Clause 4

HC Deb 28 April 1972 vol 835 cc1992-8

EVIDENCE OF FOREIGN LAW

Question proposed, That the Clause stand part of the Bill.

Mr. McLaren

The Clause will interest anyone who has studied the fascinating subject of private international law. It is designed to facilitate the proof of foreign law in English courts. Foreign law has always been treated as a matter of fact which has to be proved like any other question of fact. The Clause provides that a finding of foreign law, if reliably recorded in citable form should be admissible in subsequent civil proceedings as prima facie evidence that the foreign law is in accordance with that finding. At present it cannot be inferred from previous decision with the result that it has to be proved over and over again in each separate case. This is expensive and time-consuming. The previous finding is not to be regarded as conclusive, because one may always suppose that it may have been wrong or, alternatively, that the foreign law may since have been changed.

The second provision in the Clause abolishes the restrictive rule that only those who are qualified to practise in the courts of the foreign country may give expert evidence of that foreign law. That rule derives from a decision of the courts in 1850. Instead, the test proposed in the Clause is more sensible and realistic: namely, that the witness should be a person who, by his qualifications, knowledge or experience, is competent to give expert evidence. The Clause provides for a requirement to give notice to one's opponents of the intention to prove a finding of foreign law. The general effect of the Clause is that, if it is passed into law, it will become much simpler and easier to prove questions of foreign law.

Mr. Percival

Can my hon. Friend tell us what is meant by lines 2 and 3 on page 4 of the Bill which refer to a person who is suitably qualified…on account of his knowledge or experience…competent to give expert evidence"? Surely it means that before evidence can be admitted somebody must decide whether the person whose evidence is tendered is suitably qualified to do so on account of his knowledge or experience". What have the promoters in mind in putting forward that wording?

Mr. McLaren

The court would begin by interrogating the witness as to his qualifications and would discover whether the expert was a member of the bar of the foreign country or whether he had academic qualifications as a professor in a university. The latter point provides the key. The old rule was that a person had to be qualified to practise. The new rule will apply also to a person who is not a practitioner but who has expert academic knowledge of the law concerned. I hope that that is a sufficient answer to my hon. and learned Friend the Member for Southport (Mr. Percival).

Mr. S. C. Silkin

I support the Clause entirely. It will make an extremely useful contribution to simplifying our proceedings and to the saving of cost. I want to raise two points on it.

First, I could have wished that the Clause and the recommendation had gone a little further. The evidence to be allowed will not necessarily be conclusive; it will be capable of rebuttal. Therefore, one might have thought that it should be possible to go direct to the source of the law concerned and cite the authorities of the country concerned. One is bound by the Clause to give warning to the other side of the means by which one produces written or expert evidence Therefore, if there were any disagreement about the authority referred to, it would be possible for the other side to call evidence to rebut it. I should have thought that that extension would involve even greater saving of time and expense in many cases in which an expert witness, whether expert under the old régime or under the new régime, was called to say what was in a foreign authority or statute.

Secondly, I realise that this is a Civil Evidence Bill and it is no doubt for that reason that this provision relates only to civil proceedings. It appears, however, to create an anomaly, because when it comes to citations one can cite findings in criminal as well as civil proceedings. We are therefore creating a different régime for civil proceedings from the régime for criminal proceedings, although we recognise that findings of foreign law are equally effective, whether in civil or criminal proceedings. I appreciate that within the confines of a Civil Evidence Bill one cannot alter the criminal law, but thought might be given to this point for the future.

Mr. Stanbrook

It is curious that the Law Reform Committee accepted the idea that evidence of foreign law need not be given by someone who was a professionally qualified lawyer in the country concerned. The door is thereby opened to all sorts of abuses, subject only to the judge who has to satisfy himself that the individual concerned is suitably qualified…on account of his knowledge or experience in the law. This provision might well lead to great difficulties.

At one time I had the privilege of serving Her Majesty as a member of the Colonial Administrative Service in Nigeria and I knew something about native law and custom there. The provisions on marriage and divorce among Nigerians were and still are of relevance to courts in this country, and it is necessary for someone who has been called to the bar of Nigeria to say whether a document is prima facie a document of marriage or divorce between the parties.

No doubt under this Clause, had I still been serving in my former capacity in Nigeria, I should be qualified to give evidence on the acceptability of a certificate. I am not now so qualified not merely because of the length of time since I was there but because I was never a member of the bar of Nigeria. However, when one considers the numbers of scraps of paper on which marriages and divorces under Nigerian native law and custom are recorded, one can imagine that there will be a great deal of dispute and contention on whether a document produced before a court is acceptable.

