Lord Garnier
Main Page: Lord Garnier (Conservative - Life peer)Conduct Committee
Lord Garnier Excerpts
Lord Garnier
As an amendment to the Motion in the name of Baroness Donaghy, to leave out all the words after “that” and insert “this House thanks the Select Committee for its Report Registration of members’ foreign interests: follow-up (9th Report, HL Paper 255), but returns it to the Committee for further consideration.”
Lord Garnier (Con)
My Lords, I begin by thanking the noble Baroness, Lady Donaghy, for introducing this debate. She brings to our proceedings a decade of experience in your Lordships’ House, but also valuable experience gained from her work outside Parliament. The noble Baroness has been an administrator at two universities; has had senior roles in the trade union movement, including as president of the TUC; has chaired ACAS and the Committee on Standards in Public Life; has been on the Low Pay Commission; and has undertaken an inquiry into work-related deaths in the construction industry. In the noble Baroness, we see why this House is what it is and why it works, and why we need to be cautious about disabling Members of this House from participating in its work.
The House can draw on the experience of people from every corner of the country and walk of life. Some are politicians and former Members of the other place, and some are from the professions, religious ministry, academia, public service in government, the Armed Forces and the judiciary, or business or rural affairs, but we bring to this House our own individual and conjoined experiences, which inform the arguments we deploy in what we believe to be the best interests of the country and its governance.
I dare say that today’s task is not one that the noble Baroness had longed for since her arrival in this House. I am not exactly ecstatic about moving my amendment, but I hope to provide a bridge across which the House as a whole can travel in a spirit of mutual respect, thoughtfulness and compromise. I move this amendment not in a spirit of criticism but of collegiality. I want the problem identified by the Intelligence and Security Committee and the Conduct Committee dealt with in a way that satisfies, on the one hand, the interests of your Lordships’ House—one self-governing half of this bicameral Parliament—and, on the other hand, the public interest that parliamentarians do their work unsullied by insidious external influences.
There is another linked but fundamental question: should that which could lead to a change in the constitution of your Lordships’ House come about as the result of a recommendation of a committee comprising of four lay members and four Members of this House? Is not the altering of the constitution of the House, and thus of Parliament and the country, a matter for legislation to be considered by Parliament as a whole? To follow the committee’s recommendations now is to set them in stone—I have heard what the noble Baroness said, but I believe that it will set them in stone—but if we hold off a while, we can still agree with her later.
I refer to my own interests in the register, although I stress that this debate is not about me but about the House of Lords. Although I am a barrister in chambers that do a great deal of commercial arbitration and litigation, some of which involves overseas companies, Governments and government agencies, the international element of my own practice has only occasionally involved advising foreign governments or agencies. Mostly, it involves advising foreign companies or private individuals and, in cases involving the European Court of Human Rights, acting against foreign Governments. In this jurisdiction, I have acted both for and against the Government, and have even had the experience, while representing a former Prime Minister, of referring to the current Prime Minister as “the defendant” and subjecting him to sharp criticism in open court. I am also a consultant to an international firm of solicitors which, among other things, advises not only the United Kingdom Government but foreign Governments. I have worked on those matters but, as I do not know what the firm charges its clients, I have no idea how I could apportion my retainer, which also covers work not caught by the follow-up report.
It would be naive not to realise that this debate has been affected by perceptions and, perhaps, the reality of misconduct in public life. There is obvious public concern, lately aired in the media, about what is called the Greensill Capital affair, but it has nothing whatever to do with this debate, or what concerned the ISC in 2020 or the Conduct Committee this year or last. But that concern is a powerful reason why I suggest we postpone consideration of the committee’s recommendations on the disclosure regime that it seeks to impose upon your Lordships’ House. The chairman of the Commons Public Administration and Constitutional Affairs Committee has announced an inquiry into lobbying. There is the Boardman inquiry, and the noble Lord, Lord Tyler, has a Topical Question this Thursday. Of course, none of this was in the minds of the Conduct Committee, but its reports are being read as though it was. I suggest that a pause will assist, not prevent, proper consideration of the follow-up report.
Our consideration of the questions posed by the report will, unless separated by a margin of some months, be skewed by two elided questions. They describe conflicting matters of public interest, but we are being asked to resolve the conflict in a rush and against a difficult backdrop. Our task is by no means impossible and we can do it if, as a House, we give ourselves time to think it through.
