Understanding the cab-rank rule
Why The Secret Barrister is wrong (this time).
A few years ago someone recommended a book to me — The Secret Barrister: Stories of the Law and How It’s Broken. I had a tangential professional interest in the subject matter, so I bought it; read a few pages; discovered it was terrible; and used it as a coaster for a few months, before depositing it in the waste-paper basket. And that was that.
Until this weekend. Because this weekend an unholy spat has broken out on legal twitter. Or, more accurately, politics twitter pretending to be legal twitter. It all begins with the launch of The Sun newspaper’s, new Never Mind the Ballots politics show. The Sun managed to secure Labour leader, Sir Keir Starmer, as it first guest. And — as is to be expected from a right-leaning tabloid — presenter (and Sun Political Editor), Harry Cole, attempted to make Starmer squirm over his career as a lawyer before he entered politics — specifically that he had represented some unsavoury characters.
So far, so pedestrian. Starmer unapologetically bats Cole away, pointing out that — I dunno — sometimes lawyers represent clients and stuff. And good for him!
Then, in chimes political donor and right-winger Arron Banks. He points out that — the way he sees it — lawyers do not actively have to pursue these cases to further their career.
The is where we meet our friend The Secret Barrister again. He is apoplectic that Banks had the temerity to suggest that his legal and political idol — Sir Beer Korma — had agency over the direction of his career, declaring on Twitter:
This is untrue. Barristers are forbidden from refusing to represent unpopular clients. It is in our professional code.
He’s talking about something known as the cab-rank rule — essentially an obligation on barristers not to turn away work just because you find it the client to be a bit iffy.
Let’s gloss over a few things. Let’s not dwell on the fact that Starmer did not himself feel the need to argue that he was unable to decline these cases. And let’s gloss over the fact that the rule has exemptions which would have applied to some of the cases in question. And let’s also ignore the fact an obligation would be relevant only if Starmer had not wanted to take the cases (and we have not indication that he did). Because there’s a more important point here.
What The Secret Barrister has achieved is to get everyone in a muddle about what the cab rank rule is. And perhaps it’s not entirely his fault. Because the choice of Hackney Carriage analogy is poor.
You see, a cab rank — a real one — is a system of labour allocation. The cabbie joins the queue, and when he gets to the front he must take the first fare. It might be a juicy airport run. Or it might be a shitty little job round the corner and he’ll be at the back of the queue again in five minutes, facing a 45 minute wait for his next fare. You win some, you lose some. But it’s fair (to the cabbies).
But there is no centralised (or organised) system of allocation for barristers. Barristers are (almost always) instructed by solicitors via a direct approach. So the analogy breaks down pretty quickly.
A better analogy would be the “the duty to go south or the river at this time of night”. Hackney Carriages have obligation to take a fare if their “For Hire” light is on and they stop to ask the fare where they want to go. The obligations on a barrister are similar: if you’re available; advertising yourself as competent for the work; and the customer is willing to pay the going rate; then you cannot refuse the case.
But the barristers’ “cab rank” isn’t really about allocating work fairly between the barristers (although it does help to prevent cherry-picking to an extent) — it’s principally about ensuring everyone can get access to representation. And because there isn’t an allocation system at play, it’s more or less discretionary in much the same way as inheritance tax.
No cabby is ever forced to take a drunk reveller back from Soho to the ‘burbs when the bars kick out. Some cabbies like those jobs — the rate is better, and they are usually long, lucrative runs. Others hate these jobs, preferring to shuttle sober businessmen between Waterloo and City during the hours of daylight. They do have rules. But they also have agency and control.
And in exactly the same way, barristers have agency (admittedly how much depends on what kind of law they practice). They develop specialisms; they network and form relationships with instructing solicitors, and with other counsel; they market themselves. And of course the best way to be unavailable to for a case that you’d rather not take is to be too busy working on a case you do want to do!
I have no view of whether Banks is criticism of Starmer is fair or not. But he’s right: good barristers absolutely have control over what work they do. And I’m not saying The Secret Barrister isn’t a good barrister. But if he’s not able to be proactive about his own caseload, then perhaps he’s saying that about himself.
