Letters roundup: 14 Aprill 2023

The devil should have right

In a recent and widely publicised ‘Declaration of Conscience’, many of our legal colleagues repudiate the cab rank rule (that barristers must accept whatever work comes next without picking and choosing). With it goes the principle that a lawyer is not to be identified with their client’s cause. They say they will not act on behalf of new oil projects or prosecute peaceful climate protesters. They say that lawyers who will do such things are implicated in the causes of the climate crisis.

With respect, our colleagues are badly mistaken. The cab rank rule, and the principle of non-identification that it reflects and preserves, do not serve fossil fuel companies or target climate protesters. Rather, by promoting unobstructed access to justice, they serve the rule of law. This is the principle that (among other things) a legal dispute should be settled fairly after hearing both sides, and according to the law as the judge in the case finds it to be. The problem is not the rule of law, which is an essential constitutional good that we shall need in order to tackle the climate crisis. The problem identified by our colleagues is, in truth, one that is concerned with the present state of the law, which many people believe to be grossly unjust.

The solution is not for lawyers to rule illegitimately, by choosing to which laws they will, and will not, help give effect and on whose behalf. The solution is for everyone to play their part in the full range of political and constitutional processes that shape legislation and the common law in this country. That includes, on the one hand, conscientiously arguing an oil company’s case in court and, on the other, accepting the legal consequences when a peaceful act of protest constitutes a crime. For a lawyer to take this stance is not to abdicate, but rather to exercise, moral choice and responsibility.

As a profession we uphold the rule of law, ultimately not because we must (although that is true), but because it is the right thing to do. The lawyer Sir Thomas More (1478-1535) said of the judge’s duty: ‘If the parties will at my hands call for justice, then, all were it my father stood on the one side, and the devil on the other, his cause being good, the devil should have right.’

If a keen sense of justice motivates our colleagues, then it is because they are fortunate enough to have been formed by a legal tradition that values justice. Now they propose to dispense with that tradition.

Robert Andrews

Solicitor, Penrith

A passage to India

The Bar Council of India (BCI) recently made a landmark decision to permit foreign lawyers and law firms to practise in the fields of foreign law, international legal issues and international arbitration matters in India (on a reciprocal basis of access). This removes decades of restrictions. The rules prohibit representing parties in litigious matters, and foreign firms and lawyers will need to formally register with the BCI.

Adopting an incremental and proportionate approach, the regulations stipulate reciprocity of access, meaning the BCI may refuse to register a foreign lawyer or law firm if the principal country of practice does not allow Indian lawyers or law firms to be registered in their country. This requirement will not affect England and Wales, which has been open to Indian lawyers and firms for temporary practice and permanent establishment.

This is a hugely exciting development which opens up one of the world’s fastest-growing major economies to the international legal community. In terms of anticipated benefits, it will further enhance the Indian legal profession, accelerate foreign direct investment into the country, and encourage innovative collaborations between overseas and India lawyers.

Foreign investors and multinationals will have the added comfort of engaging their preferred lawyers to advise on transactional work such as joint ventures, and mergers and acquisitions, alongside their Indian counterparts.  

With a population of 1.4 billion, India is predicted to become the world’s third-largest economy by 2030, providing a spectrum of opportunities for British businesses to enter, expand and invest in the burgeoning market.

The UK and India are in the final stages of negotiating a comprehensive free trade agreement which will unlock fresh business opportunities in both directions. Several forward-thinking global firms are refreshing their India engagement strategies and carefully evaluating the prospects of opening a local office or entering into strategic tie-ups to leverage wider business opportunities.

Ultimately, the liberalisation of India’s legal services will accelerate global business, trade and investment in and with India, as foreign and Indian lawyers would be able to work more closely together in ways that were previously impossible. While there may be initial challenges with implementation, this historic development should serve to make the sector more dynamic, broader and competitive in the long run.

Amarjit Singh

CEO, India Business Group, London

Cover points

New International Bar Association guidelines on professional indemnity insurance provide a balanced assessment of the issues that dictate whether mandatory or non-mandatory cover provides the best solution in any jurisdiction.

Mandatory PII may increase public confidence and certainty in the provision of legal services, and appears to drive continuous improvement in service delivery and risk management. It may also help preserve self-regulation, avoiding overly onerous regulatory penalties or exemplary damages as a way of controlling poor behaviour. It may, however, lead to a compensation culture driven by litigation funders and claims farmers. Conversely, non-mandatory PII is less likely to price smaller law firms out of the market, or to prevent a significant segment of the public being denied access to affordable legal assistance. What works best will depend on the culture, size and maturity of the particular market.

In all cases, basic levels of PII cover are rarely suitable and legal providers should consider whether the scope of cover and indemnity limits are sufficient for the types of work they undertake.

Ross Baker

Partner, Beale & Co, London; member of the Forum of Insurance Lawyers professional indemnity sector focus team