The basics #18 - planning barristers, Linkedin, and the “cab rank” rule
Spring in bloom. The sun in the sky. It’s a time for transitions. Is it just me, or do you feel like we’re at that time on the roller-coaster - not that I was ever one for roller-coasters, but this is how I imagine it goes - where you’re creaking slowly, surely, inexorably up that steep slope. Mounting adrenalin. Then the silence. A pause. A deep breath. The sense - a little excitement, a little fear - of “what’s coming now”. Well it goes without saying: over the coming months, these pages will be wading gleefully into whatever the main parties have to offer #planoraks in the General Election. I mean, come on! I started blogging in 2020. I’ve had White Papers to write about before. Tweaks to the NPPF. The odd High Court case. But nothing like this. This is the big time. The superbowl. A General Election! With planning policy and reform as a main battle-ground issue. Seriously. I CAN’T WAIT. The blog posts will pen themselves.
But until Rishi tells us when it’s all happening… we sit. And we wait.
While we’re waiting, now for something completely different. Something, you might think, a bit navel-gazing. For which I want to apologise up front. Not just navel-gazing, but also a little awkward. Because. Well: it’s about barristers. 😬. And really it’s about planning barristers. 😬😬. Who use social media. 😬😬😬. A bit close to home. OK. Here we go:
Tomorrow, I’m taking part in a panel at the PEBA conference on “social media in planning”. You may’ve seen a recent legal challenge on the basis that a planning inspector “liked” a post on Linkedin about the inquiry he was presiding over. It’s a topical theme! And, present company excluded, it’s quite the panel. Simon Ricketts of Town Legal, and (obviously) a certain blog all of you already know and love. Vicky Payne, a planner and urban designer whose brilliant and often hilarious Twitter and Linkedin posts are must-read material. Preparing for the session has led me to a little thinking [Must make a nice change, Ed.] - and, to be frank, some soul-searching - about how planning barristers use social media.
Does any of this really matter? I get it’s niche. I get this is not exactly at the top of your agenda of the serious issues afflicting our industry. But… I think it might matter a bit, actually. One of the things that starting this website showed me is the enormous appetite there is in the #plan-o-sphere for information. Places like Linkedin are where lots of us find and consume that information. And when we go there, you may’ve noticed that some of the very loudest voices in the room happen to be those of… barristers.
Why is that so? I have no idea. But it is. Social media posts from barristers about planning are seen by tens of thousands (sometimes hundreds of thousands, if you can believe it) of people every week. By members of the public. Planning officers. Politicians. Consultants. Solicitors. Developers. Civil servants. All kinds of people. These posts are where a lot of people do their principal engaging with (i) new planning issues, and (ii) the planning bar. That’s why I think this topic matters. Because the posts can, I think, get some extra cred on account of their authors’ barristerial status. The posts can set a tone. Help set the parameters of important industry debates. They can, and they do, highlight particular appeals or high court cases for comment or discussion (often - and this is part of the thing - cases the barrister themselves have been involved in).
And listen: there are an awful lot of legitimate, positive and helpful things that planning barristers do on social media. I think. It can be marvellous to get discussions going, build communities, raise the barrister’s profile, draw attention to important happenings… all of that good stuff. And I think the industry benefits from all of us - barristers included - participating in and sharing knowledge/intel on these kind of forums.
Buuuuuuuuuut….
There’s a but. And to explain it, you need to understand the unusual position barristers are in compared to other professionals in the planning system:
Barristers are bound a code of conduct which requires us, as one of our core duties, to “maintain our independence”. And not to do anything “which could reasonably be seen by the public to undermine our independence”.
The code requires us to follow something called the “cab rank rule”. Which sort of does what it says on the tin: subject to exceptions, so long as your “light is on”, you have to take the gigs that come your way. Or, put a little more accurately, so long as it’s an instruction at a fair rate of pay within your area of expertise, you’re not entitled to refuse it simply because of e.g. the identity of the client, the nature of the case, or your own beliefs or opinions of the merits of the client’s cause.
This - to state the obvious - puts barristers in a very different boat to lots of the other professionals in the industry. To give one counter-example, the RTPI code of conduct requires planners to “not make or subscribe to any statements or reports which are contrary to their own genuine professional opinions”. Barristers are a world away from that. We are not entitled to refuse work with reference to our opinions one way or the other.
