HC Deb 27 February 1978 vol 945 cc177-202

10.14 p.m.

The Lord Advocate (Mr. Ronald King Murray)

I beg to move, That this House takes note of EEC Documents Nos. R/2962/76 and R/2963/76 on Jurisdiction and Judgments Convention. In chronological order these documents are the English translation of the existing 1968 convention and the 1971 protocol referring matters of interpretation to the European Court, on the one hand, and, on the other hand, the draft accession convention which seeks to embody the adjustments which are necessary to the original convention to take account of the three new member States. Article 220 of the Treaty of Rome obliges the member States to enter into such an arrangement and, by virtue of our accession to the European Community—this is under Article 3 of the Act of Accession—we are under an obligation to accede to the convention, distasteful though some hon. Members may find it, subject to the necessary adjustments.

The draft text is in an advanced stage, but further negotiation is necessary before the agreement can be finalised. In a moment I shall mention the chief areas which are still under discussion and which are of special importance to this country. But first, particularly in view of what was said on the last occasion when these documents were before the House in the abortive debate on 18th January, I wish to make it clear that these documents relate not to legislation by the European Community or any of its organs.

They are, firstly, an existing international treaty to which the original six member States are all parties independently of any legislative function or treaty-making power of the European Com- munity, and, secondly, a draft of the proposed adjustments which are being negotiated currently with a view to the accession of the new member States, including ourselves, to the 1968 convention. Once the adjustments are settled, it will be necessary for each of the member States to approve the accession convention in exactly the same way in which it would approve of any other proposed international treaty. Thereafter, signature will take place at a suitable meeting of the representatives of the nine member States.

Following that, domestic legislation will be needed to bring the convention as adjusted into effect in this country and to enact the necessary changes in the domestic law of the different jurisdictions of the United Kingdom. I cannot, of course, commit the Government to a particular form of legislation, but it would appear to me that primary legislation by Act of Parliament would be appropriate.

The next and quite probably the final meeting of the experts who are negotiating the accession adjustments is due to take place about the middle of April. If they agree on a text to be submitted, official versions of the draft Convention will be prepared in all the necessary languages and the official texts will be considered at a meeting of the permanent representatives of the member States to the Council of Ministers.

The draft convention will then be submitted to the member States for their approval. At that stage, the text of the draft convention will be deposited in Parliament. This will enable the Scrutiny Committees of both Houses to consider the final text and to make, if so advised, a further recommendation for a debate.

It is expected that the text of the draft convention will be available for deposit in this way before the House rises for the Summer Recess. Thereafter, it will be for each member State to examine the convention and, when all are satisfied, the convention will be put before a meeting of Ministers of the member States for signature. This is unlikely to take place much before the end of the year. Obviously, there should be time for a debate to be held if it is requested by the Scrutiny Committee of either House. But even when the accession convention has been signed, legislation will be required in Parliament to enact the necessary changes in our domestic law, as I have already mentioned.

I now turn to three areas of special importance to the United Kingdom which are still under negotiation in the expert working party.

Mr. Christopher Price (Lewisham, West)

My right hon. and learned Friend said earlier that he was not sure what sort of legislation would be necessary. Later he seemed to be sure that primary legislation would be necessary. Can he clear up this point?

The Lord Advocate

I am not aware that I said that I would not be sure. What I would say—I am quite clear about it—is that in my judgment primary legislation by Act of Parliament would be appropriate in this case. Obviously, however, I cannot commit the Government to that.

Hon. Members

Why?

Mr. Ian Percival (Southport)

I am sure that the whole House would agree that primary legislation would be appropriate. The question is whether this can and might be achieved in law in any other way. We should like to hear the Lord Advocate say that it must be done by primary legislation.

The Lord Advocate

In my judgment, primary legislation is the appropriate way. Obviously, I cannot commit a future Government, or any Government, for that matter, to any particular kind of legislation. That is beyond what I am saying, and the House understands that very well.

I had just begun to say what the three special issues were. This country's observations on the draft accession convention were deposited in Parliament before the end of last year to give right hon. and hon. Members a chance to study them. The observations give a general indication of the main isues which are of importance to this country.

The three issues which are highlighted there have not been finally resolved and the Government would hope that hon. Members in attendance in the House tonight might care to give some indication of their views in regard to the proposed adjustments contained in the draft acces- sion convention. I would stress that this House still has an opportunity of giving its views on these issues in time for them to be taken into account in the negotiations.

The first of these issues arises out of the first paragraph of Article 17 of the 1968 convention, which confers exclusive jurisdiction on a court of a State which is party to the convention where those concerned in a contract have agreed in writing, or in an oral agreement confirmed in writing, that that court should have jurisdiction to settle any dispute arising from the contract or legal relationship between them.

Recent European Court decisions—and these are mentioned in the observations—have determined that writing is strictly necessary except in the case of a continuing trading relationship based on general conditions of trade. This falls well short of prevailing commercial practice where an agreement on jurisdiction is commonly incorporated by reference or is applied by standard commercial usage, for example, in the London commodity markets. In such transactions it would be impracticable and, indeed, undesirable to require writing to enforce such agreements on jurisdiction. The Government have proposed that, in commercial as distinct from consumer transactions, agreements on jurisdiction of this kind should be effectual.

