Conduct Committee

Lord Goldsmith Excerpts

Tuesday 20th April 2021 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, I support the amendment proposed by the noble and learned Lord, Lord Garnier. First, I congratulate my noble friend Lady Donaghy on the clarity with which she has presented this report, and I hope she knows how much I respect her opinions. I am not going to speak in any detail to the amendment of the noble Lord, Lord Balfe, as time will not permit, save to note that the points he raises, whether one agrees with his proposed endpoint or not, may support the need for further consideration, as the noble and learned Lord, Lord Garnier, is hoping for.

Predictably, I want to focus my remarks on the specific position of lawyers. I am not going to develop at any length the arguments in relation to arbitrators, because that, I anticipate, will be adequately done by others, save to say this. The United Kingdom legal system—I suppose one could say industry—is highly respected. One reason for this is the availability of immensely experienced and professional arbitrators. For cases involving states, it is particularly valuable that those arbitrators include retired UK judges, some of whom we have the benefit of having in this House. Foreign states, as well as other foreign parties, are happy to entrust important decisions to such arbitrators, who they have confidence are not only expert but utterly independent and objective.

I fail to see the concern of noble, and noble and learned, Lords of this House about accepting an appointment as an arbitrator. On that ground alone, the amendment of the noble and learned Lord, Lord Garnier, deserves support. But I believe it deserves support more widely when dealing with the position of lawyers who advise or represent foreign Governments. Here, I disclose my interest. Through my firm, I act regularly for and against Governments, which is a feature to which I will return. I do not lobby on behalf of foreign Governments. I act as a lawyer advising or representing them in actual or potential legal disputes. Of course, as I imagine others will underline, other rules prevent misuse of my position here. I do not believe I have ever spoken in a debate in this House where a foreign government client has been involved.

As for what I do, I may represent them in court, as I did a Caribbean Government in their own courts, and in the Privy Council here in a dispute about their Parliament. I may represent them in international courts, such as the International Court of Justice, in a dispute between several states in the Middle East. I also act in arbitrations, particularly in disputes about the way a state has treated the investments of the nationals of another. This is an important modern device, which has taken the place of gunboat diplomacy when states would seek to intervene to protect the interests of their nationals.

Those representations are mostly in the public domain, and I have therefore disclosed those voluntarily following the first report of the committee. But some are not in the public domain, and some are regarded by the states involved as highly confidential. I am well aware, from experience, that a Government may insist that there should be no disclosure of services in such a matter. Many of them are, as I say, highly sensitive.

Generally, the fees paid are not in the public domain. That matter can also be regarded as very confidential. At least while the dispute is active, the state may not want revelation of what it is paying to foreign lawyers. Under our law and the professional rules of conduct that govern barristers such as me, we are not allowed to reveal that information, save where required by law or with the client’s consent, as the report fully recognises.

The report rightly recognises that the professional duty cannot be overridden, but proposes to deal with that by requiring a client’s consent. That would have to be in advance, as recognised at paragraph 13. It is suggested that not many clients would be deterred. It seems that was based solely on the view of one former holder of high judicial office. I do not think any other evidence was presented. But, very respectfully, I beg to differ. In the field in which I practise, there is almost always significant competition for assignments from different law firms, and, because this is international work, from law firms and lawyers from different countries. If the new disclosure rule comes in, I would have to make it clear, in any pitch or offer, that the client would have to agree to disclose not only that we would be representing them, which in many cases might become public knowledge in due course, but the fees. They may well find that unattractive, because they would be concerned that this information could be misused, for example by political opponents in their own countries. From my experience, I believe that many clients would be deterred.

It goes further than that, because, as I practise in an international law firm, I cannot simply take the view that I can forgo such assignments with equanimity or weaken the showing that we make to potential clients by excluding myself from their possible representation. I have anxiously considered what I should do if this proposal becomes a requirement. I have not finally decided, because for one thing I want to consider all that is said in this debate and its outcome, but I am of the provisional view that I would need to take leave of absence to avoid the dilemma of letting down my partners and colleagues. That is the point that concerns me.

I want to be clear to your Lordships that I am not saying this in terrorem. It is for your Lordships’ House to determine what is best for the House, for Parliament and for the country, and I unreservedly accept whatever decision it reaches. But if that is the route that I determine to take, I thought it right that your Lordships’ House should know why, not least because it would require me to cease chairing the International Agreements Committee, as it is currently my honour to do. I hope it does not come to that, and that the amendment of the noble and learned Lord, Lord Garnier, enables more thought in these difficulties areas, but I thought I should tell your Lordships that that is where I am. I do not think I will have another opportunity.