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Barristers can change the world – but as lawyers not “activists”

AnalysisBarristers can change the world – but as lawyers not “activists”

A few weeks ago, I was invited to sign the Declaration of Conscience, in which more than 150 barristers pledged not to prosecute climate activists or act for fossil fuel companies. I was sorely tempted. I struggle, personally, to understand the policy of aggressively prosecuting climate activists while taking few meaningful steps to address climate change. Moreover, many of those who signed the declaration are people whom I have long admired. Certainly, this article should not be taken as a comment on the morality or legitimacy of their individual choices. The declaration caused significant controversy and even provoked calls to re-evaluate the cab-rank rule.

I didn’t sign the declaration. For the same reason, whenever I am asked in interviews if I would describe myself as an “activist lawyer” (as others certainly have!), I answer in the negative. A functioning democracy requires advocates who will act and advise as lawyers, not activists. Providing objective advice and advocacy (so far as we are able to do so) regardless of the identity of the client remains, in and of itself, a profoundly radical and progressive enterprise.

This is not, of course, to suggest that barristers should conform to the caricature of a lawyer willing to “win at all costs”. One of the most valuable things we do is tell a client that their case is (or even unarguable). Judges can have confidence in our submissions because they know we will not mislead the court. When prosecuting or representing public authorities, we do so in the knowledge that our role is not simply to win but to ensure that the defendant receives a fair trial, and the court has all the information it needs to reach the right conclusion. We do all of this even when doing the contrary might help our case. In today’s political climate an independent bar is an important moral and practical bulwark against an ominously authoritarian trend.

The essence of democracy is the recognition that all people are of equal fundamental value. Voting is an expression of this, but periodic elections are not sufficient for real democracy. That requires the recognition of the value of citizens throughout law and society. It requires the separation of powers, political and legal safeguards for fundamental rights, the rule of law, (and probably some form of devolved government). States like Hungary and Poland, (and their cheerleaders in the British press and think tanks) argue for a form of “illiberal democracy” in which individual rights are suppressed and the executive wields almost unchallenged power. As Anne Applebaum powerfully argues in her book, Twilight of Democracy, those states are merely cosplaying as democracies. By stripping away most recognition of the inherent value of the citizen, and making it difficult or impossible for anyone who disagree with the executive to fully participate in public life,  they have created a state in which only one party can realistically win their supposedly “free” elections.

Elements of the UK press, thanks tanks, and even government have, for some time, rejected the premise that all people are of equal value. Governments, finding themselves inadequate to meet the public policy challenges of the day, have used the bully pulpit to scapegoat minorities. Public money has been used to convince the public that (successively) “benefit scroungers”, “illegal immigrants”, trans people, and (most recently) a deep state conspiracy of “activist civil servants”, “remainers”, and the “woke” are responsible for the parlous state of the country. The coercive power of the state has been employed to performatively punish these scapegoats du jour, encouraging people to believe (and act as if) minorities are lesser people than the rest of us.

The environmental crises, that the Declaration of Conscience seeks to address, also flow from this rejection of the democratic premise. The cause of the climate crisis is the willingness of governments to permit and, in many cases, facilitate some people in imposing the costs of their business onto others. Under an ordinary capitalist economy, we keep the income from our activities and pay the costs, the value left over after the costs are discharged is the profit. Polluters, however, are empowered to impose their costs on others. Governments have not only refused to legislate to impose the costs of pollution/climate change on the emitters, but incentivised emissions through subsidies to fossil fuels (the UK has some of the highest fossil fuel subsidies in the Western world). Inherent in this policy (regardless of whether it is made explicit) is the assumption that some people are less valuable others and so can be compelled to bear their costs.

If the value of the citizen is the essence of its democracy then truth-telling is its most important moral value. Truth is both essential to democracy and inherently democratic. Democracy requires public debate, which, in turn requires, a general agreement that it is important for “factual” statements to be connected to verifiable evidence. Without this, discourse loses meaning.

Anyone can engage with a truth-valuing discourse. In such a discourse, convincing one’s audience relies on doing something that is accessible to all: making evidence-based arguments. When we reject truth and embrace a public discourse in which the aim is to convince regardless of the verifiability of one’s claims (what Princeton’s Henry Frankfurt calls a “bullshit discourse”), we hand an advantage to those with the biggest platform (generally those with the most power and resources). Public discourse becomes tilted in favour of the powerful and we cease to interact in democratic debate from a starting point of basic equality.

The UK has embraced “bullshit” discourse. The examples are too numerous to particularise, but it is now depressingly well documented that governments mislead on a daily basis.

The bar stands, at least in principle, as a rejection of this authoritarian trend. The cab rank rule acknowledges the basic equal value of all people. It is a statement that, regardless of one’s background, beliefs, identity, or what one has been accused of, one is entitled to expert representation before the court. At the same time, the courtroom places a premium on speaking truth and forensically testing the veracity of evidence. An independent bar and judiciary are, therefore, not just essential to a functioning democracy but emblematic of the values that today’s proto authoritarians reject.

This, in part, explains the viciousness with which elements of the media and government have attacked lawyers. Headlines like “Enemies of the People” have legitimised violence against lawyers. I, like many others, have received threats. Some threats are carried through, such as the attack on Duncan Lewis by a far-right terrorist. The recent bomb threat to Gray’s Inn ( allegedly intended to intimidate lawyers involved in a money laundering case), while not politically motivated in itself, is symptomatic of an atmosphere in which lawyers making arguments with which one does not agree are seen as fair targets.

Ministers have failed to discourage the targeting of lawyers. Indeed, senior members of the government have made highly problematic statements, blaming “activist lawyers” for a raft of spurious wrongs, even after police warned that their words were encouraging violence. Some have even held meetings with the leaders of the global far right.

This is not, of course, to say that the bar is perfect. Since the Cameron government’s cuts to legal aid, the cab rank rule has been stripped of much of its meaning. It can no longer be said that any person can obtain expert representation. Bringing any sort of claim, for the vast majority, involves significant financial peril. The situation has only got worse with the impositions of prohibitive fees across a range of jurisdictions (particularly in public law). The cab rank rule is now more an ideal than any real guarantee for citizens. But this is a policy failure; it can be remedied (indeed, those members of the Criminal Bar who took strike action last year were trying to do just that).

Yet, if barristers approach our job as activists then the something fundamental is lost. From a practical perspective, a relatively dispassionate approach is often a vital precondition of effective advice or advocacy. More importantly, however, we must not run the risk of the bar becoming another partisan battlefield, in which people’s entitlement to representation is dependent on their membership of the right political, social, or economic tribe rather than their innate value as a person.

The bar is important, not just for what we do, but for the values we hold and what we symbolise. Addressing any of the many public policy challenges we face, the climate crises foremost amongst them, requires a functioning democracy. An effective and objective bar is essential to this. While I have huge admiration for all those who campaign in their spare time (and will certainly, on many occasions, join them if they’ll have me) when we’re on the clock, we do more for democracy by being just lawyers.

Dr Sam Fowles FRSA, Barrister, Cornerstone Barristers,
Lecturer, St Edmund Hall, University of Oxford



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