The second issue also arises out of Article 17, which enables parties, where one at least is domiciled in a member State, to agree upon the courts of a member State which will have exclusive jurisdiction to settle disputes, subject to certain qualifications. The convention accords no recognition to agreements on jurisdiction between persons none of whom is domiciled in a member State, Thus a court of a member State, operating its own law, might determine not to give effect to such an agreement. In the Government's view, it is desirable in the interests of legal certainty and orderly dealing that all member States should respect and enforce an agreement by outsiders to settle their legal differences in the courts of a specified member State.

The third issue arises out of Article 28 of the convention and is related to the second issue, on which I have just touched. Under Article 28 as it stands there is no effective sanction against a court assuming jurisdiction in a member State in defiance of a choice of jurisdiction agreement and no remedy is open to the parties in the courts of the member State whose jurisdiction they chose. It would be unfortunate if this were not to be a ground for refusing recognition of the judgment reached by the court which acts in disregard of the jurisdiction agreement.

Following the debate on 18th January this year, the working party of experts of the Council of Ministers met at the end of January to continue the negotiations on the draft accession convention. They did not reach final agreement, so that the fears expressed on that occasion—that there would be no opportunity for further debate before the text was finalized—did not materialise. A further meeting is to take place, as I have already said, about the middle of April, when it is hoped that the issues which I have mentioned can be resolved to take full cognisance of the requirements of this country, which I have stated.

Mr. Neil Marten (Banbury)

If the issues are not resolved and the Government are forced to sign this convention, am I right in assuming that when it comes to translating the convention into our national law the House of Commons can always reject it?

The Lord Advocate

There is technically the possibility, if the convention were signed, that the House could reject it. It would create an embarrassing situation, but that technicality is open.

Mr. Charles Fletcher-Cooke (Darwen)

It is not a technicality.

The Lord Advocate

It is a technicality in the sense that a convention to which we have acceded and which we have solemnly adopted is binding on this country. The fact that Parliament had not ratified it would place us in an awkward and embarrassing situation in terms of international law. Indeed, it is a technicality which makes it awkward and embarrassing. The answer to the question is in the affirmative.

The hon. Gentleman put a question to me which is, perhaps, over simplified because, if these matters were not resolved in mid-April, it would be possible to have a further round of negotiation. The matters are not necessarily foreclosed if agreement is not reached in April, but we hope that they will be resolved at that time in a sense reasonably satisfactory to this country.

Mr. Marten

I was merely trying to be very helpful to the Minister, as usual, so that when he goes to negotiate and does not get his way, the negotiators will realise that we in this Parliament have the final say about whether we adopt the convention.

The Lord Advocate

Indeed. In that sense the power of Parliament is not a mere technicality: it is an effective power.

I have indicated that on the last occasion the negotiations were not completed, but we hope that they can be completed in the middle of April in a sense which will be reasonably satisfactory to this country. The British delegation will then be able to take account of any views expressed by the House tonight on these important issues. I invite the House to take note of the documents referred to in the motion.

10.27 p.m.

Mr. Charles Fletcher-Cooke (Darwen)

I now understand why this draft convention has not come before any of the organs of the EEC with which I am connected, in particular not before the Legal Affairs Committee of the European Parliament. It does not look as if it ever will, because it is not to be promulgated by the EEC at all in the form of a directive, or a regulation, or any such instrument. It is, as it were, in parallel with the normal EEC procedure, and to that extent my hon. Friend the Member for Banbury (Mr. Marten) is quite right in saying that our normal obligation to be bound, even if we dislike it, does not apply with the same force as it would to an instrument issuing from the EEC.

I do not think that it is quite right to say that that is a mere technicality. It would be like describing the failure of the American Senate to ratify the agreement of the League of Nations as a mere technicality. It has the most enormous effect.

It is perfectly open to this legislature, in a way which would not be open if this were a direct EEC instrument, to throw the instrument out. I therefore believe that we should support the Lord Advocate in his desire to strengthen the hand of the United Kingdom Government in modifying some of the unsatisfactory features of the draft. He has mentioned three, all of which are certainly impressive and would have a deleterious commercial effect upon this country in the sense that our legal and commercial services are a great source of invisible earnings.

People come here to take advantage of our legal system in a way that they do not go to the courts of any other country in the world. That brings in a valuable supply of foreign exchange. That being so, I think that we are entitled to go to our partners of the Nine to say that we are not prepared to sacrifice that steady income merely for the sake of harmonisation for harmonisation's sake.

