Why is parliament sacrificing its legal expertise?
Two former judges were granted leave of absence from the House of Lords yesterday until the end of this session. Lord Phillips of Worth Matravers KG is a former president of the Supreme Court and Lord Mance is a former deputy president. Both could contribute a great deal to future debates. Why are they no longer attending? And why are others likely to follow?
Could it be because new rules now require peers to register their work for — and disclose their earnings from — the governments of foreign states? Both Phillips and Mance are appointed by foreign governments to sit in international arbitrations.
All lawyers owe their clients — both in the UK and abroad — a duty of confidentiality. After the Lords changed their rules, peers were given until the end of last year to complete existing work; or reach an agreement with the client about disclosure; or end the relationship; or take leave of absence.
In a debate last year, the former attorney general Lord Goldsmith QC said this:
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.
Goldsmith works for an international law firm. He also took leave of absence at the end of last month.
Lord Pannick QC made some powerful points in the same debate:
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.
Unfortunately, Pannick’s advocacy was not persuasive on this occasion. So what is he going to do?
“I remain of the view that this is a foolish rule,” he tells me:
The payments are of no relevance to work as a peer (as is plain from the arbitration example) and the rule is depriving the House of much-needed expertise.
I have decided not to take leave of absence. I will have to declare and register fees received from foreign states. That means that I need to warn foreign government clients when I am instructed that I will have to register and declare the fees — though not the subject of the advice or the case.
We cannot know whether, as a result, foreign governments will no longer be able to instruct the leading advocate in the field of public law. But any loss they suffer will be parliament’s gain. Pannick’s legal expertise is highly valued by the Lords and they are lucky to still have him there.
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