HC Deb 18 January 1978 vol 942 cc602-24

11.1 p.m.

The Solicitor-General (Mr. Peter Archer)

I beg to move, That this House takes note of Commission documents Nos. R/2962/76 and R/2963/76 on Jurisdiction and Judgement Conventions. I was expecting my right hon. and learned Friend the Lord Advocate to introduce the debate. Perhaps I can assist—[Interruption.] We shall probably get on more quickly if my right hon. Friend the Treasurer of Her Majesty's Household leaves me to do so as briefly as possible. I am glad to see that my right hon. and learned Friend has now returned to the Chamber.

11.2 p.m.

The Lord Advocate (Mr. Ronald King Murray)

I apologise to the House. There was a little disorganisation.

I beg to move, That this House takes note of Council Documents Nos. R/2962/76 and R/2963/76 on Jurisdiction and Judgements Convention. The second of these documents is the English text of the Convention of 27th September 1968 on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, and the Protocol of 3rd June 1971 on its interpretation by the Court of Justice. The first document is the preliminary draft convention on the accession of the new Member States to the 1968 Convention and to the 1971 Protocol. I will call this the "draft Accession Convention".

The instruments of which the House is invited to take note are not, as is usually the case in these debates, draft regulations or directives which are awaiting the approval of the Council; they are treaty instruments to which the member States are to become parties. Eventually it will require the approval not of the Council but of the member States to bring the Accession Convention into effect. The House will therefore have further sight of the final text before it is adopted and the treaty is ratified. The draft is not yet in its final form.

The origins of these instruments are to be found in Article 220 of the EEC Treaty, which provides that the member States shall enter into negotiations to secure for their nationals the simplification of formalities governing the reciprocal recognition and enforcement of judgments. That provision was given effect by the 1968 Convention. It was, of course, negotiated only by the six original member States, and so it took no account of the particular problems of the United Kingdom. By the time we joined the European Communities, the 1968 Convention had been ratified by the Six—in some ways that was unfortunate—and it entered into force between them on 1st February 1973. The Protocol on its interpretation by the Court of Justice was concluded, again by the six original member States, in 1971, and it entered into force between them in 1975.

Mr. Nigel Spearing (Newham, South)

It may be for the convenience of the House if my right hon. and learned Friend could give us his opinion on this matter. He has just said something that is to our surprise: that is, that this is not in the final form—though that should not be surprising. But he said something about it coming back to the House again. He used the phrase a "sight of it". Can he assure us that it will be moved and debated on a Question and motion on the Floor of the House, or will it, perhaps, be going to the Scrutiny Committee and not of necessity coming to the Floor of the House? This is a matter of some procedural importance and interest to some of my hon. Friends who are present tonight.

The Lord Advocate

My hon. Friend is very beguiling, as ever, but I must not yield to temptation. I can go no further than what I have said. My hon. Friend knows very well that it is not a matter for me to dispose of the time of the House and say how it should be arranged. It is right, however, that I should reiterate that, as this is a treaty, it requires to be ratified. The fact that I have already stated that this is something that the House will have a sight of at least means that the House will have an opportunity to make the necessary arrangements, if so advised, so that there could be a full debate if that were required and desired. That opportunity would be there, and beyond that I clearly cannot go.

Mr. Graham Page (Crosby)

This will come before the House on the treaty being designated a treaty which we have to bring into the law here. It will then come before the House again when we have to change the law here to bring it in line with the treaty.

Mr. Ian Percival (Southport)

The answer is "Yes".

The Lord Advocate

In so far as the right hon. Gentleman is saying that this House will have to legislate in order to give effect to the treaty, that is undoubtedly right. Appropriate legislative machinery will have to be enacted. My hon. Friend the Member for Newham. South (Mr. Spearing) is asking me to say that I undertake that there will be a debate of a certain kind in a certain form. I cannot do that. But that legislation of this House is necessary is, it seems to me, a sufficient guarantee that opportunities will exist for hon. Members to press for the kind of debate that they wish.

Mr. J. Enoch Powell (Down, South)

Will the right hon and learned Gentleman clear up once for all the question whether it will be necessary for this Convention to be recognised as a treaty under, I think, Section 14 of the European Communities Act, or else is it the proposition that, since this Convention is implicit in the Treaty of Accession, it does not need to be added by the procedure of Section 1 of the 1972 Act, in which case no debate would necessarily arise upon the decision itself, though, of course, there would be debate upon the domestic legislation necessary to implement it?