I add one more aspect, which is not a commercial but a human matter, to the three areas that the Lord Advocate has mentioned. It has always been the privilege of a plaintiff, if the circumstances are right, to be allowed to shop around for his forum within certain limitations. That is a well-known privilege of a plaintiff. In particular, the plaintiff is normally entitled to bring the action in his own country provided that the defendant has a place of business, or some property in that country, and the terms of the contract—or the civil wrong—do not for other reasons inhibit it. The plaintiff is entitled to bring his action in the convenient forum—normally his own forum—if the defendant has property here, or is carrying on business here, unless the contract forbids him. As I understand it, that procedure is to stop between members of the EEC States. If this measure goes through, there will be an obligation to sue, other things being equal, in the courts where the defendant is domiciled. That is a big change. I am not saying that it is wrong, but it may result in hardships.

I give one example. There are provisions for legal aid in civil matters in this country, although some of us think that they are rather mean in comparison with the provision for criminal matters, which is generous. However, there are such provisions, and a plaintiff taking action in this country, as he could do as things are at present, might be entitled to legal aid, whereas if he is obliged to sue in the courts of the defendant's domi- cile he might be deprived of legal aid. Is it not an important consideration if we are depriving a potential plaintiff in this country of the opportunities of legal aid by insisting that he takes action in a country where legal aid may not be awarded on the same scale, or at all? I do not think that there is harmonisation of legal aid among the Nine, nor any prospect of it. That is in addition to the fact that to sue in a foreign court is a most extraordinarily difficult thing to do, and much more expensive than in this country.

Apart from the legal aid consideration of suing in a foreign court—with the enlargement of the Community, which is perhaps not threatened but promised, this applies even more—a plaintiff in this country may be forced to sue in the circumstances dealt with by the convention in a court of one of the newer and more remote EEC countries, which seems a great hardship upon a potential plaintiff. That is a fundamental objection to the convention. It is perhaps more fundamental than the three points that the Lord Advocate has made. It seems that we are depriving our plaintiffs of advantages that they enjoy now and that they will not enjoy if the convention goes through.

The Solicitor-General (Mr. Peter Archer)

I am wondering whether the hardship to the plaintiff that the hon. and learned Gentleman has mentioned might not be reflected conversely in hardships to the defendant. Is there any difference between the positions of the two?

Mr. Fletcher-Cooke

There may be an equality of hardship, but there may be a disequilibrium of hardship. I do not know, and it is a difficult calculation to make when there are nine and possibly 12 member States. But I do not see the necessity for having to make this calculation. It seems to me that the present system works perfectly well. There is no distortion of competition. There are no problems such as the enormous problems that there are in the matter of a free market, in free trade and in all the other matters that concern the EEC.

This harmonisation has got so far that I do not think that it can be stopped. But I hope that my arguments relating to hardship to the United Kingdom plaintiff—I think that it will turn out to be more of a hardship to him than to plaintiffs in other member countries—will be looked at again and perhaps advanced as a possible amendment to the convention as drafted.

10.35 p.m.

Mr. Emlyn Hooson (Montgomery)

I agree very much with the Government's isolation of these three issues as being the very important ones to the United Kingdom in the draft convention. I approve wholeheartedly of the attitude taken by the Government. These matters are of supreme practical importance to us, bearing in mind the commercial importance of the City of London and the tradition whereby so many people who have no connection with this country have their commercial disputes settled in our courts.

The Lord Advocate has dealt adequately with the matter, but I think that this House should make it clear that we support the Government in their stand. I hope that it will be made clear to those with whom we are negotiating that all parties in the House support the stand taken by the Government in this matter. It should be made clear to them that we consider these three issues to be of such fundamental importance to the United Kingdom that, if they insisted on their implementation, Her Majesty's Government would run the grave risk of the House of Commons not approving legislation subsequently laid before it, thereby creating great embarrassment which could be easily avoided if our partners in the EEC showed some understanding of the matter.

10.36 p.m.

Mr. Nigel Spearing (Newham, South)

I shall not detain the House for very long, because the main contributions were made in the earlier debate on 18th January. However, I wish to ask my right hon. and learned Friend two further questions which have arisen since.

In column 607 of Hansard of 18th January we see that the Lord Advocate referred, as does the convention, to maintenance awards subsequent to divorce being part of the subject matter of the convention. That will possibly cause complications, because the judgment and the grounds for divorce may differ from one country to the other. However, I am particularly anxious to know whether my right hon. and learned Friend can say whether the convention extends further to the upkeep of the children of any marriage.

In my constituency I have cases which have had or have potentially tragic circumstances where there have been problems of this kind in member countries of the EEC. We all know of the "tug of love" headlines within the borders of our own country. If, in future, this came within the convention, people would claim "But had it been British law we would have had him"—or not had him, as the case may be—and the result of this convention could be extremely unfortunate.

The second matter which has arisen since the last debate relates to Questions which my right hon. and learned Friend the Attorney-General has been good enough to answer. The first one of interest which he gave was a written Answer on 25th January, when he listed 20 or so organisations which were consulted by the committee which was advising him about this convention. I asked him whether the views of these bodies could be placed in the Library of the House, and he said "No".

