Conduct Committee

Lord Grabiner Excerpts

Tuesday 20th April 2021 Lords Chamber

[Lord Grabiner (CB) [V]]

My Lords, I disclose my interest as—I am afraid—another practising barrister and occasionally as an arbitrator in international commercial arbitrations. In my career, I have acted for and against sovereign states, and I have participated in arbitrations to which foreign states have been party. Currently, I have no such instructions or appointments.

Essentially, I agree with all the points made just now by the noble and learned Lord, Lord Neuberger of Abbotsbury, but, personally, the recommendation of the committee would not be a problem for me and I could live with it. However, I respectfully suggest that serious points of principle arise here, including the points that have been made.

In its November 2020 report, the Conduct Committee recognised the duty of confidentiality owed by lawyers to their clients and by persons, who are often but not invariably lawyers, appointed to act as arbitrators. It proposed—this has been referred to before, but I have a slightly different point to make—that affected Members of your Lordships’ House would be able to apply for an exemption from the registration requirement, and that, if granted exemption by the Registrar of Lords’ Interests,

“the member would … register the type of client”

but would not be required to name the client. That seemed a sensible compromise which would, under the supervision of the registrar, improve transparency and, at the same time, respect the confidentiality concern. I am afraid that I was rather surprised by the follow-up report, which concluded

“that the public interest demands that there should be no exemptions to the scheme”.

With great respect to the majority of members of the committee, that is merely an a priori assertion. I say that because the follow-up report contains no analysis by way of support for or explanation of that bald assertion. In particular, we are not told the mischief that the committee was presumably concerned to exclude by its rejection of the confidentiality exemption.

In my view, the arguments the other way are far more weighty. First, a multitude of entities, including many sovereign states and emanations of them, adopt arbitration as the preferred process for dispute resolution because they desire—indeed, they are entitled to—the privacy of arbitration in a range of complex commercial matters. As other noble Lords have said, they choose English law and London because of the quality and reputation of our legal system and our commercial court, which supervises those arbitrations. They also make that choice because of the world-class reputation of UK-based arbitrators, a significant number of whom are Members of your Lordships’ House.

It may not be widely known among your Lordships, most of whom are, thankfully, not lawyers, that the parties to many, if not most, of those arbitrations are foreign and their underlying disputes have no other UK connection. These legal services make a significant contribution to the UK economy. If, as would usually be the case, the parties to the arbitration are not prepared to waive their entitlement to confidentiality and wish to appoint a Member of this House—for example, a retired Supreme Court Justice—as the arbitrator, the effect of the proposal we are discussing is that she or he would either have to decline the appointment or take leave of absence from the House.

Secondly, it is difficult to understand how or why such an arbitrator Member could—still less, would—be able in any way to advance the interests of the appointing party in the performance of her or his role in this House. The same point applies to an advocate instructed to act in litigation for a sovereign state. Advocates are not lobbyists, public relations consultants or formulators of public opinion. They simply present arguments to judges in court or to arbitrators in arbitration. The key point for me is that there is no identifiable mischief which would result if the suggested exemption were permitted. If there were one, I am sure the Conduct Committee would have spelled it out.

Peers have always been actively encouraged to pursue their outside careers—other noble Lords have made that point. Their worldly experience is what qualifies them to be Members of the House. I hope your Lordships will support the amendment put forward by the noble and learned Lord, Lord Garnier.

I add that London is a world-class centre for legal services and it needs to be strongly supported. The proposal before us is disproportionate and unnecessarily prescriptive. If adopted, it would not improve transparency in any meaningful way and, sadly, it may result in some very talented people taking leave of absence from your Lordships’ House. The noble and learned Lord, Lord Goldsmith, is a valuable Member of the House and it would be a sad day if he felt the need in these circumstances to take leave of absence.