HC Deb 21 June 1963 vol 679 cc835-47

As amended (in the Standing Committee considered).

12.40 p.m.

Mr. John Biggs-Davison (Chigwell)

I beg to move, That the Bill be now read the Third time.

We had no debate on the Bill on Second Reading and as I am sure that the interest in it is out of all proportion to the number of hon. Members present, the House might like me to explain briefly the contents of the Bill. In so doing, I shall not repeat anything that I said in Standing Committee.

Clause 1 confers the necessary powers to administer an oath on all persons appointed by foreign courts to take evidence in civil proceedings. It is normal and convenient international practice for courts to appoint persons to take evidence in foreign countries. Here, the practice is expressly sanctioned by a number of civil procedure conventions with foreign States, but our present law permits oaths to be administered only by duly authorised persons and this category of persons may not in all cases include a person appointed by a foreign court. This Clause therefore confers the necessary powers to administer oaths on all persons appointed by a foreign court to take evidence in civil proceedings.

Clause 2 is designed to meet circumstances which arise when diplomatic relations between this country and another are broken. The House will remember that this happened with certain Middle Eastern States in recent years, and at present there are no diplomatic relations between the United Kingdom, on the one hand, and Albania and Somalia, on the other. When diplomatic relations are broken off it is normal for a protecting Power to be appointed and it is in the British interest that consular officers of the protecting Power should be able to act in place of British officials and be able to administer oaths and perform notarial acts.

In the late war, when our relations were ruptured with enemy Governments, powers were given to consular officers of the protecting Power. This was done under the Evidence and Powers of Attorney Act, 1940, as amended by Section 1 of the Evidence and Powers of Attorney Act, 1943, but this wartime legislation has been repealed. Therefore, Clause 2 would enable powers to be conferred in future by the making of an Order in Council.

Clause 3 simply fills a rather odd gap in the Commissioners for Oaths Act, 1889. The persons who are empowered by Section 6 of that Act include diplomatic officials, senior and junior to counsellors, but not counsellors themselves. The Clause simply enables counsellors to act. My hon. Friend the Under-Secretary of State for Foreign Affairs may think that I am right in thinking that although there are not counsellors at all Her Majesty's missions in foreign countries, 70 counsellors are at present posted abroad.

Clause 4 refers to the Foreign Tribunals Evidence Act, 1856. This Act empowers our courts to comply with requests from foreign courts to obtain evidence in relation to commercial and civil matters which are before them. There is doubt whether this power extends to international tribunals. In any case, I should have thought it desirable that our own Government should be able to distinguish between those international tribunals whose requests ought to be acted upon and others such as, for example, judicial bodies belonging to international associations, such as the Council of Europe, of which the United Kingdom is not a member.

The Clause removes the ambiguity in the application of Section 1 of the Foreign Tribunals Act, 1856, to international tribunals. It limits the tribunals to which this Section is to apply to those specified in an Order in Council. The Clause would also allow an Order in Council to be made in respect of international commissions of inquiry and arbitrations.

Section 2 of the 1856 Act provides for authentication of the request of a foreign court by a certificate from the diplomatic representative of the country where the court is situated. The Clause provides for authentication by certificate of a person specified in the Order, that is, by persons concerned with the international tribunal. I suppose that, normally, it would be the clerk or the registrar of the tribunal.

Clause 4 has also a subsection which provides against perjury in evidence given before any person authorised to take evidence at the request of an international tribunal. It expressly applies to false statements the appropriate subsection of the Perjury Act, 1911. The Clause covers such statements made in England or Northern Ireland, but I understand that no new provision is required in Scottish law because Section 1 of the False Oaths (Scotland) Act, 1933, will apply and needs no amendment.

The purpose of Clause 5 is further to facilitate the proof of entries in public registers overseas. In the absence of statutory provisions simplifying the process of proof, I am informed, although I am no lawyer, that proof of an entry in a register outside the United Kingdom, for example relating to a birth, marriage or death, is often cumbersome and expensive. The Evidence (Foreign, Dominion and Colonial Documents) Act, 1933, enables Orders in Council to be made whereby copies of entries in overseas registers specified in the Orders and duly authenticated are rendered admissible as evidence of the facts stated in the entries. Under this Act, however, an Order in Council can be made only where the foreign territory concerned affords reciprocity by similarly recognising the public registers of the United Kingdom.

