The ethics of rebellion

Should lawyers exercise their right to protest and risk arrest or uphold the law and compromise their values? asks Emma Walker

The Metropolitan Police brought public law and personal ethics into conflict in October by invoking section 14 of the Public Order Act 1986 to end any assembly linked to the Extinction Rebellion (XR) ‘autumn uprising’ by 21:00 on 14 October.

Anyone breaching the conditions of the order 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 who wanted to exercise their right to protest.

Should they stand up for their moral and social values but risk 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 led to a run in with the law and, as a result, the regulator.

Pervasive principles

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”.

It 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”.

Practitioners have seen plenty of examples of this approach in recent months, with cases of private social media exchanges and behaviour outside of office hours attracting regulatory attention.

The SRA 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 (meaning “the higher standards which society expects from professional persons and which the professions expect from their own members” following Wingate & Others v SRA [2018] EWCA Civ 366).
• Principle 6: Public trust and confidence. In relation to Principle 6, the SRA says 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 it could also be engaged by conduct which is not the subject of a criminal conviction. “Any behaviour”, states the regulator, “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 is then: according to the regulator, which application of the law to all is the right one?

Whose line is it anyway?

The right to protest and freedom of association under the European Convention on Human Rights is protected by the Human Rights Act. The right to express ourselves freely and the right to liberty are similarly protected.

These rights are not absolute and can be limited in certain circumstances, including for the prevention of disorder or crime, though any limitations must be justified and proportionate in all the circumstances.

The conditions imposed by the police on the XR protest were specifically designed to prevent public disorder and the police clearly believed the limitations were justified and proportionate.

Herein lies the quandary for potential participants: do you stand up for the rights enshrined in law; or obey the conditions imposed by law enforcers?

Within the profession, lawyers for XR were urging colleagues to think of ways they could contribute to the cause. In its Declaration of Rebellion, the lawyers state: “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.”

It goes on: “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.”

Power and great responsibility

As Article 23 of the United Nations’ Basic Principles on the Role of Lawyers makes clear, “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 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?

While defenders of civil liberties say that participation in a protest must never, by itself, be the basis of a criminal charge or of suspicion of involvement in criminal activity, that is precisely what the result of the conditions imposed would have been.

Though the state ought to recognise that some criminal offences have a chilling effect on the right to protest, it doesn’t always do so. Criminal law sanctions should only be applied to non-violent direct action in the most serious cases. Instead, civil or administrative remedies should be deployed where possible.

After four days, the police lifted the conditions on the XR autumn uprising assembly, but not before over a thousand people had been arrested, including some who were 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”.

Furthermore, the regulator states 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”.

It is essential the SRA bears in mind that an unrealistic approach to the issues may have a chilling effect on whether and how we exercise our fundamental rights.

At least one firm told its staff it supported the right of its people to join peaceful protests and engage in non-violent direct action.

It also said it expected its people to operate within the law – an emboldening statement that may have offered reassurance to the firm’s employees.

However, there’s 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.

Emma Walker is a regulatory and disciplinary solicitor at Leigh Day leighday.co.uk