The Global Magnitsky Act under which the US sanctions nationals of other countries for serious human rights abuses and corruption was bound to give rise to retaliation.
What constitute human rights in one country may well be prohibited in another and one country’s concept of corruption will be lauded as informed entrepreneurial capitalism in another.
It is all a question of subjective perceptions.
Inevitably, this international tit-for-tatting, is in danger of getting out of control.
Canada executes a US arrest warrant against a Chinese businesswoman Meng Wanzhou for alleged breaches of banking sanctions against Iran, prompting China to detain two Canadians on charges of endangering the national security of the PRC.
In a world devolving into increasingly fractious nationalism it is doubly important to retain perspective.
Undoubtedly, the current Chinese leadership is intent on demonstrating that the world is dealing with a country striving for global dominance, no longer the victim of foreign humiliation.
Anyone who thinks that China can be bullied is seriously deluded.
However, the furore over the legal opinion delivered by members of Essex Court Chambers has all the hallmarks of a steamroller used to crack a peanut.
What I offer, as a practicing barrister, is an analysis of the matter, with a view to putting it in perspective.
Apparently, an organization called The Global Legal Action Network instructed barristers in Essex Court Chambers in London to provide a legal opinion on the topic of treatment of Uighurs in Xinjiang.
I do not know, nor do I profess to know the conditions under which cotton is produced in Xinjiang. Nor do I have first-hand knowledge of the status of the Uighur community, consequently, I do not offer an opinion.
But the basis for the challenged opinion can only have been the information provided to these barristers by the client, The Global Legal Action Network.
Barristers are not detectives, we do not don a deerstalker and magnifying glass and forage for the factual information on which we formulate our opinion, we are obliged to work with whatever data the client provides us.
We do not challenge the veracity of the client but we can, and often do, seek clarification from the client on aspects of the information provided. We have no independent fact finding role or facilities.
What the vast majority of lay people do not understand is that a set of barristers’ chambers is not a legal entity like a limited liability company or partnership. It is a collection of self-employed counsel who share the cost of the accommodation and services that physical occupancy of chambers provides.
We have no legal relationship with the other members either individually or as a body other than the obligation to pay a proportionate share of the rental and other services.
Membership of a set of chambers simply identifies belonging to a group of barristers who practice from the same address.
In vernacular parlance, it is a bunch of gig economy workers who share a postal address and phone number.
The concept of a set of chambers is purely ejusdem generis, having evolved historically as a practical vehicle from which we, as individual barristers, operate our one-man-band practice.
It follows from this that other members of a set of chambers have no responsibility for the acts and omissions of any other member.
A “Chambers” has no legal entity, it is amorphous and no member is vicariously responsible for the acts and omissions of another member.
Under the rules that govern my professional conduct, I am not permitted to refuse a request for my services if it is within my field of competence and my normal fee range.
We call this the “cab rank rule” and it is a vital justification for the existence of an independent Bar, to ensure that no-one, no matter how egregious their behaviour is alleged to be, will go without legal representation.
It is a practical application of the fundamental premise that innocence is presumed until guilt is proven.
It is a reasonable assumption that the barristers practising out of Essex Court Chambers duly fulfilled their professional duty and delivered their opinion based upon the information provided to them by their client.
It is reputed that the opinion characterised the treatment of Uighurs in Xinjiang in the worst possible light.
Given China’s political structure, it is axiomatic that criticism of almost anything that occurs within its borders will offend its central government.
China’s level of sensitivity to criticism has increased exponentially over the recent past.
But what does strike one as somewhat disproportionate is why so eminently powerful a country deems it necessary to overreact to what, objectively, is no more troublesome than a flea bite to an elephant.
In this unhealthy environment, to hold all the members of Essex Court chambers responsible for the professionally solicited legal opinion of one or two of its members is neither legal nor rational, no matter how justifiably aggrieved the central government of the PRC may feel.
Currently, observing the international relationship between China and a variety of Western nations is like witnessing the two cats of Kilkenny, “who fought and they fit and they scratched and they bit…till instead of two cats there weren’t any.”
The end result of sanctioning all the members of Essex Court Chambers, is that a number of entirely innocent men and women are caught in an indiscriminating net.
A fortiori, “doxxing” the families of other members of Essex Court chambers smacks of the worst behaviour, rightly condemned by the courts, of people who vilified the families of Hong Kong police officers.
As those of us engaged in mediation know so well, it is essential to engage in “active listening” if disputes are to be resolved.
If the opposing parties would just pause and listen to their own orations, perhaps they would appreciate that words can and do inflame and that a fire, once ignited, can be very difficult to extinguish.
Albeit seen more from the perspective of a practicing barrister rather than an uninformed layman, this is just my personal take on the matter.