This is of no advantage to this country. Apart from the Colonies, where reciprocity is ensured by the Evidence Act, 1851, only a few Orders in Council have been made in relation to certain Commonwealth countries—Australia, New Zealand and Sierra Leone and certain provinces of Canada, and to Belgium and France. The reason is that it is frequently impossible for Her Majesty's Government to be satisfied as to reciprocity, but since the object of this legislation is to assist litigants in the United Kingdom the facilities available in converse circumstances to litigants in foreign courts are irrelevant. What matters is not the recognition accorded to our registers by the foreign country but the reliability of the foreign records.

Clause 5(1) therefore does away with the requirement of reciprocity, which is unnecessary for our purposes. It provides, instead, that the registers must be kept under the authority of the law of the overseas country and recognised by the courts of that country as authentic records, and that they must be properly kept. Subsection (2) makes the appropriate amendments to the Act of 1933.

Clause 6 defines "diplomatic or consular representative", interprets references in the Bill to the administration of oaths and takes power to vary or revoke any orders made under the provisions of the Bill.

Clause 7(3) makes it possible to extend any provisions of the Bill to the Isle of Man or any of the Channel Islands by Order in Council. As a member of the Parliamentary delegation to the States of Guernsey, I am glad to say that there has been no attempt to put anything over on the Channel Islands. The insular Governments have been consulted on this and have agreed.

This Bill has all-party support. Its purpose is to set in order a portion of our law and to further the discharge of our international obligations. I hope that the House will see fit to afford it a Third Reading.

12.51 p.m.

Mr. David Renton (Huntingdonshire)

As one of the co-sponsors of the Bill, which is supported from both sides of the House, I should like to say in a few words why I am so glad to support it. It is, of course, by our standards a minor Measure, but it is important as a tidying-up Measure and it is one which will, at the same time, I hope, contribute to the growth of international co-operation in the administration of the law.

An example of the tidying up is Clause 1. Where the practice of taking evidence on behalf of a foreign court is covered by a civil procedure convention concluded with the country of that foreign court, the authority for the administering of an oath can in England be found in the Rules of the Supreme Court. Lawyers might be interested to know that it is in Order 37, Rule 19 of the Rules of the Supreme Court, which provides: Any officer of the Court, or other person directed to take the examination of any witness or person, or any person nominated or appointed to take the examination of any witness or person pursuant to the provisions of any convention now made or which may hereafter be made with any foreign country, may administer oaths. That sounds rather broad, but, in practice, the operation of the rule depends upon some very technical requirements which the courts insist upon before allowing that rule to come into operation. In any event, the rule does not extend to oaths administered by people appointed by the courts of countries with whom we have no civil procedure conventions and, surprisingly or not, it does not apply at all to Scotland.

Clause 1, therefore, in a straightforward way confers the power to administer an oath on any person appointed by a court or other judicial authority of any foreign country for the purpose of taking evidence in civil proceedings.

It may be that hon. Members have noticed that the unusual word "jurat" appears in Clause 2(2), and I must confess that I do not remember seeing that word in a Bill or Act of Parliament before. I wonder, therefore, if I may make one or two comments because, strangely enough, the word has some significance in the substance of the Bill.

The word here refers to the statement to be signed by the person before whom the oath is sworn. The facts to be stated in the jurat would be the date and the place of the administration of the oath and the designation of the person before whom it was administered. Therefore, a court in this country considering a document which had been sworn abroad in pursuance of this Bill would have to look very carefully at the jurat and at the facts contained in it in order that the court could be satisfied that the matter had been properly validated.

There is another interesting and rather important matter mentioned in Clause 5 which deals with public registers. We normally think of such registers as those relating to births, marriages and deaths. Indeed, the only orders that have ever been made under the Evidence (Foreign, Dominion and Colonial Documents) Act, 1933, have been in relation to those sorts of registers. But there can be other types of foreign register involved, such as registers of patents and trade marks, company registers and various other types of register.

