although urged not to act for Paine, Erskine did, as he held a view that everyone deserved representation, and thus the cab-rank rule was born. The relevance of this in a modern society was addressed in an independent report commissioned by the Bar Standards Board in 2013. There was resounding support for the rule, which was seen to both protect clients by ensuring the availability of representation, whilst also protecting barristers from any backlash, by providing representation in an unpopular matter.

However there has recently been a threat to this principle, as over 120 barristers, solicitors and academics have stated they would not partake in any prosecution of climate activists or provide legal services to fossil fuel companies, thus challenging the well-established cab-rank rule. However, with most of the letter’s signatories not actually criminal barristers with rights to practice they are therefore unlikely to find themselves breaking the cab rank rule any time soon and the Bar Standards Board may in reality be spared having to enforce these rules. Despite this, however many have expressed unease with the groups viewpoints, stating that a barristers whole purpose is to promote the rule of law and provide representation for their client, thus ensuring a fair trial, regardless of the matter.

In contrast others have suggested that barristers have always been able to avoid the cab-rank rule by stating that they are not available to take a matter for example. Furthermore, it can be argued that there are more fundamental barriers to access to justice, the main barrier being cost for example, as highlighted with the recent barristers strikes.

Author: Gemma Shepherd-Etchells

Questions to consider

• What is your view on the cab-rank rule? Should barristers be compelled to represent any client if they are available and experienced in that matter? Can you think of any disadvantages of enforcing this?
  
• What are the advantages of the cab rank rule in ensuring access to justice?

• Can you think of any other barriers to access to justice?