Leading barrister refuses to be intimidated

Dinah Rose QC says she won't pull out of hearing in London next month

A leading barrister has refused to withdraw from a case she is arguing next month, despite receiving “pressure in the form of abuse and threats”.

Dinah Rose QC was first instructed in the case by the Cayman Islands government in 2019. An appeal is due be heard in less than four weeks’ time by five UK judges sitting as the London-based Judicial Committee of the Privy Counsel.

Rose says her clients would be very significantly prejudiced if she were to withdraw from the case now. “It would be an act of serious professional misconduct for me to do so, for which I could expect to receive a severe penalty.”

The Cayman Islands are a British Overseas Territory and a constitutional parliamentary democracy. Their latest constitution was adopted after public consultation in 2009. Section 14 says, in part:

(1) Government shall respect the right of every unmarried man and woman of marriageable age (as determined by law) freely to marry a person of the opposite sex and found a family.

That provision was challenged by two women, Chantelle Day and Vickie Bodden Bush, who want to marry.

Their challenge was dismissed by the islands’ Court of Appeal in 2019. But the court held that same-sex couples were entitled to legal protection that was functionally equivalent to marriage.

Following opposition in the islands’ legislative assembly, the governor used his reserved power under section 81 of the constitution to implement civil partnership legislation.

In a detailed statement (set out in full at the end of this post) Rose says that the question for the Judicial Committee of the Privy Council now is whether the Bill of Rights in the constitution requires the introduction of same-sex marriage:

It is not the Cayman government’s position that the constitution prohibits same-sex marriage. Neither does this case involve the determination of any substantive question as to whether same-sex marriage ought or ought not to be available. The issue is simply whether the Bill of Rights requires same-sex marriage to be made available: in other words, whether the decision to provide it is to be imposed on the Cayman Islands by the court or remains a political question for parliament. The Court of Appeal ruled in the government’s favour on this point.

Last year, Rose became the 43rd president of Magdalen College, Oxford, since its foundation in 1458 and the first woman to hold the post. She says that she and her college have been threatened with adverse publicity if she continues to act for the Cayman government.

In a comment reported by the student newspaper Cherwell, the former South African judge Edwin Cameron accused Rose of “prosecut[ing] a homophobic case to deny LGBTIQ persons in the Cayman Islands equal rights”.

Cameron, a long-standing gay rights campaigner, retired from his country’s constitutional court in 2019. He said:

I do not dispute that everyone has the right to legal representation. I endorse the principle that even unpopular causes and litigants are entitled to counsel. I accept, also, that the Caymans government in denying equality to LGBTIQ people is entitled to secure counsel to prosecute its homophobic case.

What dismays and distresses me is that the president of Magdalen has professionally embraced this cause. She did not have to.

Rose says that Cameron’s position undermines a fundamental principle that goes far beyond the cab-rank rule of the English bar, under which barristers who are are free to do so must take a case that is within their knowledge and expertise:

It is a vital component of the administration of justice and the rule of law that barristers should not be identified with the views or positions of their clients. Otherwise, barristers who are instructed in controversial cases may be subject to abuse and harassment, and deterred from taking them on.

This outcome is contrary to the public interest, because a fair hearing requires that both sides of the argument are properly represented. It is the function of a barrister to make the arguments that may properly be made to a court to advance a client’s case, not to express their own opinions.

It is no answer to this principle to argue that other barristers could be available to take the case. If it is acceptable to equate a barrister with their client, then barristers will be at risk of intimidation if they take on unpopular cases and fewer will be prepared to do so. It is wrong in principle for barristers to be subjected to such treatment.

Rose points out that she has always acted for both sides — for employers and employees in discrimination cases; for claimants and governments in human rights cases.

Although she has largely retired from the bar, she has one other outstanding case to complete — in Hong Kong. In a claim against the territory’s government, she will be arguing in favour of the right of trans people to change the birth-assigned gender recorded on their identity cards.

At the Privy Council hearing next month, the two appellants will be represented by Edward Fitzgerald QC. He said:

As a barrister, Dinah Rose QC was acting perfectly properly in accepting the brief for the attorney general in the Day and Bush case. It would be a breach of her professional duty to return it now. It is an important constitutional principle that barristers should not be identified with the clients they represent.