First, should Members of your Lordships’ House who are not doctors but, for example, lawyers, architects, accountants, or practitioners in other entirely legitimate areas of work, have to identify and declare their earnings from foreign Governments or foreign government entity clients, thus having to choose whether to break their obligations of professional confidence, or stop working in order to remain here, or take leave of absence or retire from the House altogether in order to carry on with their lawful professional lives? Secondly, how does this House prevent its Members acting as the covert mouthpiece of a foreign Government, particularly one whose interests conflict with those of our own country?
We do not need to compel the former in order to prevent the latter. As recognised by the ISC, our country is a target for Russian disinformation. There will be other malign state actors too. We cannot be complacent about hostile states deliberately trying to influence our democratic processes, but making me say whether I have advised an EU member state’s justice ministry or a Commonwealth country’s law commission about the English deferred prosecution agreement system, and what I was paid to do so, is not going to stop President Putin suborning our democracy.
This amendment is not an excuse for a lawyers’ whinge, nor was it tabled to criticise any of your Lordships who have chosen, for whatever reason, not to engage in paid work outside Parliament. But nor should my amendment be dismissed out of hand just because lawyers, but others too, will be affected by the report’s proposals. We are an unsalaried House, and I am sure that everyone contributing to this debate has the interests of Parliament and the public in mind.
In June 2020, the Conduct Committee made recommendations about Members’ earnings from foreign Governments, dealing with corrupt or repressive regimes, and restricting parliamentary activities by those who had been on overseas visits paid for by a foreign Government. But that was all about lobbying, and mirrored the ISC’s concerns. With respect, being paid to lobby on behalf of Russia is quite different from being paid to advise or represent a client, albeit a governmental one, in a commercial or other legal dispute.
As Solicitor-General I was precluded by the Ministerial Code and by my professional obligations from saying whether I had advised my client, the Government, on a particular matter, still less what that advice was. If I now appear in open court, subject to an anonymity order, the need to keep confidential the name of my client falls away, but to require me to disclose their name on first payment, or in a matter that never reaches court, would place both me and my client in difficulty. To require the parties to an international commercial arbitration—a confidential way of settling disputes—to surrender their privacy, or to make it impossible for them to employ Members of this House as advocates or arbitrators, will not bother Putin. It goes much further than the rules of the other place, whose membership is salaried, with large office costs allowances, transport costs and a second home allowance. Let us pause and return to this soon, but later.
The Deputy Speaker (Baroness Pitkeathley) (Lab)
I should inform the House that if the amendment in the name of the noble and learned Lord, Lord Garnier, is agreed to, the amendment in the name of the noble Lord, Lord Balfe, will be pre-empted.
Lord Garnier (Con)
My Lords, as I did at the outset, I once again thank the noble Baroness for her introduction to this debate and, indeed, for her wind-up just now. It was a model of moderate and—to some extent, but not altogether—persuasive advocacy. That having been said, it is right that we should acknowledge, as I think I fairly pointed out in my own remarks a little while ago, that this is not a lawyer’s whinge. The fact that a number of lawyers who are Members of this House have spoken is not something we should be ashamed of, nor retreat from; they demonstrate the practical consequence of what could happen if this proposal goes through.
As has been pointed out by the noble Lord, Lord Adonis, noble and learned Lords, and Members of this House who are lawyers or in other professions, it is fair to say that there is a genuine conflict between the public interest in transparency about what we do in this House and the public interest—it is a public interest, as the noble and learned Lord, Lord Neuberger, most correctly pointed out, aided by the noble Lords, Lord Grabiner, Lord Marks and Lord Pannick—in the private relationship of confidentiality between a lawyer or any other professional, be it a doctor, an architect, an accountant, even the great translator, the noble Lord, Lord Mann, and their client. Without that confidentiality being maintained, respected and understood by this House, there will be an undermining of the rule of law and all that goes with it.
It is not something we can set aside lightly. I accept, however, that it can be set aside if it is done deliberately by a House of Parliament—this House of Parliament—having advised itself and considered where it believes the balance between those two public interests should be resolved. Clearly, the sense I get this evening from those who have spoken in this debate is that this House considers that the public interest in transparency outweighs the public interest in permitting the continuance of a Member of this House, as a lawyer, maintaining and seeking to preserve—and indeed upholding—the privacy and confidentiality of his or her relationship with a client, no matter whether that client be a foreign state or a private individual.
