Conduct Committee

Lord Thomas of Cwmgiedd Excerpts

Tuesday 20th April 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, at this late stage in the debate all the principles have been canvassed, so I will speak briefly. Before I do so, I declare two particular interests: I sit as a judge in Qatar as president of the Qatar International Court, having been appointed by the state of Qatar in 2018, and I sit as an arbitrator practising in London in commercial arbitrations, although I have not sat in a dispute where one of the parties was a foreign state.

As this debate has shown, there are two conflicting issues of principle. First, there is the fundamental right of the client of any lawyer to confidentiality between him and the lawyer and the fundamental rule of confidentiality in arbitrations. The other conflicting principle is the imperative in a democracy for transparency and, to that end, that the interests of all Members of the legislature are disclosed. The objective of the Conduct Committee was to balance these conflicting principles. That was not an easy task, as the committee had to balance, first, the potential damage to London as one of the leading centres in the world for dispute resolution, both in court and arbitration; secondly, the potential risk that foreign Governments would not be able to take advice from some of the ablest lawyers in the UK, or that some of the ablest lawyers in the UK would be disadvantaged; and, thirdly, the potential damage to our democracy and to public confidence in the House.

In my view, in matters of this kind we as a House should generally respect the judgment of the committee on such a balance. The committee has consulted. It is a body that contains independent members, and independent members often have a different and balanced perspective. The House should therefore not lightly go against such a judgment and decision. However, it is not necessary for me to resort to saying that because I am of the view that the committee has reached the right judgment in the report on balancing the two conflicting interests.

First, the requirement is not intended to be retrospective. It would be difficult, in accordance with principle, to make it retrospective as there are, in certain circumstances, commitments that have been undertaken, and it is the duty of the person concerned to continue with them and with the existing rules. As there are likely to be current matters that run on beyond the grace period—a year, as many will know to their cost, is often a short time in some arbitrations—the requirement of confidentiality should not be applied so that it operates retrospectively. However, for the future there can be no doubt about the proper course of action.

If the report is adopted, a foreign state will be told when it seeks to instruct a Member of this House that the fact that it has sought legal advice or representation by a Member of this House, or has appointed a Member of this House as an arbitrator, will be made public; it will have to disclose that fact and the remuneration paid. If the state does not wish that to be made public then it will not go to that particular Member of this House. However, I cannot see how that can damage London. The strength of London is that there are sufficient persons of great skill and eminence who can provide these services. In my view, that very strength makes it extremely unlikely that any damage would result from the judgment that the committee has made.

Clearly, there will be disadvantage to some. But it is a fact of life as a lawyer that you have to disclose interests when they arise. When there is a conflict or the client learns of certain interests, he may decide not to instruct that person. I see no difference in principle between that position and the position that would require disclosure by a Member of this House. Clients are used to dealing with situations of that kind. The position may be different for members of large law firms, as they would be disabling their partners from accepting such work. But unless a special exemption was crafted for such a person, I do not see how that should prevent the adoption of this report, damaging though it might be to one or two individuals.

When one looks at the position on the other side, no one in this House can have the slightest doubt about the integrity of the lawyer Members; nor would anyone for a moment think that any lawyer advising or representing a client would be influenced by that activity in relation to the business of the House. However, in these matters, the public’s perception is all. I do wish lawyers were better understood by the public—that the public understood their role and shared the views of those in this House about the way lawyers act. However, that is not a realistic expectation. It is important that we are fully transparent. What matters is the public’s judgment of the way we conduct ourselves. Transparency is essential and it must, subject to retrospectivity, take precedence over confidentiality. For these reasons, I hope the House will agree to the report.