I tabled a Question which received a Written Answer today and will, no doubt, appear in the Official Report tomorrow. I asked the Attorney-General: Which, if any, of the organisations and bodies named in his Written Answer. Official Report, 25th January, column 607, have made objections to, or criticisms of, the terms contained in EEC Council Document R/2963/76 concerning reciprocal enforcement of court judgments in member States. The Solicitor-General answered: When the organisations and bodies to which the hon. Member refers were asked for their views it was expressly stated that the consultations should be treated as of a confidential nature, and I am not therefore at liberty to answer the hon. Member's question. I raise this because on the question of procedure the Scrutiny Committee sometimes has memoranda of such documents, which it has obtained from outside bodies, printed in its reports. When the requests were put out there was this submission that the consultations would be treated as confidential. But when we are dealing with a matter of this importance, which can create problems, and when there is no particular opportunity for some of the observations to be put to the public, it seems a great pity. I hope that my hon. Friend will explain why this procedure was adopted in this instance.

I remind the House that on the last occasion we debated this matter some of us were not opposed to the harmonisation of enforcement in general—it could be useful—but we were sorry that it was being done in this instance by the EEC. There are certain overtones and it is not, perhaps, the best body to undertake such harmonisations.

10.43 p.m.

Mr. Graham Page (Crosby)

We are very grateful to the Lord Advocate for setting out so clearly the issues on which he is inviting us to express opinions so that he can go to the negotiations armed with the views of the House.

I support wholeheartedly the points that the Lord Advocate put before us. There must not be a demand for an agreement put in writing in the cases of many commercial contracts dealt with in this country. There are those outside this country who greatly appreciate the advantage of coming to our courts. An agreement is not necessarily in writing when it is commercial custom. If the Lord Advocate has already put that position, I am sure that he will have the support of the whole House.

In the second case even those not normally subject to our law could choose this jurisdiction. That, too, should stand. There is no sanction at present—and under this treaty there is no sanction—on a court of some other country adopting jurisdiction and purporting to hear the case there. I understood the Lord Advocate had in mind mainly commercial contracts. What is the position under the treaty of litigation affecting personal status—divorce, legitimacy and that type of case? Is this dealt with under the treaty and do we seek to obtain jurisdiction for parties who seek to come here?

I am not sure whether the treaty will affect trusts, on which there is so frequently a dispute as to jurisdiction. But we must not give away a very substantial income for this country. We must fight for it.

Furthermore, we must also fight for the respect in which our courts are held by the rest of the world. If that is to be undermined by some treaty, the Lord Advocate will have the full support of the House in our fight to see that we retain it.

10.45 p.m.

Mr. Neil Marten (Banbury)

I wish to support the Lord Advocate in the three points he made. I hope that he will pay great attention to the valid argument of my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke). He emphasised a human matter that must not be forgotten.

London is the centre of so much commercial law and we must guard that reputation carefully in the forthcoming negotiations. I hope that when the committee of experts next meets, each member will be given a copy of this debate set out in Hansard and will be made to read it. I hope the Lord Advocate will instruct them because it will show that he has the great support of the House on this matter.

I hope that this debate will strengthen the Lord Advocate's hand and the hands of the experts. If we do not get our way on this matter—and it is a fundamental one—we in this House have a right to reject any proposition that is put forward in legislation. I think that those concerned will appreciate what will happen to the convention if this House takes that course.

10.47 p.m.

Mr. Ian Percival (Southport)

This debate has been remarkable for the unanimity of opinion expressed. My hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) has already said that once we embark on this course there is no going back. Therefore, there are positive advantages if we get the matter right. What lies behind all this is the desirability of having reciprocal arrangements for the enforcement of judgments. That depends to a large extent on a jurisdiction which is universally recognised. Since we shall be universally committed, I think that it is important we get the matter right.

I shall take this opportunity to clarify one or two matters with the Lord Advocate. I agree with him that primary legislation is appropriate. What is the alternative? I know of no existing statute, except one to which I shall refer shortly, under which the law can be altered by delegated legislation. Unless this provision could be implemented under the legislation I have in mind, primary legislation would be not merely appropriate but necessary.

The only case I can think of in which primary legislation would not be necessary is where a treaty designation provision is involved under the European Communities Act. The House would be surprised, even alarmed, if it were informed that this could be implemented under those provisions. If it were possible as a matter of law for this convention to be treated as a treaty and so designated under the European Communities Act 1972, we would want the firmest Government assurances that it would not be so dealt with.

May I press the Solicitor-General a little further on that? Will he tell us whether there is any method other than primary legislation which could be adopted for putting this convention into effect as law in this country? If the answer is "Yes" we would all, certainly the official Opposition, like to have the firmest of assurances that the alternative method will not be used. In other words, we should like him to go a good deal further than merely saying that primary legislation is appropriate.

The second matter on which I ask for more information is this. In our last debate the Lord Advocate said: In March 1972, the Lord Chancellor and the Secretary of State for Scotland set up a Committee under the chairmanship of Lord Kilbrandon to advise on the adjustments which should be sought before the United Kingdom could accede to the 1968 Convention. That is exactly what we are discussing—what adjustments should be made, even at this late stage. The Lord Advocate went on to say that this committee had reported but, for some reason which is not clear, its report had not been made public. Will the Lord Advocate tell us whether there is any reason why it should not be made public now? Here we are considering whether there are any adjustments that we should either propose or support and we still do not know what was recommended by that committee.

