Conduct Committee

Lord Hope of Craighead Excerpts

Tuesday 20th April 2021 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I must begin by declaring an interest, although compared with some others it is a relatively insignificant one. When I left the Supreme Court in the summer of 2013 and ceased, after four years, to be disqualified from speaking and voting in the House, I returned here with the intention of spending much of my time here. After all, I had spent 13 years as a Law Lord and it had become like a second home to me during those years. I was delighted to come back and be given the opportunity to play a part in the House’s affairs.

However, I received some invitations to sit as an arbitrator and I did three of them, mostly in my spare time, before I was asked to become the Convenor of the Cross Benches. That is a full-time job and I made it clear that I was not prepared to do any more arbitrations. For my four years as Convenor I did not do any. My practice, such as it was, disappeared and that was pretty well the end of it. However, one invitation arrived afterwards and I did accept it. It is an arbitration that is still live, which is why I am directly affected by what this report has to say.

That is because, as in all the other arbitrations I was involved in, one of the parties is state-aided, although not the one by whom I was invited to be the arbitrator—in any of them, as it happens. As noble Lords may know, there are three. Each side chooses one, and the two choose a chairman. I happened to be, in each of them, the non-state-aided nominated party.

I am not at liberty to say which countries these came from. All I can say is that it was not Russia, or Iran, or even China. I was not aware of any security concerns, or any reason why I should declare that interest at the time. My experience also suggests that it is not at all unusual, in arbitrations in which people such as I are involved, for there to be at least one party who is state-aided; it is a relatively commonplace experience.

Time is short, so, with great respect to the noble Baroness, I want to raise two points of detail on the report where I think there may have been a mistake. The first is the need for Members providing legal and arbitrational services to register their details twice. I do not understand why that should be so. Paragraph 55A, under the heading “Directorships”, tells them in peremptory terms that they need to register their interest under that heading. Then paragraph 57A, under the heading, “Remunerated employment etc”, tells them to do it again.

I do not understand why it should be necessary to do that twice. The first requirement seems to rest on a misconception, because in no respect could an arbitrator be regarded as acting as a director for the state-aided party. In my case I was not nominated by that party anyway, but there is a well-understood rule that you have to declare any interests before you take on a position as an arbitrator. If I were a director of one of the parties, that would disqualify me from being an arbitrator at all. So arbitrations have nothing whatever to with that category and I respectfully suggest that including the requirement to register the details there is an error. It does not matter for the overall picture, because I will certainly register under paragraph 57A—the correct category. So I suggest that that should be looked at again, as there may be an error that should be corrected.

The other point is more personal to me, and it relates to the period of grace as it applies to arbitrators—rather more so than to lawyers. My current arbitration, in which I am one of three, began in 2018-19. The date is important, in the light of paragraph 8, which the noble Lord, Lord Newby, referred to, because that date was well before this issue arose at all, so I had no opportunity to discuss with my co-arbitrators—or, indeed, the parties, to whom I am bound by a non-disclosure clause—the possibility of this issue arising. It simply was not in the picture, and I had no opportunity to say, “Sorry, this new rule is coming up and I should withdraw.” So there is a retrospective element in the period of grace, which affects me very much.

Furthermore, although the arbitration started in 2018-19, it is very long-running and complicated, and proceeds in widely separated stages. We had a 14-day hearing in December, the parties’ submissions did not come in until the end of last month, and we are now beginning to consider the first part of our award, which will then be followed by a further stage, and so on. We have been badly affected by the Covid epidemic. Our hearing in December had been delayed by six months: we were going to meet in June but could not do so. Things were further delayed by the fact that all three arbitrators come from different countries, and we are having to discuss our affairs through Zoom, which is a very unsatisfactory way of dealing with a complicated matter that requires deep discussion.

So the arbitration is long-running, and, I have to say, may well not finish by the end of this year. I am in a difficult position, because I am told that if it has not finished by 31 December, I have to take the various steps referred to in the paragraph about the period of grace. The first, which is to finish the arbitration, will not arise in my case. The second is to obtain the consent of the parties to the release of their names and details. I simply do not know whether I can achieve that, given the confidentiality clause.

The final step mentioned is to terminate the relationship. Now you cannot do that in an arbitration. An enormous amount of work has been put into it, and nobody can take my place. If I leave, it would hugely disrupt the whole process and would probably result in an enormous claim for damages against me for breach of contract. So in that situation I would be driven to seek leave of absence, which I would very much regret having to do.

I was invited by the Convenor to be a member of the Constitution Committee, and I am in my first year of a three-year appointment. I would have to come off that at the end of December, which would be a severe penalty for me. I wonder why I should be put under that penalty for a situation that was not an issue when I took this job—so I suggest that that should be looked at again.

The fair thing to do for people in my position, with an arbitration that began before December 2020 and that is still ongoing and likely to go on beyond the end of the year, is simply to say that this does not apply to that arbitration.

I will make one other point before I finish—I am sorry to be taking so long. An arbitration is a one-off event: it is not a continuing relationship. When it finishes, that is the end and I never see the parties again—whereas a lawyer representing a party may have a continuing relationship with no ending until the party declares it should end. So there is nothing wrong, I would have thought, in simply exempting people in my position from having to get involved in this and having to seek leave of absence. Those are two particular points that I would invite the noble Baroness to look at very carefully at some future date.