Parliament: Freedom of Speech and the Rule of Law

Earl of Kinnoull Excerpts

Thursday 23rd May 2019 Lords Chamber

[The Earl of Kinnoull (CB)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Warwick, and I add my congratulations to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on securing a debate on such an important topic. I am legally qualified; however, I have spent my career in international business, which has included spells in New York, Zurich and Bermuda, as well as 20 years or so in the City itself. Underpinning all international business are written agreements, which all have provisions to determine the governing law and jurisdiction arrangements concerned in whatever that agreement is. The winner by choice in so many of these things—I do not mean just with UK entities as parties, but generally—is English law and English jurisdictional methods, which may include arbitration or mediation as well. This leadership positioning of English law is a key component, I submit, of the great success of the City of London and the huge legal businesses there now: the magic circle firms are world leading and exceptionally large.

In preparing for this debate, I rang up an Austrian lawyer who I knew used English law in some of his arrangements. I asked him why he did that and he said, “It is the prestige”. When I tried to analyse with him what he meant, he said, “The first thing is that you have a structure—a structure which is presidential, predictable and fair. The second thing you have is the people, in that the quality of the judiciary is exceptionally high and they understand what you’re talking about, because they have the knowledge and experience of arcane financial services instruments or other things as well”. He also pointed out, and I agree, that those things are comprehensively intertwined. I therefore feel strongly that any damage to this happy leadership position is greatly against the national interest.

A business principle that I have always abided by is “Everything communicates”. If your brand is trying to be a premium brand, you cannot send out a letter to all your clients full of spelling mistakes. If you were Gerald Ratner, you would understand this point as well because he criticised his own brand and his business simply disappeared. We have our own principles of comity, which are incredibly important as the boundaries between Parliament and the court. They were clearly laid out in principle—or relaid—by our Lord Speaker in his Written Statement of October last year. Although I agree with the noble and learned Lord, Lord Brown, that they could do with some strengthening, they are clearly laid out procedurally as well in our Companion to the Standing Orders. If we ignore those things, we therefore communicate something negative about our precious legal system.

I am not suggesting that this is a death-by-one-cut thing at all, as in the point made by the noble Lord, Lord Empey. But if we serially ignore our courts—ignore the hard work of the Court of Appeal, which heard for several days on this matter—we will find other jurisdictions snapping at our heels. Other governing law matters will come and people will choose them, which would be damaging to us. We will find it damaging to our efforts, which have already been damaged recently by such things as pension arrangements, to recruit really good judges. So “Everything communicates” is why this debate is important, because I hope we are communicating that we thoroughly support our judges and that we have a method of comity, set out in the Statement of our Lord Speaker and in our Companion. We should stick to that method.