An old theme, maybe, but an enduring one. How should the Bar Standards Board, as a professional regulator, aim to strike the balance between barristers’ right to speak freely and their professional obligations?
On the one hand, I place a high value on free speech as a guarantor of free enquiry and as a constraint on arbitrary power. But I also think that professional people are bound by higher standards than the general public and owe it to their professions and to the people they serve to think about the potential impact of how they exercise that right in relation to matters that touch on the profession.
My view is shaped by spending thirty years as a senior Civil Servant. Because the Civil Service must serve governments of all parties, making public statements on political matters is simply incompatible with the job. Both Ministers and the public need to be confident that Civil Servants will provide independent advice about how governments can implement their policies untainted by ulterior personal loyalties or beliefs. Barristers are not under the same political constraints as Civil Servants and I see no intrinsic problem with individual barristers making public statements about controversial public policy matters. But that does not mean that barristers, and indeed other professionals, have complete license. The right to freedom of expression under Article 10 of the European Convention on Human Rights is, after all, qualified by the need to balance other rights. Those balancing rights include the rights and reputations of other members of the profession and of consumers of professional services.
This points to two main respects in which, at least in my view, professionals, including barristers, must be circumspect in exercising free speech. First, professionals must take care not to undermine public confidence in their own profession. Medical professionals should not, for example, make unevidenced public assertions about the safety or otherwise of medicines, vaccines, or treatments. Similarly, barristers should think carefully about statements which might compromise the integrity of the justice system. And, second, professionals must sustain the confidence of the public to whom they provide services. This is especially important for barristers who are under a duty not to discriminate and must, under the Cab Rank Rule, take on any client or case for which they are professionally qualified and able to assist.
This does certainly not mean that barristers and clients must always see eye to eye. Nor does it mean that barristers cannot express views with which some (or even many) clients may disagree or which they may even find offensive. It does, though, mean, I think, that barristers should not express views in such a way as to give citizens of particular backgrounds or views legitimate grounds for doubting their or the profession’s ability to represent them effectively and dispassionately.
All these considerations are well summarised in the guidance we published in September 2023 on barristers’ use of social media.
Any individual case will always turn on its own facts. How far was a barrister speaking in his or her professional capacity or, at least easily identifiable as a barrister? How far were the views expressed political in nature (where we should allow more latitude)? Above all, how intemperate was the expression of the views and with what potential impact on public confidence in the profession and in the justice system?
Whether a line has been crossed into a potential breach of the BSB Handbook will always be matters of judgement for the regulator taking into account the law, including caselaw developments in this area. But barristers too must exercise judgment when speaking or writing publicly on controversial matters.
Professionalism carries responsibilities as well as rights.
Mark Neale, BSB Director General
