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In Defence of the Defence: The ‘Cab Rank Rule’ and Why It Matters

“I do hereby call you to the Bar and publish you Barrister.”

A 1532 parliamentary statute recognised those learned in the law as ‘barristers,’ and since 1590, a call to the Bar has been a necessary qualification to appear before the higher common law courts. The English common law holds as a key tenet the ‘cab rank rule’, a principle that, as recently as May 2023, the Bar Council described as a ‘bedrock obligation’ that ‘promotes access to justice.’ In essence, it obliges barristers to take any case that falls within their professional capacity for which they will be appropriately remunerated. Barristers cannot choose their clients, nor do they associate themselves personally with clients’ actions or beliefs.

Thought to originate with Thomas Erskine, an eighteenth-century barrister and politician, the ‘cab rank rule’ has informed legal practice for around 250 years. During his defence of Thomas Paine, on trial for charges of seditious libel, Erskine declared after pressure not to take the case:

“I will forever, at all hazards, assert the dignity, independence, and integrity of the English Bar, without which impartial justice, the most valuable part of the English constitution, can have no existence. From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practise, from that moment the liberties of England are at an end.

A now fairly entrenched principle in English law, it is concerning that recent political narrative has focused itself on criticising politicians who worked previously as barristers, most notably as criminal counsel. Sir Keir Starmer’s caseload as both a defence barrister and Director of Public Prosecutions (DPP) has long been part of political discussion, and he has used it to advance his career when opportunities arose. It is therefore fair that it be scrutinised from the other side. He has faced criticism for decisions he made as DPP about whether to prosecute specific cases and he has a complex legacy. It is understandable why this occasionally crops up in the media and British political discourse.

The alarm bells started ringing much louder, however, when the focus shifted from Starmer’s time as a prosecutor to his work as defence counsel, particularly in his career as a human rights barrister. Johnny Mercer, the current Veterans’ Minister, said of Starmer that voters can “see from his record [in private practice] where his heart lies on important matters.” He refers to cases in which Starmer acted on behalf of suspected terrorists, arsonists and sex offenders, often representing them in international jurisdictions in cases about human rights abuses. This is problematic for two reasons. First, it politicises legal practice by making it a campaign tool, which, as the next General Election approaches, is likely to intensify. Secondly—and much more dangerously for the justice system—it blatantly ignores the long-established principle of the ‘cab rank rule’ and uses against barristers the very foundation of their vocation.

This is not the arena in which to speculate why the current political narrative against Starmer takes this approach, although it is not inconceivable that the reason is something more cynical than ignorance of established legal principles. The focus, instead, must be on the dangers of this slant for public trust in the justice system and the tenets of the Bar. The English common law, the model for many legal systems in the world, endures because of the nature of the system. Aspects such as access to justice, trial by jury and representation without prejudice are all at risk when politicians reduce them to tools for political point scoring. The system can only be effective when the public trusts its ability to carry out its function. It is already overstretched, underfunded and battling political interference; attacking its core values will only exacerbate the problem.

The English Bar has survived many periods of tumult before. Its form, organisation and composition have changed over its long history but its values and principles endure. Advocacy is not only a job but a vocation, one to which many barristers devote their lives. They must be able to practise without political interference, fearing that their work will be used against them and with the same trust and faith in the system as they had as law students, pupils, ‘baby barristers’ and beyond. Sir Keir Starmer can deal with the cut and thrust of political discourse, but the ‘cab rank rule’ must be defended. If it isn’t, the entire system is at risk.


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