Professional denouncement for private opinions

We need to think twice before saying chambers can’t take on a barrister due to private opinions previously expressed, says Andrew Tettenborn

Artillery Row

“The Bar,” says the Bar Council’s promotional literature, “is a diverse profession which welcomes individuality and seeks to recruit the brightest talent, irrespective of background.” Well, up to a point. Where political and social opinions are concerned, it seems a large exception may apply.

Mr Holbrook’s view wasn’t everyone’s cup of tea, but was lawful, clearly expressed privately and not on behalf of Cornerstone

Four months ago in the Critic, public law barrister Jon Holbrook described how he had lost his place in chambers – the co-operative office arrangement under which individual barristers practise on their own account – because of a Tweet. Commenting on a recent human rights episode where a school accepted that it had been wrong to object to the hairstyle of a black student known as RW, he had said this:

“The Equality Act undermines school discipline by empowering the stroppy teenager of colour”.

RW’s mother complained to his chambers, Cornerstone, which demanded immediate retraction. When Mr Holbrook refused, Cornerstone expelled him. It announced that the Tweet had been “particularly offensive”, and unreflective of their views, which unequivocally condemned discrimination “in all its forms.”

This was a dispiriting development. Mr Holbrook’s view wasn’t everyone’s cup of tea, but was lawful, clearly expressed privately and not on behalf of Cornerstone, and supportive of neither prejudice nor discrimination. Cornerstone could perfectly well have said that it corporately took no political position and tolerated diversity of opinion. Instead, it fairly clearly chose to see matters through a crude public relations lens. It was simpler to get rid of the problem, even if this meant expelling a member for no better reason than that he had expressed controversial social views that others might find offensive.

Cornerstone’s action has one mitigating feature. Barristers must have some right to decide who they prefer not to associate with professionally; and whatever the climate at Cornerstone there was nothing to stop Mr Holbrook finding a more tolerant set prepared to admit him. (In fact he chose to withdraw entirely from the independent Bar, but that is by-the-by). More recently, however, things have taken a much more disquieting turn.

Last month Mr Holbrook learnt that he faced formal professional misconduct charges from the Bar Standards Board, potentially leading to a large fine or disbarment. The tweet in question was, it was charged, “designed to demean or insult” RW, and therefore broke the rules in the Bar’s Code of Conduct, as tending to “diminish the trust and confidence” which the public placed in him or in the profession, or might “reasonably be seen by the public” to undermine his honesty, integrity and independence”.

Not content with this, the Board has also accused him of breaking these same rules in a further 17 tweets over 18 months. These latter were a mixed bag. Some criticised UK authorities for deliberately ignoring difficulties caused by an unassimilated Muslim minority in the name of multiculturalism or a fear of perceived Islamophobia. (One such, incidentally, did nothing more than quote Sir Roger Scruton and ask for counter-arguments). Others criticised the media of glossing over crimes committed by Muslims, or suggested that free speech was being sacrificed to appease Muslim sensibilities. One questioned the good faith of some soi-disant refugees; one suggested that equal pay legislation disproportionately benefited wealthy career women, especially at the BBC. One had criticised the Bar Standards Board itself for showing political partiality by supporting London Pride. All these, it was said, were “were designed to demean or insult others including Muslims, homosexuals and women”, and might be “considered distasteful or offensive by others”.

At stake here is not whether a member of the Bar can be a member of particular chambers, but his right to practise law at all, anywhere

We don’t know what the Board will decide. Mr Holbrook has denied the charges, and I certainly don’t want to prejudge matters. But the fact that these proceedings were brought at all raises a number of serious issues. This is especially true since at stake here is not whether a member of the Bar can be a member of particular chambers, but his right to practise law at all, anywhere. We need to think at least twice before saying that no chambers should be allowed to take on a barrister, however much they otherwise like him, on account of opinions previously expressed by him in a private capacity.

And here the serious difficulties arise.

For one thing, it’s all very well for the charge sheet to talk of “demeaning” or “insulting” people. But unpack these terms, and in this context it’s hard to see that they mean much more than saying things people might strongly disagree with (as with gay people and London Pride), suggesting that some persons are undeserving complainants (as in the case of the BBC women, or RW herself), or referring in passing to the fact that members of particular communities misbehave (as with the criticisms of government and media reaction to wrongdoing by Muslims). You may or may not agree with what Mr Holbrook says. He may very possibly be wrong-headed. But things are coming to a pretty pass if as a lawyer he is forbidden to air views of this kind, not infrequently seen in the Mail or the Telegraph, in a private capacity.

Still more so with the next complaint: his comments might be “considered distasteful or offensive by others”. Since almost anything is capable of offending someone somewhere, this is a phrase that could cover almost any contentious statement whatever by a member of the Bar (including, incidentally, the views expressed frequently and publicly by barristers of woke or left-wing persuasion, which are quite rightly allowed to pass into currency as part of vigorous political discourse). It also potentially paves the way for a hideous heckler’s veto, under which any interest group could place a particular view off-limits to the Bar simply by claiming to be deeply offended by it. (Just consider the phrase “trans women are not women” and the offence caused by that to trans activists).

Further, while the interpretation of the Bar’s Code of Conduct can be a recondite art, it’s a little mysterious how controversial and even offensive statements on matters of general interest could be seen to undermine a person’s apparent honesty, integrity and independence. Indeed, if one really wanted to be contrary, one could raise a respectable argument to exactly the opposite effect: a lawyer who held strong views but dissembled in public on such matters in order to avoid offending people would at least have a case to answer on charges of dishonesty, insincerity and dependency on others’ opinion. But perhaps it is best not to go down there.

Things are coming to a pretty pass if as a lawyer he is forbidden to air views of this kind, not infrequently seen in the Mail or the Telegraph, in a private capacity

Equally curious is the notion that tweets like Mr Holbrook’s can be apt to diminish the trust and confidence placed by the public placed in him or his profession. As regards trust in him, everyone knows that barristers are human: like everyone else, they have views, and often strong ones, on political and social matters. Most intelligent persons realise that this there is no more reason to think that this will affect a barrister’s professional judgment any more than that of an architect, an accountant or an actuary.

Regarding trust and confidence in the profession, moreover, matters become truly bizarre. If the Bar allows someone like Mr Holbrook to profess particular (lawful) political or social views, even if offensive to some people, one might have thought this raised its status among right-thinking people as a tolerant and inclusive organisation. But apparently no: the good name of the profession is to be safeguarded not by condoning maverick opinions but by forcibly suppressing them. Put more succinctly, tolerance has now become vice and intolerance a sign of virtue. This might seem odd to the rest of us. But maybe it takes a lawyer to explain how it makes perfect sense.

We shall have to wait and see the result. But having brought these proceedings, the legal profession will have to practise some fairly nifty footwork if it is to avoid the accusation that it prefers the convenient squashing of inconvenient political opinions to a robust defence of lawyers’ freedom to speak their mind.

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