To prove the entry in a foreign register at present is a most complicated business. It is a most tiresome and elaborate procedure. It is often necessary to tender evidence in one of our courts, including that of an expert on the foreign law, to show, first, that the register cannot be removed for production in our courts, that it cannot be brought from the foreign country to this country—it seems strange that that has got to be proved, but it may well have to be; secondly, that it has been personally inspected by the witness and found to contain the particular entry; thirdly, that it is kept in the place where it was inspected abroad by a public authority duly authorised under the law of his own country to keep it; and, fourthly that entries init are recognised in that country as an authentic record by the foreign courts there.

That is a formidable list of matters on which to have to bring evidence in our courts of what may be a very simple fact recorded as a matter of course in the foreign country. I am sure that any Measure such as this designed to simplify the proof of such facts, the proof of simple entries in foreign registers, is to be welcomed, provided of course that there are proper safeguards. Having carefully studied my hon. Friend's Bill, so far as Clause 5 is concerned, it seems to me that the safeguards here are adequate and that there is no real danger of an evil-minded fraudulent person proving with too great ease something which either does not exist or is wrongly stated.

As I say, this is a minor Measure, but I think that hon. Members on both sides of the House will agree that the consideration of Measures such as this is just as much part of the functions of this House and, indeed, of legislation by statute, as their deliberations on the larger issues which come before them. My hon. Friend the Member for Chigwell (Mr. Biggs-Davison) is, indeed, to be congratulated on his willingness to devote his time and thoughts to the Bill. I must agree that its complications are a little daunting, but it is a Measure which I am sure in many respects will be of some consequence and advantage both to private persons and companies and the business community generally in our country, and to foreign Governments and business people abroad.

In my opinion, international co-operation of this kind is much more likely to bring together the nations upon earth than vague, controversial and premature conventions relating to world government, although I have always respected the intentions of those who apply their minds to such conventions. Let us, by Measures such as this, break down international barriers, and one day our great-grandchildren will find that they matter very little more than our parish boundaries.

1.1 p.m.

Dr. Alan Glyn (Clapham)

In adding my congratulations to my hon. Friend the Member for Chigwell (Mr. Biggs-Davison), I should like to say that the Bill relieves what I have often regarded as a very great difficulty—the expense for litigants in proving certain very elementary matters simply because in our law no machinery exists.

I asked myself one principal question when I first saw the Bill: does it achieve its object without in any way detracting from the reliability of evidence? I am more than satisfied that the Bill achieves simplicity in producing and proving evidence without in any way detracting from the reliability of that evidence as brought into our courts.

Clause 1 says that a person appointed by a foreign court shall be a competent person. That seems to me a most reasonable and sensible provision, because it is the courts under which the law of the country is administered, and it is a sensible solution that the person or persons appointed by the court should be the person or persons to whom we should look to produce the evidence concerned.

Clause 2 clears up, as far as can see, an anomaly which was left when certain war-time Measures were taken off the Statute Book.

Clause 5 is one of the most important Clauses. I do not intend to go into it, because my right hon. and learned Friend the Member for Huntingdonshire (Mr. Renton) cleared the matter up. I know from practical experience that this question of the public register, to which he referred, has caused considerable difficulty. I remember an occasion on which a friend of mine who had to produce this evidence was not allowed, even if the registrar had been willing—as he was in this case—to produce a certified copy. He had to produce the evidence that one of our consular officials had personally examined the register and was personally prepared to vouch for the veracity of the entry.

This may not seem very harsh, but, in fact, it caused a considerable delay in getting the evidence. It caused the person a large amount of additional and unnecessary expense in order that this procedure should be gone through. Had a copy of the register been admitted, it would have been just as reliable and would have saved the litigant much expense.

This is a little Bill, if I may so describe it, but although it has few pages, it goes a long way. I re-emphasise what was said by my right hon. and learned Friend, that it is this sort of Measure which goes a long way not only to simplifying our own legal procedure in the courts but to making it apparent to other countries that we accept their evidence in the way in which they themselves accept it. In particular, Clause 5, dealing with the register, is very important. If we could expand this type of arrangement I am sure that it would go a long way towards improving judicial processes and towards understanding not only between the legal fraternity, but between the general public in all parts of the world.

1.6 p.m.

Mr. G. R. Mitchison (Kettering)

This is a very limited but useful Bill and I trust that the House will give it an unopposed Third Reading.