John Bowers QC, another leading barrister who knows Rose well, added this morning:

It is an important principle that barristers take on all cases within their competence and that the so called “cab-rank” principle is upheld. Otherwise many unpopular causes would not find representation. The barrister does not necessarily sympathise personally with the causes they represent and should not be identified with their client.

Cameron, who is now chancellor of Stellenbosch University, said Rose should “donate the fees she has already received from the case to cause or shelter protecting Caribbean people from homophobic violence”. If she was not prepared to give up her paid brief she should resign as president of Magdalen.

A source at the college predicted that its governing body would not give in to blackmail.

Comment

It’s extraordinary that Dinah Rose, of all people, should be accused of supporting homophobia. She has argued a number of cases which have advanced LGBTQ+ rights, including a recent landmark case in Hong Kong in which she won equal rights to employment visas for same-sex couples.

A barrister of formidable intellect and immense authority, she has never shied away from representing unpopular clients or radical causes. She represented the trade union Unison, for example, in its successful challenge to the lawfulness of employment tribunal fees. A decade ago, she represented Julian Assange in the Supreme Court. Her clients have included terrorist suspects facing deportation to torture, a Christian registrar disciplined for refusing to conduct civil partnerships, prisoners in solitary confinement, the mother of a British soldier who died in Iraq, and individuals and NGOs seeking to defend their privacy rights against surveillance by the state.

Crucially, those who are now attacking the Cayman government’s legal team for acting in this case are giving comfort to those in the UK government who attack “leftie lawyers”. How would those lawyers be able to distance themselves from their clients if Rose were to return her brief now?

As Rose says in the statement I reproduce in full below, the administration of justice is a vital public interest that can be protected only if lawyers are able to act professionally without intimidation or threats.

Statement by Dinah Rose QC

The issue in the case

1.     The Cayman Islands are a constitutional parliamentary democracy. Their Constitution and Bill of Rights was adopted in 2009 after full consultation, and a referendum.

2.       This appeal to the Privy Council has been brought by two women who claim that they have the right under the Cayman Bill of Rights to marry.

3.     The relevant provision in the Bill of Rights states that “Government shall respect the right of every unmarried man or woman of marriageable age freely to marry a person of the opposite sex”.

4.     The Bill of Rights is modelled on the European Convention on Human Rights. The European Court of Human Rights has held in many cases that the European Convention gives no right to same-sex couples to marry, though it does give a right to civil partnership.  Individual states have a margin of discretion as to what form of recognition to give to same-sex relationships, provided that in substance such relationships carry legal protection and rights equivalent to marriage.

5.     The Cayman Islands Government conceded before the Cayman Court of Appeal in 2019 that the Bill of Rights, like the European Convention, gives a right to civil partnership. As a result, the Cayman Islands now have a Civil Partnership Act, providing for civil partnerships which give legal rights equivalent to marriage. This makes the Cayman Islands one of the most progressive countries for LGBTQ+ rights in the Caribbean.

6.     It is not the Cayman Government’s position that the Constitution prohibits same-sex marriage. Neither does this case involve the determination of any substantive question as to whether same-sex marriage ought or ought not to be available. The issue is simply whether the Bill of Rights requires same sex marriage to be made available: in other words, whether the decision to provide it is to be imposed on the Cayman Islands by the Court, or remains a political question for parliament. The Court of Appeal ruled in the Government’s favour on this point.

7.     Accordingly, the issue before the Privy Council only concerns the proper interpretation of the Cayman Constitution. There is an obvious public interest in this issue being properly ventilated and argued.

8.     In the circumstances, the claim that has been made that I am acting for the Attorney General in opposing same-sex marriage is incorrect. The issue is the meaning of the Bill of Rights, not whether same-sex marriage should be supported or opposed.

The professional duties of a barrister

9.     It is a long-standing principle, essential to the maintenance of access to justice and the rule of law that a lawyer is not to be equated with their client, and is not to be subject to pressure to reject an unpopular brief.

10.  The importance of this principle is obvious. The administration of justice requires that parties are able to obtain proper representation, in order that they may receive a fair hearing, and in order to assist the court by the presentation of the arguments that can properly be made in their favour. The protection of this vital public interest requires that lawyers are able to act professionally without intimidation or threats.