Let me just touch upon the expression “a foreign state”. The report, at paragraph 8, in my view tendentiously, uses the phrase “a foreign power”. It takes me back to John Buchan novels. Of course, I suspect that that expression was used deliberately because it creates an impression. Indeed, it created a sufficient impression on the noble Baroness, Lady Falkner, that she went one stage further and drew our attention not only to lawyers working for a foreign power but to lawyers being bought by a foreign power. She thus ignored, if I may say so with the greatest respect, that proper relationship between a lawyer who is instructed to act independently and to use his judgment as an officer of the court, and the client—it, him or herself. One would no more accuse the noble Lord, Lord Pannick, of being an agent for a murderer because he defends a man on a charge of murder at the Old Bailey, than one would accuse him of being an agent of some foreign power because he has been instructed to represent it in an arbitration.
We need to use our language carefully in debates such as this, because the backdrop to it—albeit that the noble Baroness, Lady Donaghy, very properly and deliberately, did not enter into this arena—is, as we all know, sleaze: Russian suborning of Members of both Houses of Parliament for malign political or diplomatic ends, and the recent problems caused by the David Cameron and Greensill Capital matter. They are, as I said at the outset, wholly irrelevant to what we are here deciding—and the noble Baroness was perfectly correct to distance herself from those—but some of us, for good rhetorical reasons, no doubt, have decided to conflate those questions. That, of course, is entirely their right. It is not, to my mind, attractive, but that is of course their right.
There is a difference, as I said, between those two public interests, and this House has a right to decide which takes precedence in this particular matter. There is a difference between making a declaration and making a registration of one’s interests, of all sorts, and it is not a declaration or registration that applies only to complaining lawyers. It applies to all of us. It particularly applies to all of us who have outside, paid interests.
There is also a vast difference—and here, I bring the debate back to an area where the noble Baroness did not want to go—between spivery, or commercial paid lobbying, and legitimate commercial activity. We heard that from the noble Viscount, Lord Goschen, and we heard it from a number of other Members of this House who may or may not be lawyers, and some who most definitely are.
I want briefly to touch on what I thought was one of the most effective contributions this evening: that of the noble and learned Lord, Lord Hope. He gently but hugely persuasively pointed out that, despite the enthusiasm of the majority of those who have spoken tonight, there are likely to be unintended consequences of swallowing this report whole. I am grateful that the noble Baroness, having no doubt listened to him, is prepared to keep an open door—I think I quote her correctly; she used that expression or something similar—so that, even if this Motion goes through unamended tonight, the matter is not closed.
I hope that other members of the committee and all Members of this House will agree with the noble Baroness because, if we are to shut this door so that good, honest, reputable Members of this House such as the noble and learned Lord, Lord Goldsmith—he did not terrorise me when he said that he might have to take a leave of absence—feel that they have no option but to depart this place, it will not hurt them but it will undermine and damage the standing of this House. We benefit from the presence of great lawyers, architects, accountants and professionals of all sorts in this House; we are not diminished by it. I urge this House: please beware the unintended consequences, take the noble Baroness at her word and allow us, if this does not pan out well, for the benefit of the public and this House—forget the benefit of the lawyers—to make sure that the door of this committee is open and never closed.
When he was the majority leader in the United States Senate, Lyndon Johnson said that a politician needed to know how to do only one thing: add up. I have done a little calculation. It would be unwise, even Balaclava-like, to charge through the Division Lobby this evening—much as I would enjoy the punch-up. Bearing in mind both what the noble Baroness has said this evening about her door being open and the damage that would be caused if this were put to a vote and decisively defeated, it would be better for me to seek the leave of this House to withdraw my amendment.
I do so with gratitude to all those who have spoken in this debate on both sides of the argument. This debate needed to be had and, if we are to be told what we are to do, who we may talk to and who we may work for outside this House, well, we must have the debate publicly in this Chamber. I would like to see it done via legislation but that is a different matter, and I am delighted that we have done it here and not just in the close confines of a small conduct committee.
I have spoken too much and too often. I have so many interests to declare, having listened to what has been said tonight, that I may have to take a leave of absence—at least until next week. I beg leave to withdraw my amendment.