When listening to the claims which are made on behalf of a limited Bill of this sort, I feel that there ought to be better machinery for the passing by the House of Bills of a technical and non-controversial character such as this. In practice, the Government of the day seem to rely in these matters on the support of private Members, and if private Members are unfortunate or minded in other directions, then small but useful and necessary Measures simply do not get through the House.

That applies to questions of judicial procedure such as this, if I may use a broad term, and also to non-controversial legal Measures which have been recommended by a learned committee or other, which are no doubt required, but which the House does not find time to introduce with any promptitude.

Accordingly, on behalf of my numerous friends on this side of the House, I welcome the Bill and congratulate the hon. Member for Chigwell (Mr. Biggs-Davison), who has used his place in the Ballot to such good purpose.

1.7 p.m.

The Joint Under-Secretary of State for Foreign Affairs (Mr. Peter Smithers)

I ask the indulgence of the House to say a few words about the Bill, because it received its Second Reading without discussion and the Amendments introduced in Committee were introduced without objection. I dare say, therefore, that a word of welcome and one or two comments from the Government are desirable.

I congratulate my hon. Friend the Member for Chigwell (Mr. Biggs-Davison) on his work upon the Bill and the very lucid way in which he presented it to the House. I thank my right hon. and learned Friend the Member for Huntingdonshire (Mr. Renton), who gave an equally lucid exposition of various points in the Bill. This has very much lightened my task.

When the Government considered the Bill we naturally asked ourselves the same question as my hon. Friend the Member for Clapham (Dr. Alan Glyn) asked himself: does it achieve its object without detracting from the reliability of evidence? We took advice and considered the question carefully, and we are satisfied that we can give a satisfactory answer to it. The Bill closes one or two gaps in present legislation, and it also adapts earlier legislative Measures to the needs of our time. I should like to men- tion one or two points in it and, in particular, the provisions of Clause 4.

Broadly, they empower Orders in Council to specify international tribunals whose requests for the taking of evidence should be complied with by the courts of this country. The Government have hitherto taken the view that power to take evidence on behalf of such tribunals already existed under Section 1 of the Foreign Tribunals Evidence Act, 1856. We have assumed obligations to comply with such requests in respect of two international tribunals, the Arms Control Agency Tribunal set up under the Convention concerning the Agency for the Control of Armaments under Protocol No. 4 of the Brussels Treaty of 1948, as modified by the Protocols signed in Paris in 1954; and the tribunal set up under the Convention on the Establishment of a Security Control in the Field of Nuclear Energy and its Protocol on the Establishment of a Tribunal signed in Paris on 20th December, 1957.

I understand that no request has so far been received from either of these tribunals. However, the existence of the power to take evidence in this way is not, in fact, altogether beyond doubt, and, in any event, the accompanying provisions of the Act of 1858 as to the authentication of the requests are, as has been said, highly inconvenient. What is more, it does not follow that, because Her Majesty's Government would like to be able to comply with letters of request from some international courts, we should wish to do so in respect of all of them. The case for assisting the court is obviously not so strong if, for instance, it is one set up by an international organisation of which we are not a member. Clause 4 confers a valuable discretion in this matter enabling appropriate foreign tribunals to be specified by Order in Council.

Subsection (2) closes a small lacuna in our present law under which, owing to the wording of the relevant Section of the Perjury Act 1911, it would not at present be any offence to give false evidence on oath in this country for the purpose of proceedings before an international tribunal abroad. I am sure that it will be agreed that it is very desirable to achieve that.

I should like to say a word or two on Clause 2. The need for a means of authorising diplomatic and consular representatives of protecting Powers to administer oaths and take affidavits was felt during the war and has been felt occasionally since. This Clause will permit an Order in Council to be made to enable these functions to be performed where the United Kingdom does not maintain direct diplomatic relations with a foreign country but has entrusted the protection of British interests to a friendly power. It might be that, owing to the paucity of British subjects or interests in a country with which we have no relations, the need for making an Order would not be felt. But in other countries the ends of justice and the interests of British nationals might not be capable of being served without the use of the power given under this Clause.