11.  For example, Principle 18 of the UN Basic Principles of the Role of Lawyers provides:

Lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions.

12.  In the 1998 Report of the Special Rapporteur on the independence of judges and lawyers,  the Rapporteur explained the rationale for this principle, stating at §181 that:

Identifying lawyers with their clients’ causes, unless there is evidence to that effect, could be construed as intimidating and harassing the lawyers concerned.

13.  The allegation that my participation in this case conflicts with my role as President of Magdalen College is based on the very identification of a lawyer with their client’s cause which international human rights law prohibits. A barrister’s personal opinions or values cannot be inferred from their representation of a particular party.

14.  These are the important principles which underlie the so-called cab rank rule in England and Wales. This is a rule of professional conduct under the Bar Standards Board Code, which specifically prohibits barristers from refusing a brief which they are qualified and available to undertake on the ground that they or a section of the public disagree with or disapprove of the opinions or position of the client. This obligation protects both barristers and the justice system against the mischiefs identified above.

15.  I have personally sought to operate my practice on this basis throughout my career, not only because it is my duty to do so, but also because I consider it to be a pre-eminent ethical requirement of practice at the Bar. I have always acted on both sides: for employers and employees in discrimination cases; for Governments and claimants in human rights and public law cases. I firmly believe that this breadth of experience has enabled me to give better advice to clients of all kinds.

16.  As it happens, I have argued a number of cases that have advanced LGBTQ+ rights, including some pioneering trans rights cases in the 1990s, and a recent case in the Hong Kong Court of Final Appeal, which won for gay couples the right to immigration visas on the same terms as mixed sex couples. I am due to appear in Hong Kong later this year for a claimant who is seeking the right to change the record of their gender on their identity card.

17.  But this is irrelevant. In all cases, my task is the same: to advise and represent my clients, and to put all arguments in their favour that may properly be made, regardless of my own views.

18.  The cab rank rule applies to the Privy Council brief. As an instruction to appear in a court sitting in England in an area in which I was expert, received when I was available to act, I was obliged to accept it. I accepted it before I was appointed as President of Magdalen, and disclosed it to the college at my interview, as a pre-existing professional obligation which I would have to discharge. Whilst the cab rank rule did not apply to the hearing in the Cayman Court of Appeal in 2019, the underlying public policy set out above is of universal application.

19.  I have seen a letter in which it is claimed that I am “willingly fighting to deny equality in the Caribbean”. This allegation is defamatory and false. It mischaracterises both the issue in the case, and my own professional function.

20.  Moreover, pressure is now being put on me to cease to act in this case, on the basis of threats of adverse publicity both for me and the College.   

21.  Were I to succumb to that pressure, I would commit an act of serious professional misconduct. Under the BSB Code, I am obliged to represent my client independently and fearlessly, and I am expressly forbidden to withdraw from a case because of external pressure.

22.  The Code also requires me to act in the best interests of my client, regardless of the consequences for me personally, and prohibits the late return of a brief, save in limited circumstances which do not apply here. The hearing in this appeal is only four weeks away. The case is legally complex, involving over 100 legal authorities running to thousands of pages. The written arguments, which I played a large part in writing, have already been submitted. Were I to withdraw now, I would cause very serious prejudice to my clients’ interests.

23.  The inevitable logic of the argument that is being made, to the effect that fulfilling this brief is incompatible with my role as President is that no practising barrister could serve as Head of any college. It would be impossible for them to comply with the BSB Code of Conduct, and in particular with the cab rank rule.

24.  It would be surprising if an argument that had such a dramatic implication was correct. It is not correct. As I have explained, it is based on a fundamental misconceptions about the nature of a barrister’s role, which go to the heart of the protection of the rule of law and administration of justice. 

Why this case is not like the David Perry case

25.  Leaving aside the question whether the pressure to return the Hong Kong brief to which David Perry QC was subjected was appropriate, there are obvious differences between that case and this one. As explained above, I am instructed to appear in the Privy Council in London in only 4 weeks’ time, representing a constitutional democracy, which is seeking an authoritative interpretation of its constitution, as part of its right of self-determination.

Dinah Rose QC

President, Magdalen College

27 January 2021