§ 11.6 a.m.
§ Mr. Graham Page (Crosby)
I beg to move, in page 2, line 3, at the end to insert:a real action relating to private immovable property" shall be construed (for the purpose of Article 31) as meaning "an action relating to land or to any right or title to land" and "land" shall be defined as it is defined in section (205)(1)(ix) of the Law of Property Act 1925.This Amendment seeks to introduce a definition into the Bill and therefore comes in Clause 2, as subsection (2) deals with definitions. The Amendment, however, is referable to Article 31 of the Convention, paragraph 1 of which reads:A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission …In accordance with that Article, a diplomatic agent is liable to an action that is here described as… a real action relating to private immovable property …and will be able to claim no immunity if proceedings are taken against him which can be described as a real action of that kind.
Taking that phrase as loosely as possible, it would, perhaps, include the most likely type of action between a citizen of this country and a diplomatic agent; for example, when a house or flat is let to a diplomat, action may arise on that for arrears of rent, for breach of covenant relating to sub-letting or assigning without consent, or breach of covenant to carry out repairs or decorations by the tenant, or an action for dilapidations at the end of the lease or, perhaps, an action for possession. Those are very ordinary 865 types of action as between an owner of the property and a diplomatic agent in this country to whom that property is let. A similar type of action might arise on a contract for sale of property to a diplomatic agent; an action, perhaps, upon the contract for sale for specific performance or forfeiture of the deposit if the diplomatic agent did not carry out that contract.
At first sight, one might say that the phrase used in Article 31… a real action relating to private immovable property …would cover such kinds of action, but I question whether we can interpret "real action" in that general way. It was once a term of art in English law; it was very closely defined with a very definite meaning. So also is "immovable property" closely defined in English law, but that does not raise very much difficulty because it is something that is still known to the law.
A real action is something that is not now known to the law. Indeed, it was known before the Real Property Limitation Act of 1833. Before the passing of that Act three types of action could be brought in our courts—real action, personal action and mixed action—and each had a very definite meaning.
Real action was of four different types, quite clearly defined—actions of right proper, actions in nature of right, actions of entry and actions as to interest in land. These were real actions and nothing else. The real action was clearly defined as covering a certain sphere. Real actions were abolished in 1833 except for three or four minor ones which went by the Common Law Procedure Act, 1852 and the Common Law Procedure Act, 1860.
My query about the use of this phrase in Article 31 is this. If the courts of this country are called upon to interpret what is now a real action, are they to turn back to the law prior to 1833? If we never had a clear definition of "real action" the courts might have been free to interpret it in their own way, but as it has been a term of art in English law, are they to turn back to pre-1833 law if the phrase is brought into question in the courts? I do not think it would be open to our courts to look for a definition in the law of some other country that has signed this treaty. If it were open 866 to our courts to look to the law of other countries to try to define what is meant by this phrase relating to real action in Article 31, then to which country would they turn? The definitions are different in different countries.
My Amendment, therefore, is designed in an effort to introduce some certainty to enable the legal profession to advise its clients what rights they have. At present it will be very difficult for a solicitor to advise his client whether he has got a right of action for arreas of rent against a diplomatic agent. Is that a real action against private immovable property? I do not know. That is surely the most common type of action that might be brought in a case like this.
I have suggested in this Amendment that an easy way of defining this phrase with some certainty is merely to refer toan action relating to land …Land is clearly defined in the Law of Property Act, 1925 and includes buildings, rights over land and generally all the things which one understands as being concerned with the land. Therefore, I believe that the introduction of this definition into the Bill will produce greater certainty in the operation and administration of the Bill.
§ Sir Barnett Janner (Leicester, North-West)
I support the plea made by the hon. Member for Crosby (Mr. Graham Page), and I do so for several reasons.
It is bad enough when one finds flaws or difficulties in the interpretation of certain terms after an Act has been passed. The courts are full of these questions. If everything were made clear, the life of the layman as well as of the lawyer advising the layman would be much simpler. All too frequently the interpretation of words or terms in Acts is so difficult that it takes not only one court but often a considerable number of courts until the matter ultimately reaches the Court of Appeal before one can know what the judges regard as being the correct meaning of the term.
The position is even more complicated when dealing with people from abroad, particularly on the diplomatic level, when one wants to be scrupulously careful to avoid any possibility of a misunderstanding about a term lest it may become embarrassing to the persons concerned in 867 the diplomatic service. It is easy enough to fan up a misunderstanding into a major issue. Our difficulty in this House is always to try to use terms which are comprehensive and at the same time understandable to the average lay person. It is extremely difficult, and I do not think it is understood outside how difficult it is. Many people do not appreciate what a difference an "if" or a "but" or a term like "real estate" can make.