I think that Clause 5—

Mr. Renton

Before my hon. Friend departs from Clause 4, I wonder whether he is in a position to state what are the intentions of the Foreign Secretary with regard to the laying of Orders in Council under Clause 4? Is there any chance of fairly immediate use being made of the power?

Mr. Smithers

I am not sure whether I should be in order in referring to that matter, but I think that it would be premature for me to make any statement about the actual intentions concerning the use of the power at this moment.

I believe that the provisions of Clause 5 will be of real assistance to persons in this country who, in the course of litigation, or for other purposes, need to prove such matters as foreign birth, marriage, or death. At present, unless the strict formalities of the law can be waived, such proof can, in our observation, be a matter of very considerable difficulty and may, indeed, involve the attendance of an expert in the foreign law concerned. Where the fact is reliably recorded in a foreign register of undoubted authenticity, a copy of the extract from the register duly authenticated should, in our view, be all that is necessary, in the way of proof.

The Evidence (Foreign, Dominion and Colonial Documents) Act, 1933, is designed to simplify proof in this way, but it has not proved very effective in practice. As my hon. Friend the Member for Chigwell pointed out, its pro- visions can be applied to a foreign country only where reciprocity is provided by the law of that country. Her Majesty's Government are quite clear that there is little interest in some foreign countries in negotiating the necessary conventions affording reciprocity mainly because their rules of evidence are often less strict than ours.

On the other hand, it is clearly in the interest of litigants in this country that they should be able to establish proof of entries in foreign registers of proper authenticity in a simple and inexpensive manner. Reciprocity, therefore, is not a strictly relevant consideration. It is my hope that if the Bill reaches the Statute Book we shall be able to take advantage of Clause 5, which removes the need for reciprocity in these matters, and to extend the benefits of the 1933 Act so that they will cover a considerable number of foreign countries.

There is one small matter under Clause 3 to which I should like to allude and which may, I think, be of interest to the House. My hon. Friend the Member for Chigwell has pointed out what may at first sight seem the curious and anomalous fact that counsellors were not empowered to administer oaths and perform notarial acts by Section 6 of the Commissioners for Oaths Act, 1889, whereas senior and junior diplomatic officers were so empowered. I have been looking into the history of this a little bit and I think that the explanation is worth giving.

My recollection of the records of Queen Anne's reign and of that time is that there was then an official, generally found in a mission of any size, called the secretary of legation and that he performed a number of very important functions in the discharge of the duties of the mission. Under 1st April, 1904, in the Foreign Office List, there is the following entry: Counsellors of Embassy. The title of Counsellor with a Commission as Counsellor of Embassy in Her Majesty's Diplomatic Service to be conferred on the eight Secretaries of Embassy, the Secretaries of Legation at Peking, Teheran, Tokyo and Cairo, the Chargé-ďAffaires at Darmstadt and the Consul-General at Budapest, with precedence according to seniority in the new grade. Secretaries of Legation to be discontinued". I think, therefore, that it is clear that what happened was that a new category of official appeared upon the scene at that time, and that this fact was not recognised in our law until my hon. Friend the Member for Chigwell, with extraordinary observation and learning, detected this flaw in our legislation and put it right in the Bill.

Mr. Graham Page (Crosby)

Before my hon. Friend leaves the point, could he tell us how many extra commissioners for oaths are involved in this? I must declare an interest here. He will know that the job of commissioners for oaths is a closed shop, and it seems to me that we may be watering down that closed shop by Clause 3. Some of us earn the enormous sum of 5s. per oath. On occasion I have earned myself five pints of beer by going through the Division Lobby in this House, and I do not want this closed shop to be watered down too much.

Mr. Smithers

From such knowledge of the law and practice in this matter as I have, I think it is correct to say that a counsellor of embassy can exercise his function only within the boundaries of the country to which that embassy or legation is accredited. Therefore, I think that neither my hon. Friend nor those who practise this, I hope, lucrative profession need fear any serious competition.

Finally, I thank the hon. and learned Member for Kettering (Mr. Mitchison) for his support of the Bill, as Her Majesty's Government would very much like to see it pass into law. I also wish to offer to my hon. Friend the Member for Chigwell my personal congratulations on the skill with which he has conducted it.

Question put and agreed to.

Bill accordingly read the Third time and passed.

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