The Lord Advocate went on to say: Since 1973, the United Kingdom delegation has been advised by a working party under the chairmanship of a High Court judge."—[Official Report, 18th January 1978; Vol. 942, c. 605]. May we not know even at this late stage, a little more about that? I must tell the Solicitor-General that I have made inquiries and I do not know of any High Court judge who knows who the High Court judge in question is. One would have to go round them all in the hope that one happened to ask the right one. That seems to be most odd.

I had assumed that the reason for seeking the advice of a High Court judge was so that he could canvass the opinions of his colleagues and they could advise us on the technicalities. No one knows as much about them as the High Court judges. May we now be told a little more? Is there any reason why we should not be told who the High Court judge is? Is there any reason why we should not be told whether he, either alone or with the advice of his colleagues, agrees with the recommendations that have been made and whether he thinks that there are any further matters that ought to be pursued? I think that it is a good idea to ask a High Court judge about this, but it seems strange that all we know about it is contained in column 605 of Hansard for 18th January.

There can be no doubt that the official Opposition—and I believe everyone in the House—are in full agreement with the Government over the stand which they have taken on the three matters about which the Lord Advocate told us. The question of the agreement was dealt with fully and forcefully by the Select Committee on European Legislation in another place. In its 45th report, of 26th July 1977, in paragraphs 19 to 22 it made the case against Article 17 in its present form. It stressed the commercial advantages which would be lost if the article remains as it is.

May I echo what was said by my right hon. Friend the Member for Crosby (Mr. Page)? It is attractive to see how much respect there is over a large area of the commercial world for commercial arbitration in London. We would be mad if we allowed anything to happen that impinged upon that, not merely because of the revenue it brings in, but because it is something in which we lead the world. For goodness sake, do not let us hinder our ability to do it or narrow our opportunity to do it.

I am happy to echo what has been said by my colleagues. We stand firmly with the Government over the convention. The Government's observations to COREPER talked of its being inconvenient. It would be much more serious than that because if adjustments were not obtained the House would not look favourably on any legislation, direct or indirect primary or secondary, designed to give effect to the convention. It is right that a warning note should be sounded now and in forthcoming discussions.

We knew all this during our debate on 18th January, though we did not have the opportunity to say it. I was about to do so when the proceedings were brought to an abrupt end. Since then, there has been another meeting of experts at which all this was discussed. It is rather disappointing that agreement was apparently not reached. What is holding up the discussions? How far are we getting on this point? Are our requirements being listened to sympathetically? Is it just a question of finding the right words, or is there a real block on this issue? There is time between now and April for us to consider what the Solicitor-General tells us and to make further representations if necessary.

The Government's observation to COREPER asked if the European Patent Convention came within Article 57 of the Jurisdiction and Judgments Convention. I gather that there is doubt about this and that difficulties would arise if Article 16(4) of the Jurisdiction and Judgments Convention prevailed. This is a matter for clarification rather than adjustment. There are people who will be anxious to know how the discussions are proceeding. They will be keen to hear the Government's assurances that the matter has been sorted out or, if it has not, that the query will be pressed in further discussions.

There is a final matter on which I hope the Solicitor-General may help us. The Lord Advocate invited us to use this debate as an opportunity to express any doubts we had about the terms, and therefore about the adjustments to be sought. I should like to hear a little about the biggest danger, that of taking domicile as a basis of jurisdiction.

In the United States of America estate duty varies from state to state in the rates which are applied. The decision as to which state collects the taxes also de- pends on domicile, so those who want to avoid their taxes are constantly trying to obtain domicile in states where the rates of tax are lowest and states where taxes are high are endeavouring to show that those who die possessed of a lot of money were domiciled within those states. I recall a lecture at Columbia University entitled "Death and taxes are certain but what of domicile?".

There are endless arguments and endless litigation about the question of domicile. In any field in which we have experience where domicile is important—as it is in the divorce law—many difficulties arise in that connection. It seems to us that when one makes domicile a test in a group of nations like the European nations there are some particular difficulties which one has to face because the law on domicile varies from member State to member State. As I understand it, the question of domicile is to be determined according to the law of the member State. In other words, it is not contemplated that there will be some common law as to domicile taking the place of the laws as to domicile of the member States.

It is possible—and this was adverted to by the Select Committee of the other place at paragraph 30 of the report to which I have already referred—that a person may not be domiciled, according to the law of a member State, in any member State. For instance, we base our law of domicile on a fixed and settled intention to remain. The French base their law of domocile on the point at which the principal residence for the time being happens to be.

As was shown in the paragraph of the Select Committee report I have referred to, a Frenchman might have a principal place of residence in England, but intends to return to France. That person would therefore be domiciled not in England according to the law of England but in France, and England would not have jurisdiction in the courts of England. Yet, according to the laws of France, he would be domiciled in England because his principal place of residence was there and the courts of France would not have jurisdiction because, according to their law, he would not be domiciled in France.

