The ethics of rebellion
Posted on 01 December 2020
The Metropolitan Police brought public law and personal ethics into conflict in October when it invoked Section 14 of the Public Order Act 1986 to end any assembly linked to the Extinction Rebellion “Autumn Uprising” by 21:00 on 14 October. Anyone breaching the conditions was at risk of arrest and prosecution.
This posed a potential dilemma for legal practitioners with strong views about the need for dramatic change in climate policy and wanting to exercise their right to protest: should they stand up for their moral and social values but face arrest and prosecution by the police, or compromise those values in the name of upholding the rule of law? At face value, a simple decision to assemble in a public place could have resulted in a run in with the law and, therefore, the regulator.
In its current enforcement strategy, the Solicitors Regulation Authority (SRA) promises it “will always investigate criminal convictions or cautions whether or not these relate to the individual's practice, given the importance of rule-abiding behaviour and public confidence in those involved in the overall effectiveness of our criminal justice system.” The regulator adds: “Our key role is to act on wrongdoing which relates to an individual or a firm's legal practice... However, our Principles set out the core ethical values we require of all those we regulate and apply at all times and in all contexts” (emphasis added). This approach is something practitioners will have seen plenty of examples of in recent months, with cases of “private” social media exchanges and behaviour after office hours receiving regulatory attention.
The Principles most likely to be offended by a caution or conviction are:
- Principle 1: the rule of law and administration of justice;
- Principle 2: integrity (taken to mean “the higher standards which society expects from professional persons and which the professions expect from their own members," following Wingate & Others v SRA  EWCA Civ 366);
- Principle 6: public trust and confidence
In relation to Principle 6, the SRA says that it considers “the requirement to behave in a way that maintains public trust is likely to be breached by the commission of a criminal offence, given the high degree of trust which is placed in solicitors and law firms by the public.”
In its guidance on “enforcement in practice”, the SRA explains that “the commission of a criminal offence may engage Principle 1” and that “it is also possible that Principle 1 will be engaged by conduct which is not the subject of a criminal conviction”. The regulator continues: “Any behaviour which indicates a serious disregard for the principle that the law applies equally to all, is likely to be a breach of Principle 1.”
The question then becomes which application of the law to all is the right one according to the regulator?
Whose line is it anyway?
The right to protest and freedom of association comes from the European Convention on Human Rights and is protected by the Human Rights Act, as is the right to express ourselves freely and the right to liberty. Those rights are not absolute and can be limited in certain circumstances, including the prevention of disorder or crime, though any limitations must be justified and proportionate in all the circumstances. The conditions imposed by police on the Extinction Rebellion protest were specifically designed to prevent public disorder and, clearly, the police believed the limitations were justified and proportionate. Herein lay the quandary for potential participants: stand up for rights enshrined in law or obey conditions imposed by law enforcers?
From within the profession, Lawyers for Extinction Rebellion were urging colleagues to think of ways they could contribute to the cause. In its “Declaration of Rebellion” the lawyers stated:
“We stand in alignment with members of Extinction Rebellion and other conscientious protectors around the world. In the context of the climate and ecological emergency we support their right to peaceful protest and participation in acts of non-violent civil disobedience to bring about the system change that we so desperately need.”
“In humanity’s darkest hour, we have forgotten our power. We wish to re-establish lawyers as powerful storytellers with the intelligence, imagination, influence and courage to shape the world around us according to our principles and conscience. We hope that you will pause with us and consider what you want the lasting impact of your life and work to be.”
With power comes great responsibility
Article 23 of the UN Basic Principles on the Role of Lawyers makes clear that “Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly”. Lawyers must be able to exercise these freedoms in a way that complies with the law and the recognised standards and ethics of the legal profession. But how should those standards and ethics be judged, particularly in such an emotive and divisive context?
Lawyers challenging the ban by way of a judicial review argued that the conditions were “in breach of the UK’s obligations to uphold and protect the right to protest under international law and would set an appalling precedent that would be cheerily welcomed by authoritarian states throughout the world.”
When determining the necessity and scope of restrictions on these freedoms, law enforcers (and judicial authorities) are expected to employ a public interest assessment; but what if they don’t do it properly? In circumstances such as these, will the regulator take a pragmatic view when looking at a practitioner’s ethical analysis of whether to protest?
Whilst civil liberties defenders say that participation in a protest must never, by itself, be the basis of a criminal charge or for suspicion of involvement in criminal activity, that is precisely what the conditions imposed by the police would have resulted in.
Though the State ought to recognise that some criminal offences, when applied to non-violent direct action (including, but not limited to, aggravated trespass or squatting), have a chilling effect on the right to protest, it doesn’t always do so. Although criminal law sanctions should only be applied to non-violent direct action in the most serious of cases and, where possible, civil or administrative remedies should instead be deployed, that cannot always be relied on.
After four days, the conditions on the Extinction Rebellion Autumn Uprising assembly were lifted by police, but not before over a thousand people had been arrested, including some who had been charged with offences relating to a failure to comply with the conditions.
Leading from the front
A literal reading of the SRA’s guidance suggests little flexibility in the application of its approach. In its guide to “criminal offences outside of practice” the SRA indicates it “will not generally look behind a criminal finding… This means we will not generally re-examine the evidence or how the finding was made or make enquiries into claims that the conviction was wrongfully imposed.”
The regulator adds that “If a person is charged with a serious offence, we will consider whether controls need to be imposed immediately to address a specific risk prior to any trial.”
In determining what standards and ethics require of a lawyer, and in balancing its role as regulating in the public interest, it is essential the SRA bears in mind that an unrealistic approach may have a chilling effect on whether and how we exercise our fundamental rights.
At least one firm told its staff that it supported the right of its people to join peaceful protests and engage in non-violent direct action, adding that it expected its people to operate within the law; an emboldening statement that may have offered some reassurance to the firm’s employees. In the end though, there is no escaping that ethical decision-making rests with the individual; it is a matter for each of us which principles we decide to follow. In doing so, we would do well to pause and consider the likely consequences of our actions and, in the spirit of rebellion, what we want the lasting impact of our life and work to be.
A version of this article was first published in the November/December 2019 edition of the Solicitor’s Journal (Volume 162 No.10).