Conduct Committee

Lord Pannick Excerpts

Tuesday 20th April 2021 Lords Chamber

[Lord Pannick (CB)]

My Lords, I too declare my interest as a practising barrister. From time to time, I give legal advice to foreign Governments, primarily on constitutional and administrative law. I appear in court to represent foreign Governments on legal issues both in this country and abroad, just as I do for other clients—sometimes, indeed, against those very same Governments.

I was surprised and disappointed by the Conduct Committee’s ninth report, which we are debating today—surprised because the seventh report published last November recognised at paragraph 13 that

“in a small number of professions there is a duty of confidentiality which would make it difficult for members to disclose the identity of the government, organisation or individual to which/whom services are being provided and/or the level of earnings involved. We propose, therefore, that members in such a position would be able to apply for an exemption from the registration requirement.”

Last month’s report abandons this reasoning and these conclusions, and does so based on fundamental misunderstandings of, at least, the role of the barrister and, indeed, the arbitrator.

As the House has heard, the law is one of those professions in which there is a duty of confidentiality to clients. The very fact that a foreign Government are seeking legal advice from a London barrister is often highly confidential to the client. For perfectly proper reasons, the foreign Government may not wish other persons to know that they are seeking legal advice from me or any other foreign barrister. Confidentiality is fundamental to the relationship of lawyer and client, as the Appellate Committee of this House has recognised.

As your Lordships have heard, the consequence of the Conduct Committee report, if agreed, will be that I and other barristers advising and representing foreign Governments will need to tell prospective clients that we cannot any longer offer them the confidentiality to which they are entitled. The inevitable result will be that many of them will decide to seek legal advice and representation elsewhere.

What is the committee’s justification for this intrusion —and it is an intrusion—into a confidential, perfectly proper and indeed regulated professional relationship? The committee says at paragraph 8 that

“the public interest requires absolute transparency when it comes to members of the national legislature working for a foreign power.”

The noble Lord, Lord Newby, rightly referred to this as the central paragraph of the report. Let us consider the phrase,

“working for a foreign power.”

I have to tell the noble Lord and other Members of this House that, when I sit in Blackstone Chambers drafting a legal advice, I am not working for a foreign power. The very description suggests something sinister and improper. I am giving clients legal advice as to their legal rights and obligations, as I do with all other clients. Some noble Lords—and, I am afraid to say, the committee—fundamentally misunderstand the nature of the role of the barrister.

It is fundamental to the role of the barrister that I am not to be associated with my clients. I act for people of whom I approve, people of whom I disapprove and people to whom I am completely indifferent. The committee fails to understand the role of the barrister. This is more fundamental than a duty of confidentiality. Barristers are not to be associated with their clients, not least because if they were, unpopular people would find it much more difficult to obtain competent representation. No one who understands the ethics of the Bar would think for a moment that for me to give advice to a particular client, whether it be a Government or otherwise, means that I support them in any way whatever.

After summarising the responses that the committee received during the consultation—I was one of those who responded—paragraph 17 of the report simply says blandly that

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

Why is that? As I have said, legal advice is inherently confidential, it is proper, it is regulated and the barrister is not working for a foreign power. I am not on its team, as seems to be suggested.

The argument is simply this, as I understand it, and the noble Baroness, Lady Donaghy, made the point: we need to consider how this is perceived by the public. That is the argument. The noble Lord, Lord Newby, nods. My response to him and others who take that view is that if, as I believe, an exemption and other exemptions are justified, it is the task of the Conduct Committee to explain to the public why this is appropriate. It is not for the Conduct Committee to make what I regard as a bad decision because of a fear that the public may otherwise not understand the issue. That is what this comes to. So, for all these reasons, I ask the noble Baroness, Lady Donaghy, on behalf of the committee, to agree today that these are fundamental issues that need more consideration, and I ask the committee to think again about this subject.