Gideon Habel revisits the issues for legal and other professionals wanting to show their support for the protests by Extinction rebellion, following the High Court ruling earlier this month which declared the Met Police's section 14 Order unlawful
Last month, Alice Ramsay, from Leigh Day's employment and discrimination department, and I looked at the potential consequences for legal professionals in taking part in the ongoing protests by Extinction Rebellion after the Metropolitan Police’s section 14 Order was imposed on 14 October 2019.
The problem for solicitors and barristers arose because, for as long as the section 14 Order was in place, they were faced with the prospect of breaching their professional conduct rules if they wanted to participate in XRAU events and protests.
The importance of these issues was not lost on the legal sector press. The following week, I was interviewed by Legal Futures about the ethical dilemma facing lawyers torn between wanting to add their voices to the XR protests and their professional conduct rules.
Speaking in Legal Futures, I said “There is a tension between the individual rights of legal professionals protected by the common law and Human Rights Act, and the degree to which a professional regulator can limit those rights to protect the reputation of the profession and carry out its duties as a public interest regulator.”
On 6 November 2019, the High Court declared the Section 14 order unlawful and quashed it because it went beyond the powers given to police under the Public Order Act 1986.
That is reassuring outcome on the facts of the case but it nonetheless leaves any lawyers charged under the section 14 order in an uncertain position.
The fact that the order was declared unlawful after the event will mean that those charges are dropped - but that might not be the end of the story. Solicitors charged with an indictable offence are required to report that fact to the SRA, who might still take a dim view of the conduct of a solicitor who was prepared to break the law - despite the fact that the law allegedly broken was itself ultimately ruled to be unlawful.
I suggested to Legal Futures that “it was up to regulators to assess the public interest in disciplining lawyers should offences arise” and I would suggest that remains the case. Ultimately, each case will turn on its facts, but it would be a particularly draconian regulator that took disciplinary action in these sorts of circumstances without some particularly aggravating factors.