The Clause does not provide adequate safeguards against fraud. My hon. Friend the Member for Bristol, North-West (Mr. McLaren) referred to the point which arises under subsection (2) about any question of foreign law which has been determined by an English court being a matter of judicial recognition. Foreign law is not static any more than ours is, the position might change by the time an English court was required to give judicial recognition of a previous decision. How will we get over that problem without calling a fresh expert on the law of that foreign country?

That leads me to make this suggestion. Why should we not establish some sort of internationally recognised form of obtaining an authoritative statement of foreign law from the judicature or appropriate legal authorities of the countries concerned? In this respect, as in some other respects, Islamic countries order things better than we do. They have the institution of the mufti, whose job is not to be a judge but to give authoritative expressions of opinion. It might be possible, through international diplomatic channels, for questions of this kind to to be settled in the form of a certificate in the country concerned. Nowadays, communications being as simple and expeditious as they are, this would not be a difficult process but would assist greatly in establishing these points.

3.0 p.m.

The Solicitor-General

When my hon. Friend the Member for Orpington (Mr. Stanbrook) began his observations, I confess that I was beginning to lose a degree of faith in his reputation as a zealously reforming character. When he was saying that he found the Clause "somewhat curious," I was beginning to find his anxieties about the activities of fraudulent characters in almost every context of the civil law somewhat curious.

I was exhilarated by the note on which my hon. Friend closed his remarks, when he suggested the possibility of a system whereby questions of foreign law might be disposed of by the exchange internationally of certificates from sources of authority in various countries.

This bears on the point made by the hon. and learned Member for Dulwich (Mr. S. C. Silkin), who suggested that these provisions did not go far enough in enabling our courts to look at foreign authorities. However, I think that that suggestion may go further than would make sense if one were to allow our courts to go roaming at large in pursuit of foreign law among foreign countries.

I welcome the citation of Commonwealth reports as matters of persuasive authority, but to go beyond that might be to run the risk, as my hon. Friend the Member for Orpington pointed out, of our courts reaching a conclusion that would be manifestly wrong to some foreign lawyer who was aware that the decision in question had been overturned on appeal.

Mr. S. C. Silkin

As the hon. and learned Gentleman is aware, it is open to either side to dispute such a matter under the Clause. It seems odd that one can cite American reports, for example, and show what the law of this country is or should be, but that one cannot cite them to show what American law is.

The Solicitor-General

That is precisely the point, and I think the hon. and learned Gentleman has led himself astray because the state of foreign law is, except where otherwise provided, a matter of fact; one can cite American reports to see the kind of arguments that commend themselves to American courts, which we may or may not like to "buy" in our courts. There is no reason why one should not look at this matter with a view to seeing whether this process can be improved from the point of view of the provisions contained in this Measure.

The suggestion of my hon. Friend the Member for Orpington for international certification on questions of foreign law is, I believe, under consideration at the Council of Europe in the course of a convention which has not yet been finalised. It is clear, therefore, that there is considerable point in what my hon. Friend said.

My hon. and learned Friend the Member for Southport (Mr. Percival) asked about the use of the phrase: who is suitably qualified to do so on account of his knowledge or experience". I commented on this earlier and explained that in every instance, except that of foreign law, the rule has hitherto been that it is for the judge to decide to what extent and on what matters an expert is qualified to give evidence.

In the case of experts on foreign law, there has been a different pattern, dating back to1850. It is to the effect that only someone who has practised or is entitled to practise in the courts of the foreign country concerned is entitled to give evidence on foreign law. Even that antique law has been diminishing as a result of what some people would regard as some rather elderly cases—what lawyers would describe as "more recent cases"—dating between 1889 and 1910, certainly well before my time.

It is nevertheless the case that in those more recent cases it had been held that one could get evidence of foreign law from a rather splendid list of characters—including a governor-general, an embassy official and, in one case, the Reader in Roman Dutch law in the Council of Legal Education. This march, which seemed to have stopped some 60 years ago, has been accelerated rather dramatically by the Clause, because it is for the judge to decide whether the person is or is not suitably qualified on account of experience or knowledge. There is no magic in entitlement to practise, but the judge has to be satisfied in that other respect.

Question put and agreed to.

Clause 4 ordered to stand part of the Bill.