Canny observers of the Cab Rank Rule debate know that the real meat is not to be found in whether the rule is valuable (interesting and more finely balanced than the furore over the Flood and Hviid report would suggest) but in how the Bar and now its regulator have approached the exceptions. The SRA, in the guise of an outgoing director, have taken the unusual line of criticising their fellow regulator in strong terms for dancing to their representative body’s tune. Coming on the back of the LSB’s rather concerning investigation into what is somewhat delicately described as influence it is a severe embarrassment to a regulator which has struggled to win the confidence of anyone (save perhaps chairmen of the Bar Council who, if I recall rightly, have been moved to praise their effectiveness on more than one occasion). This is not because there are not fine individuals working within the organisation (there are). And it is partly because their job is a difficult one (show me a popular regulator and I will show you a popular Lord Chancellor, on March 6th in fact). History will judge, says he portentously, but I cannot see it judging kindly without rather firm change. Their handling of the Cab rank debate is one such example where a different approach may have been wiser. The BSB’s response to the Barrass battery is this:
“It is not the role of the regulator to define how much barristers get paid but it is our role to protect regulatory principles that are core to ensuring access to justice. If the BSB hadn’t acted quickly, the cab-rank rule would have been inadvertently undermined.
“The cab-rank rule was not designed to define acceptable remuneration; it exists to ensure that anyone can access a barrister no matter how unpalatable the case. It is right and proper that we acted to protect a principle that is central to the interests of clients and the proper administration of justice.”
As I understand it, the BSB has permitted barristers to turn down legal aid very high cost cases on the grounds available to barristers in other cases. Broadly these include where the barrister deems their fee improper having regard to the complexity, difficulty and length of the case, and his/her own experience and seniority, and the expenses s/he will incur. On one level this is perfectly reasonable, a business determines its own appetite for income (however meagre it may be under legal aid) and, just as an employee should be free or not free to work, so a business should not be free to take on cases it deems beneath their experience or income requirements. Note though it is a business decision. The cab rank rule is a noble principle trumped by business considerations. Pragmatic it may be, but noble it ain’t.
Some will argue that the exceptions are necessary to prevent the government forcing unprofitable cases on the Bar. A reasonable point too, but as soon as some barristers accept cases at the new rates then this argument starts to look weak. Those who have turned down cases under cab rank exceptions (if it ever comes to that) will have their judgments called into question. If two barristers of equal experience are presented with the same types of case and one accepts and the other refuses on economic grounds then the only distinguishing feature is the efficiency of their business model (their underlying costs). And the BSBs justification for further eroding the cab rank rule has a rather large hole in it. We will see soon enough whether this is true or not and thus whether the BSB relaxing of the rules was hasty. The reference to inadvertently breaching the Cab Rank Rule may turn out to be deeply ironic. Legal aid is almost certainly the main area where the Cab Rank Rule does real work. Exceptions here are the end of it as a rule, and the signalling of it as an aspiration.
The final argument that many will want to make is that the legal aid cuts will damage quality. That is very likely to be true, but relaxing the cab rank rule does not really seem to me a legitimate way of dealing with that if – as I suspect- barristers will take these cases at reduced costs even though they are not required to. What the Cab Rank Rule relaxation does do is remove one barrier to those organising a boycott of VHCCs and further strengthen the ability of barristers to put their business needs before the nominally fundamental principle of Cab Rank. It is possible to see public interest benefits in both positions, but whether those interests are genuinely and independently verified, and the fact that they align so closely with the Bar’s political position give rise to significant and legitimate concerns.