By the same token, a person might be domiciled in more than one member State according to the law of different member States.

It is not necessary to multiply these examples to see the scope for confusion if that little summary of possibilities is anywhere near accurate. I believe that it is more than near accurate; I believe that it is entirely accurate.

I should like to know what the Government feel about these difficulties. We agree with the convention and we want it, provided that we get it right. But we do not want to change to a new basis of jurisdiction which immediately brings in many new questions which will be the subject of more litigation before they are resolved.

The example that I gave of a Frenchman who might not be domiciled either in this country or in France could not be put right by litigation. If it is right, the only effect of litigation would be to prove that he could not sue or be sued anywhere. Therefore, something must be done by way of legislation rather than litigation to avoid it arising. The Opposition would be grateful to the Solicitor-General if he would comment on this aspect of the matter—namely, domicile—about which there will undoubtedly be difficulties. In that respect, we should like to know what ideas the Government have for removing as many of those difficulties as possible before agreeing to the convention.

Mr. Marten

Does my hon. and learned Friend agree that one great advantage of the document as it is—he has illustrated it very well—is that it would be a splendid basis for the examiners for the law final?

Mr. Percival

That is undoubtedly right. It merely confirms what I said. Therefore, let us deprive the examiners of this wonderful area of doubt and difficulty.

There will be difficulties in this area if the convention remains as it is. We ought to try to spot those difficulties with more particularity than we have at the moment and seek to make adjustments to deal with them in advance.

Subject to that, the Opposition welcome these documents and the steps that the Government are taking.

11.7 p.m.

The Solicitor-General (Mr. Peter Archer)

My old granny used to say that all things come to those who wait. The hon. and learned Member for Southport (Mr. Percival) and I have had to wait through two debates to raise and answer the questions that we are discussing tonight. I agree with the hon. and learned Gentleman that one important aspect of what we are doing is to ensure that future law students are not plagued with unnecessary questions arising out of these matters.

I should like to express my appreciation to all Members who have taken part in the debate, beginning with the hon. and learned Member for Montgomery (Mr. Hooson) and going on to the right hon. Member for Crosby (Mr. Page), for their support for the negotiating team. Obviously, one of the problems about debating this kind of matter is that, on the one hand, we would all like to exchange as frankly as possible our views on the subject matter of the negotiations, but, on the other hand, we must do so without undermining the position of those who are conducting the negotiations. There is no doubt in the minds of the negotiating team of the importance of preserving the rights of those who wish to bring their commercial cases and arbitrations to London to continue to do so.

I should like to take up one matter which was raised by the hon. and learned Member for Darwen (Mr. Fletcher-Cooke). He said that, as what we were debating was not really a Community document in the normal sense, we were not bound in quite the same way as with Community documents. I appreciate the motives which prompted the hon. and learned Gentleman to say that, but honesty compels me to say that we are under an international obligation. Article 3(2) of the Act of Accession imposes on acceding members an obligation to enter into negotiations on the adjustments necessary to enable newly acceding members to accede to the convention. Clearly that means that there must be good faith on both sides of the negotiations, but it also means that we for our part have to enter into the negotiations, anxious, if we can, to reach a conclusion on what are the necessary adjustments to enable the garment to fit our shoulders.

The hon. and learned Member for Darwen also mentioned the hardships on a potential plaintiff if, as he said, the sole criterion was domicile. As I ventured to point out at the time, one always has to balance the hardships of the plaintiff against those of the defendant, and if the matter rested there I am not sure that his point necessarily takes the matter much further.

But the hon. and learned Member will have observed from Article 5 a number of alternative bases of jurisdiction. Some of the examples he gave do admit of alternative bases. Article 5 adds to the domicile criterion in matters relating to a contract, in the courts of the place of performance of the obligation in question. So that the hon. and learned Gentleman will not have overlooked that domicile is not the sole criterion with which we are dealing.

In that connection it might be helpful if I said a word on legal aid. Article 44 provides for legal aid in enforcement proceedings, and that is intended, we hope, to be extended under Article 20 of the draft accession convention, which is under negotiation at the moment. It is true, of course, that that relates to legal aid for enforcement. It is possible that someone will say that if he has a judgment given against him in a particular country, this convention makes provision for it to be enforced, and what he wants is legal aid to defend it in the initial proceedings in the country where they are taking place. At the moment this is a matter for the country concerned. Some countries offer legal aid to their nationals wherever they may be litigating. The United Kingdom has normally taken the view that it should make legal aid available within the normal provisions for people who are litigating in the courts of this country, whatever their nationality. Without wishing to elaborate further or commit anyone to anything, I should say that that will require some additional negotiation following upon this convention, but it is not part of the arrangements for the convention itself.