When we are dealing with diplomatic matters we must be clear. Many of us have had experience at various times of having to decide how far diplomatic security applies to an individual who happens to be in the service of another State. Some things are clear, and the hon. Gentleman has referred to clear examples of the kind of thing that crops up from time to time. A person in the diplomatic service may be regarded as being a reliable tenant of property. Suppose he turns out not to be so reliable. Does this term as it is used at present prevent a person who has a legitimate grievance against that diplomatic agent from taking proceedings? Can he evict a person in the diplomatic service from the property if that person does not pay his rent or is otherwise an undesirable tenant? That ought to be made clear. I believe the law at present enables that to be done, but I should like to know whether this Bill will affect a person with a grievance and will prevent him from making a claim to the real property.
It seems to me that we cannot go back before 1833. In the Consolidating Acts Committee on which I have the privilege of serving, this sort of problem arises time after time. We have to decide the correct interpretation of a term in an Act and the members of that Committee frequently have to refer back to previous Acts. This is a case of going back to 1833, over 100 years ago, to see where we are. If this matter should ever come before the Consolidating Acts Committee I am sure the Committee will be hard put to it to come to a decision on this term which we are debating.
I am sure the Minister will agree that it is essential, particularly in this kind of legislation—indeed, in every kind of legislation—to understand it clearly. From time to time we are accused in this 868 House of introducing legislation which is not easily understood. We ought to take every opportunity of avoiding that kind of complaint, which in most cases is unjustifiable. Hon. Members do their very best, according to their experience, to use terms which are understandable and cover the subject. It seems to me that "real" so far as it affects property is not readily understandable, and that to talk about a "real action" as the phrase was used more than 100 years ago will not be very clear. If we are correct in our assumption, and I think we are, that the words need clarifying, I hope the Minister will agree.
§ Dr. Alan Glyn (Clapham)
It is unfortunate that the Amendment, if it has any substance, was not introduced at an earlier date. It is now late in the Session.
Throughout London there are thousands of diplomats and their staffs who enjoy the privileges attached to their office, and I think it fair to say that in the majority of cases contracts for the hiring, letting and selling of real property are properly honoured. In any country there will always be people who wish to hide behind their diplomatic privilege to achieve some personal benefit. I do not know how often such cases arise.
I was interested in what was said by the hon. Member for Leicester, Northwest (Sir B. Janner). It seems to me that the phrase applies to four categories—where a diplomat has a letting, where he is selling property, where there is a covenant attached to the property, or where the diplomat is asked by the landlord for possession of the property. I wonder what rights the landlord has under this Measure in respect of hiring, letting, selling and possession under the Measure as it stands and under the Measure if the Amendment were accepted.
It would be unfortunate if people gained the impression that a large number of diplomats were hiding behind their privilege. As I said, a small minority are always willing to do this. I know that my hon. Friend will agree that where this sort of case occurs there is some diplomatic pressure which can be applied to the individual, though that does not necessarily mean that the unfortunate person who has been defrauded is in any better position.
There is always another side to this. If one lets to people to whom privileges 869 attach, there is an extra element of risk on the part of the person who does so, and it may well be that he requires some other security. I shall be interested to hear what my hon. Friend has to say, bearing in mind that we are at a very late stage in the proceedings of the House.
§ The Under-Secretary of State for Foreign Affairs (Mr. Robert Mathew)
I think the House will appreciate, as I do, the anxieties which have prompted my hon. Friend the Member for Crosby (Mr. Graham Page) to move the Amendment.
His intention, as I understand it, is to relate the term used in the Conventiona real action relating to private immovable propertyto established terms of English law. In drafting the Bill, there was, broadly speaking, a choice between two alternatives. We could schedule the relevant articles of the Convention to the Bill and invest them with the force of law by one of the Clauses. This is what we have done, and we have included in the Bill only the minimum of technical provisions, such as that in Clause 2(2), to relate the Convention to the particular legal systems of the United Kingdom. The other possibility was to express the relevant provisions of the Convention in terms of English, Scottish and Northern Ireland laws.
Although the Convention was not drawn up in terms of English law, we felt, after very careful consideration, that the language used was language which the courts of the United Kingdom would have no difficulty in understanding and applying. If the United Kingdom is to be able to ratify the Convention, then we must be able to give effect to the provisions of the Convention. Had we adopted the second course, there might have been the danger of giving the force of law to an unnecessarily rigid interpretation of the Convention, whereas the method adopted permits the interpretation of a particular phrase by the courts in the light of practice. Internationally, it will be the Convention which will bind us and not the particular form of words adopted in a United Kingdom Statute.
In coming to this conclusion, we gave particular consideration to the phrase which my hon. Friend wishes to define. We considered that the courts would experience little difficulty in 870 applying this provision. "Immovable property" is a term which our courts have already had to deal with in the field of private international law, and, indeed, it is a term which finds a place in Section 2 of the Wills Act, 1963, without statutory definition. It is thus, not necessary to provide a definition of the term, and, indeed, the definition proposed is not appropriate.
§ Mr. Graham Page
Does not the Wills Act when it uses the phrase "real action" refer to Scottish law and not English law?
