Conduct Committee

Lord Marks of Henley-on-Thames Excerpts

Tuesday 20th April 2021 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I start with a declaration of interest. I am a barrister undertaking mostly commercial construction and professional negligence work. I am also a qualified arbitrator, an accredited mediator and an adjudicator, and I do considerable arbitration work as an advocate—although not presently as an arbitrator—much of it international. I have not, to my knowledge, ever been retained by a foreign Government, foreign government agency, or foreign government-controlled entity. But that is happenstance: I have, for example, appeared against a government-controlled entity.

I oppose the proposed changes in principle—not to protect other lawyers but because I believe that they directly conflict with a professional duty of confidentiality which lies at the heart of the lawyer-client relationship. In this debate, I believe that a perceived concern for transparency, even if genuine, threatens to undermine one of the fundamental features of the right to take legal advice in confidence from a lawyer of the client’s choice.

Of course, this issue goes far wider than the law and affects other professions equally, but in the legal context, at any rate, confidentiality is the right of the client and duty of the lawyer. I do not believe it appropriate for lawyers to offer clients the Hobson’s choice between either retaining the lawyer of the client’s choice and losing the right to confidentiality, or retaining another who will abide by the duty of confidentiality. We, as lawyers, have no right to demand that of our clients, actual or prospective. Who is to say that a client seeking advice at the outset of a retainer may permit confidentiality to be released, only deeply to regret it later, when a client never should sensibly have sacrificed confidentiality in the first place?

In the case of arbitration, where the whole process is by agreement confidential—and with respect to the noble Baroness, Lady Deech, it is not publicised—the position is even worse. The confidentiality is also owed to the other party. Imagine a QC Member of this House retained by an entity controlled by the Government of New Zealand in the arbitration of a dispute with a well-known wine maker. Everyone knows that a dispute is under way, but the arbitration is not public knowledge; nor is it known that the New Zealand Government have retained a QC, nor one who is a Member of this House. The New Zealand public would quickly deduce from the register that the dispute had gone to arbitration and the confidentiality of the arbitration would therefore be blown, entirely without the consent and against the will of one of the parties, who had nothing to do with the retainer.

Let us consider a dispute in England, still involving the New Zealand Government but this time concerning a government contract. The New Zealand Government wish to retain a barrister of their choice for the purpose of taking advice well before litigation. As a Peer, that barrister has to demand the release of confidentiality, whether or not that is in the client’s best interests, or to refuse to act. Such a refusal puts a barrister in breach of the cab rank rule, a point not considered by the noble Baroness, Lady Deech, when she mentioned this, because the cab rank rule provides that you have to take a case—in England anyway but, yes, not abroad—if you can, subject to well-defined practical exceptions. Maybe the Bar will change its rules, but the cab rank rule is at the heart of what we do; it underpins the principle that any litigant has the right of access to the barrister of his or her choice.

The situation for solicitors is even worse, a point elaborated on by the noble and learned Lord, Lord Goldsmith. If a foreign-owned client retains a firm of solicitors, that firm is bound to act in the client’s best interests at all times. If the best expertise in a particular area in the firm was that of a Member of this House, the client would either have to forfeit the right to the advice of the best lawyer for the job or forfeit the right to confidentiality. That is the point made by the noble and learned Lord, and he is absolutely right: it is not acceptable.

Those are only a few of the conundrums that these new proposals present. Yet there is an uncomplicated solution available, which should be considered, if the amendment proposed by the noble and learned Lord, Lord Garnier, is passed. In respect of declarations of interest, the code provides at paragraph 97:

“Where a member feels unable to declare a client due to a duty of confidentiality, then the member should not participate in any proceedings or correspond with ministers or officials regarding matters potentially affecting that client.”


If a parallel rule were introduced in respect of registration of foreign interests, the public interest would be protected. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, made similar points. It goes without saying that that requires some trust that Members will comply with the code, but so does every other provision of the code, which we are all bound on our honour to obey.

I urge the House to reconsider and to ask the committee to reconsider, and to support the amendment proposed by the noble and learned Lord, Lord Garnier. I ask the committee to reconsider its recommendations in the light of this debate and of such further research as it can do, in order to avoid the fundamental conflicts inherent in this proposed change in the code.