My hon. Friend the Member for Newham, South (Mr. Spearing) raised two questions. He asked whether the convention applied to the maintenance of children. The position is that matters relating to status are expressly excluded from the convention as it stands, which means that matters relating to the custody of children would be excluded. However, matters relating to maintenance arising out of matrimonial matters are within the convention, so the situation that by hon. Friend posed as between husband and wife would be within the convention. And there is little doubt that maintenance of children would be within the convention as it stands, but one of the matters being negotiated relates to clarifying that maintenance of children comes within the convention, if there were any doubt about it.

My hon. Friend raised the question of organisations which were consulted in this matter. He asked why, since they have been consulted, the House cannot be told what they said. The difficulty is that they were consulted on a confidential basis. What they said was clearly taken into account by the Kilbrandon Committee.

That brings me to the question raised by the hon. and learned Member for Southport. He asked what was so secret about the Kilbrandon Committee, and why should we not publish the whole thing? The difficulty arises from the problem I ventured to mention a few moments ago, that the committee was providing a negotiating brief for our negotiating team. One is at a disadvantage if the brief is made fully public before the negotiations start.

One must consider what can and what cannot reasonably be made available to the House. For example, the hon. and learned Member for Southport asked for the name of the High Court judge who is chairing the working party. I have done some rapid consultation on this because I cannot see why it needs to be such a closely guarded secret. I had thought of telling the hon. and learned Gentleman on a confidential basis, but it seems that there is no reason why we should even make it confidential. It is Mr. Justice Kerr. In these matters we have to try to preserve a balance between protecting our negotiating team from disclosing its cards before the hand begins and trying to make as much information available to the House as we reasonably can.

The matter which has occasioned most questioning in the debate is that of "primary legislation or something else?" For most of the proposals we are discussing, clearly primary legislation would be the appropriate way of doing it. I divide this matter into two parts. First, I want to outline the order in which events will take place relating to primary legislation.

The convention imposed an obligation in international law on member States to make amendments to their domestic law. At the stage where the United Kingdom ratifies, it will be accepting the undertaking in international law. The practice of the United Kingdom is and has always been, as I understand it, not to ratify any international obligation until our domestic legislation complies with it so that we can ratify in safety. It does not normally take Parliament for granted.

That would be the order in which the Government would propose to deal with this matter. Legislation would be introduced first, Parliament would have the opportunity to discuss it, and afterwards, assuming that our domestic law enabled us to comply, the Government would ratify. But I repeat that we would be under an international obligation, and the House would probably have to decide whether flagrantly to break a promise, subject only to the expectation that other people who are negotiating will negotiate in good faith to enable us to accede to the convention.

Mr. Fletcher-Cooke

The obligation is to negotiate, and negotiate in good faith, to see whether it is possible to agree to adaptations to suit our purpose. If it is not possible to agree—as, with all the good faith in the world, it sometimes is not—about the adaptations, where is the breach of faith?

The Solicitor-General

Perhaps that is a matter for debate on which we should embark if it arises. I think that it might be pointed out with some force—I do not want to concede any more to other people who might take another view—that we knew what this convention was at the time of the Treaty of Accession, and that, if we thought that it was completely impossible for us to accede to it, that would have been the time to say so. But I shall not pursue the matter further than that. I am sure that the hon. and learned Gentleman appreciates my reasons.

While we are on the subject of legislation, I should point out that one matter on which we may have to legislate is the whole basis of the English law of domicile, as the hon. and learned Member for Solihull (Mr. Grieve) has previously pointed out. I do not think that I would seek to add very much to what he said on the subject.

It is true that it was said in the report made by the other place: It appears to the Committee that legislation will be needed in the United Kingdom to modify, for the purposes only of the Convention, the English and Scottish concept of 'domicile' of an individual so as to equate it to residence of a sufficiently established nature in the United Kingdom, without the intention of permanent residence. The convention leaves the definition of "domicile" to domestic jurisdiction. It would obviously make sense that there should be no serious inconsistencies between the various definitions of domicile, and it may be—I say no more than this, and I am not attempting to drop any broad hint—that, if we were so minded to legislate on the concept of domicile in English domestic law for this purpose, it might be a sensible time to look at it for other purposes as well so that we do not have one basis of domicile for one purpose and a totally different basis for another. But that is something that we shall all have ample opportunity to consider when the question arises.

Mr. Percival

Is that right? Are we to have ample opportunity to consider it when it arises? It arises now. We know that this convention will go through. I quite agree with what the Solicitor-General said a moment ago. It is not all dependent on domicile, because there are exceptions. But the basic rule is to be that jurisdiction is to be determined by the law of domicile. We know that we shall be faced with that. Is not now the time to be trying to decide what we shall do about it, or, indeed, doing the preliminary work, rather than waiting until it goes through and then doing it?

The Solicitor-General

I certainly agree that now is the time to be doing preliminary work. Some preliminary work is being done. I hope that the hon. and learned Gentleman will not press me to announce more about it at present because there really is very little at this stage to announce.

There remains on this part of what I was asked the point raised by the hon. and learned Member for Southport as to the possibility of an Order in Council under Section 1(3) of the European Communities Act. I think that the right hon. Member for Crosby raised this matter in the previous debate. Perhaps I may spend a few moments on it, because I think that its implications extend probably outside the subject matter of this debate, and it may be helpful if we all try to understand it.