So unlike e.g. a planner or an architect or most other people on the team, it isn’t about what the barrister actually thinks of a scheme (or a site, or a plan, or reasons for refusal, or whatever). What they “really think” isn’t the point. That is because barristers are, in the end, mouthpieces. Our job is to present the client’s case as attractively as we can - whoever the client may be, and whatever their cause. The barrister might like your scheme. They might hate it. It shouldn’t really matter. Because this core requirement for independence, and the fact that the cab rank rule means that we might just as easily be on the other side of any dispute, means that it’s important the barrister’s personal views (good, bad or ugly) aren’t conflated with those of their client.
What does all of this have to do with social media? In 2020, the Bar Council’s ethics committee produced a document on “Expressing personal opinions to/in the media” which says that:
In 2022, then-Vice Chair, and latterly Chair, of the Bar Council Nick Vineall KC wrote about these risks. He said that:
“It can be very tempting to say- out of court- something positive, something supportive. But by doing so we risk being associated with, or identified with, our client- not by virtue of discharging our function- but by virtue of deciding to make a value judgment on the case.”
He argued that commenting on the outcome of cases you’ve been instructed in is “often highly undesirable” for at least 2 reasons (both of which, I think, are really powerful):
“First, it makes life more difficult for colleagues who are advocating for causes which they do not approve of. For example, someone might say “Barrister X has just won his case for Y. Why isn’t Barrister X saying how pleased he is? It must be because he doesn’t really approve of Y”. That is not fair to Barrister X, nor to client Y.
Secondly, it encourages the association of advocates with specific causes – and that is undesirable and will make it harder for us all to persuade people that the cab rank principle is an important part of the profession’s support for the rule of law. Or put another way, commenting on clients’ causes risks prejudicing your independence.”
More recent BSB guidance on barristers using social media is useful so far as it goes, but doesn’t get into this topic, i.e. of maintaining independence and the perception of independence.
What to do with all of this? Particularly if you happen to be (gulp) a planning barrister who uses social media.
Some starters for 10 - and these really are just tentative and introductory thoughts because my main take-away is that someone who actually knows what they’re doing needs to review this terrain properly, but for what it’s worth I think that:
Barristers should - like anyone else - be able to comment on matters that interest them, including on social media. It is, it seems to me, perfectly legitimate for them to use social media as a way of marketing themselves to clients, and drawing attention to issues, cases, appeals etc. The real challenge is how to balance those legitimate interests with the core requirement to maintain - and be seen to maintain - the barrister’s independence.
For instance: I don’t see any general objection to barristers alerting people e.g. on social media to cases that have happened - including cases they’ve been involved in - describing the case and what the outcome was. The facts. The findings. Maybe even then saying, in a “neutral” way, what the implications of those findings will be e.g. for future cases. Albeit I can see even there that more sensitivity may be required when the barrister themselves was involved. But still.
On the other hand, I definitely see objections to barristers going further than a description of the case, or a “neutral” assessment of its implications, into something more evaluative, e.g. passing a judgment on the quality of the decision, or the scheme, or the site, or the inspector, or the judge, or the nature of the opposing side’s case, or whatever.
Now - where the line is drawn between description and evaluation isn’t always clear. In fact, I think it can be very tricky. There will be easy examples: if you’re crowing about what a fabulous appeal scheme you think you have won, or how pathetic you thought the case against you was, you’re probably on the wrong side of the line. To be clear - I think, in the past (albeit hopefully not for a while now) this is a line I’ve risked crossing myself, and this is partly why I am so eager (you might think too eager) to get into this topic.
And I do think it’s a problem. Because at the moment, different barristers are operating according to different rules they’re more or less choosing for themselves. And it is putting some at unfair competitive advantages. It is prejudicing others for just the reasons Nick Vineall explains above. And where there are examples - sometimes pretty flagrant examples - of posts appearing to compromise the barrister’s independence, that’s the kind of thing that effects public confidence in our profession as a whole.
Here’s a plea - a plea I’ll be making at PEBA tomorrow - we need some proper guidance on this. I think we need it pronto.
That’s more than enough barristerial navel-gazing. Normal service will be resumed next time. Until then: enjoy the springtime #planoraks. Be judicious in your use of Linkedin. Stay well. And, whatever else you do, try your level best #keeponplanning.