§ Mr. Mathew
If my memory is not at fault, I think it refers to English law. I looked it up last night, and I think I am right. In any event, the definition proposed by my hon. Friend is not appropriate because it relates to a number of other matters such as advowsons. If my hon. Friend looks at Section 209 of the Law of Property Act, 1925, he will see this, and he will also see that the Act is extended to England and Wales only, which is another difficulty, because the Bill must refer to the law of the United Kingdom.
In referring only to "actions" and not to "real actions," the Amendment would result in a serious widening of the exception to the diplomatic agent's immunity as provided in the Convention. It would permit any action relating to land, even, I suggest, an action concerning the barking of the diplomatic agent's dog, whereas the Convention itself refers only to "real actions," which I submit the courts may be expected to interpret as actions where a question of title is involved.
My hon. Friend asked whether the courts in interpreting the words "real action" would have to have reference to foreign legal systems or would have to go back to the pre-1833 law. This is basically a matter for the rules of interpretation, but our view is that the courts will not look back to the technicalities of the old law, back to pre-1833, in interpreting the words "real action", but will accept the term as a general one not tied to the technical terms of any particular law. I believe that the Convention uses the term in its civil law sense and refers to a claim of title, and not in the sense of its pre-1833 meaning in our own law.
871 Finally, I would remind the House that paragraph 1(a) of Article 31 of the Convention, to which the Amendment relates, provides an exception to the immunity of the diplomatic agent.
In reply to my hon. Friend the Member for Clapham (Dr. Glyn), I point out that Article 31(1,a) has the effect of making an exception. The position is that previously English law had allowed no exceptions to diplomatic immunity. The effect of the Amendment, therefore, would be to increase the exceptions, which we could not do unilaterally under the Convention. I must stress that if the Amendment were adopted, the United Kingdom would not be in a position to ratify the Convention without being in breach of the Convention. for these reasons I must ask the House not to accept the Amendment.
§ Mr. Graham Page
Can my hon. Friend answer a quite simple and definite question? Will the diplomatic agent be immune from an action for arrears of rent? I would refer my hon. Friend to Halsbury's Laws of England, Vol. 1, page 21, in which real actions are defined as:In real actions the plaintiff claimed the right to recover lands, tenements and hereditaments.If the landlord is merely claiming rent, would the diplomatic agent get off scot free?
§ Mr. Mathew
The answer is that he will be covered. We are in a position where we must accept that the interpretation of "real action" will be left to the courts with reference to actions of title. If we do not do that we are not in a position to ratify the Convention.
§ Captain John Litchfield (Chelsea)
What does my hon. Friend mean by saying that the agent would be covered?
§ Mr. Mathew
There would be an exception under Article 31. Under the interpretation given by my hon. Friend the Member for Crosby the agent would come under that exception. Perhaps I expressed myself badly. The answer is he would be immune.
§ Dr. Alan Glyn
The point seems to be that if the Amendment were accepted we 872 would be unable to ratify the Agreement. Is that so? That seems to be the crux of the matter.
§ Mr. Mathew
When studying the Amendment I looked into this with some care and I am quite satisfied that that is the position.
§ Sir Frank Soskice (Newport)
Is not the Under-Secretary of State being a little unreasonable about this? Obviously we should try to obtain as much precision and certainty as we can and we must honour the Convention. But the House has been told by two hon. Members who are both experienced solicitors that they will not know how to advise their clients when they try to apply these words in Article 31. That is not a satisfactory position in which to leave this.
The hon. Gentleman cannot ride off by saying that he thinks that the courts will have no difficulty in deciding what the words mean. He obviously had considerable difficulty himself when asked a simple question as to whether a diplomat can be sued for rent. He conveyed the impression that he had very little idea of the answer to that simple question. I accept that we have to honour the Convention, and if the Amendment defining the meaning of the words in Article 31 goes outside those words or falls short of their import then I agree that we would not be honouring the Convention by adopting it. Surely however, the Minister can see that a point of importance even at this late stage has been raised and can say that he will have another look to see if he can get words which would appear to the Government and to their advisers to reflect the meaning of the words in Article 31.
If the Government were to do that we could hardly be accused of failing to implement the Convention. All we ask the hon. Gentleman is to say that a point of importance has been raised. I do not know what the hon. Member for Crosby (Mr. Graham Page) would say, but I imagine that he would be satisfied if the Government were to undertake to reconsider the matter and do their best to find an adequate definition.
This phrase that the courts will have no difficulty in interpreting language 873 which we use is such a pregnant phrase. Some of us who have served both in this House and in the courts know what it means on occasion. Where language is rather loosely used, the result is two or three days hard discussion in the courts, causing a great deal of trouble to judges and lawyers and a great deal of expense to ordinary people.
§ Mr. Mathew
Certainly I will look at this again. The position is that the Amendment as now phrased would widen the exceptions and this would put us in difficulty over the ratification of the Convention. It will be extremely difficult but I will look at this again to see if we can find a form of words which would come within the Convention and give greater certainty and precision. I fully understand what right hon. and hon. Gentlemen have said. Our desire is to get the greatest possible precision in any Measure that we pass through this House.
§ Amendment negatived.