Section 2(1) of the European Communities Act confers direct applicability on all such provisions of treaties as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom". Section 1(3) empowers the Crown by an Order in Council to declare that a specific treaty shall be added to the treaties to which Section 2(1) applies. But Section 2(1) does not provide that the entire contents of such a treaty shall be directly applicable. What it provides is that those provisions are to be directly applicable which the treaty itself provides, by implication or expressely, shall be directly applicable.

Mr. Marten

Regulations.

The Solicitor-General

We are talking about treaties here, not regulations. Under the European Communities Act a treaty is directly applicable only in relation to those provisions of the treaty which the treaty itself intends to be directly applicable. Therefore, if the Crown, by an Order in Council, added a treaty to the list, we would need to look at the provisions of that treaty in order to see which of them were directly applicable without any further enactment.

The major provisions of this convention are clearly not intended to be directly applicable, so quite clearly this is not a method of enacting the major provisions of the convention. But I want to be entirely frank with the House on this matter. There may be some provisions which if looked at in detail, particularly when we know what the final form of the convention is, might be said to be intended to be directly applicable, and it would be open to the Crown to deal with them in that way.

I shall go further, because, again, it is important that we should be frank. This might be the sensible way of doing it. It might be a much better and neater way of drafting than to embody those particular provisions in direct legislation. We are talking of very few and very limited provisions at the outside.

I assure the House that there is no intention on the part of the Government to think of a way of bypassing the House on this matter. Most of these provisions, and all the important provisions, will require primary legislation anyway. If there are some that could be more sensibly legislated for by the other method, obviously we would try to ensure that those were before the House in some form at some stage.

However, I hope that the hon. and learned Gentleman will not press me for any further undertakings on this matter, because we do not know what will be sensible when the time comes. I hope that he will be satisfied that we are not trying to pull a fast one.

Mr. Graham Page

The Solicitor-General has disclosed a most horrifying position, namely, that some of our rules of court might be embodied in a treaty and we should have to find them in a convention. Others we might legislate for in primary legislate, and I presume that from that we might legislate for some by rules of court or some other process. I am very sympathetic to the Solicitor-General on this, because it is embodied in the legislation at present. We had this confusion in a previous debate, but it presents a horrifying spectacle. I hope that the Government will make every effort to take what they can out of the treaty and put it in primary legislation, otherwise it will be very confusing for practitioners.

The Solicitor-General

As the right hon. Gentleman has fairly said, the position arises from the 1972 Act. It is quite clear from what my right hon. and learned Friend and I have said that it would be quite impossible to ratify this convention unless a substantial part of the provisions had already been enacted in primary legislation. I hope that in the circumstances the House will think that for the moment that is protection enough.

Mr. Spearing

I am grateful to my right hon. and learned Friend for outlining the position, but for the layman who might be the client at law, let alone for the practitioner, can he explain why it would not be possible to put all the requirements of any convention in domestic legislation? Surely there is nothing to prevent it from going in both, if necessary, and that would provide a consolidation Act, if necessary, which would avoid the difficulties which the right hon. Member for Crosby (Mr. Page) has rightly pointed out.

The Solicitor-General

My hon. Friend is right. That will normally be a valid option. I am saying only that, not having discussed all the implications of the present convention with the parliamentary draftsman, I cannot speak in advance about what technical problems might arise, but ordinarily I hope that what my hon. Friend has described will be the method which is adopted.

The hon. and learned Member for Southport asked me about the progress of the negotiation;. There are at least two difficulties here. First, an account of the progress of negotiations can sometimes be an inhibiting factor to the negotiators themselves. Secondly, I am told that it is not the practice to report on the progress of negotiations. I will break both rules to this extent. I am told that there is reason at least for cautious optimism on the point on patents which he raised. I hope that I shall be allowed to leave it there.

The obligation to adhere to the treaty is not an unfortunate and barely foreseen consequence of our joining the EEC. It is not even an unfortunate consequence of the original convention. The provision for reciprocal enforcement of judgments has been needed for many years, as the right hon. Member for Crosby and the hon. Member for Harrow, East (Mr. Dykes) said on the last occasion we debated this matter. The Kilbrandon Committee has pointed out that this country stands to benefit from becoming a party.

I was asked in the course of the last debate what are the advantages of adhering to this convention. I can summarise them briefly. They are, first, to clarify which court has jurisdiction, instead of having a number of national courts each claiming to deal with the same case and each declining to recognise what others have clone. Secondly, it is to ensure that when a question has been decided and judgment given everyone knows where he is, and is assured that the courts of another member State will enforce the judgment and that the lawyers will not have a field day in reopening it.

I am grateful to all those hon. Members who have spoken in this debate, both for their support and for their moderation. It goes without saying that what has been said will be passed on to the negotiators, and I hope that when the matter comes before the House again there will be reason for satisfaction.

Question put and agreed to.

Resolved, That this House takes note of EEC Documents Nos. R/2962/76 and R/2963/76 on Jurisdiction and Judgments Convention.