The Lord Advocate

That is very much the kind of matter that I had in mind. The right hon. Gentleman has focused exactly the kind of doubt that can exist in this area. Without notice, however, I am not prepared to go beyond what I have already said.

Article 63 of the 1968 Convention foresaw the possible enlargement of the EEC and required any new member States to accept the Convention as a basis for negotiation. This obligation was embodied in Article 3(2) of the Act governing the conditions of our accession, which required the United Kingdom and the other new member States to enter into negotiations with the original Six on the adjustments necessary to enable the new member States to accede to the 1968 Convention.

The negotiations began in November 1972 with the setting up of a Council working party, and this working party negotiated the necessary adjustments and reported in December 1976. The draft Accession Convention prepared by the working party was submitted to the Governments of member States in the spring of 1977, and they were invited to submit their comments to the Council of the EEC by September of that year. Before I come to the comments that Her Majesty's Government have made, I would like to say a few words about the 1968 Convention and the amendments of it proposed in the draft Accession Convention.

Although Article 220 of the EEC Treaty speaks only of recognition and enforcement of judgments, the 1968 Convention is not so confined; it also regulates the circumstances in which the courts of member States may assume jurisdiction over matters which have an international element, and it is this part of the Convention which will make the most significant impact on our law.

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. This committee reported in October 1973, and the conclusions of its report have largely determined the stance of the United Kingdom negotiating team in Brussels. For this reason, the report has not been published. Since 1973, the United Kingdom delegation has been advised by a working party under the chairmanship of a High Court judge.

In the light of our Treaty commitment to accede to the 1968 Convention and its Protocol after making necessary adjustments, the scope for making changes in the Convention is restricted, and Her Majesty's Government believe that in general its provisions can be accepted and will work satisfactorily. Most of the adjustments which we considered essential for the operation of the courts in the different parts of the United Kingdom will be made if the draft Accession Convention is adopted.

Of the principal adjustments which would result from the draft Convention, three provide additional grounds of juris- diction of peculiar importance to our legal systems. They deal with maintenance, Admiralty proceedings and trusts, and a word about each of these may be appropriate.

First, as regards maintenance, the 1968 Convention allows proceedings for maintenance to be brought only in the courts of the country where either the claimant or the respondent habitually resides. In this country maintenance awards are most commonly made in consequence of divorce proceedings, and the divorce proceedings will often have been brought in courts other than those of the habitual residence of one of the parties. As a result, many maintenance awards made by our courts would not have been enforceable in the other countries of the Common Market. An appropriate amendment, to be found in Article 5(3) of the draft Accession Convention, will overcome this anomaly.

Next, I come to Admiralty proceedings. The jurisdiction of the Admiralty Court over maritime disputes is in the majority of cases based on the presence of ships or cargo in the United Kingdom. It is an arrest jurisdiction. But the 1968 Convention does not provide for such a jurisdiction, except indirectly in so far as it allows other Conventions to continue to operate. Our Admiralty jurisdiction accords generally with the provisions of the Brussels Convention of 1952 on the Arrest of Seagoing Ships.

The preservation of other relevant Conventions does not, however, provide a complete answer, first because two of the member States, Denmark and Ireland, are not at present parties to the 1952 Convention, and secondly because actions for the limitation of a shipowner's liability are not covered by it. This latter point is met by a specific provision in Article 6 of the draft Accession Convention.

As regards the preservation of existing conventions and the Brussels 1952 Convention in particular, there are a number of important provisions in the draft Accession Convention. Any doubt about the right of member States which are parties to another convention to rely on that convention even as against nationals of another EEC State which is not party to the other convention is resolved by Article 24 of the draft Accession Convention, which article also provides for recognition and enforcement of any judgments given in reliance on such other conventions, present or future. Moreover, the peculiar needs of Denmark and Ireland are met by a transitional provision in Article 35, which allows them to exercise Admiralty jurisdiction pending their accession to the 1952 Convention.

The third additional jurisdiction concerns trusts. None of the original six member States has a legal concept akin to the common law notion of a trust, and the 1968 Convention accordingly makes no mention of trusts. Amendments proposed in the draft Accession Convention will plug this gap. They will ensure, for instance, that in proceedings concerned with the internal relatonships of an English or Scottish trust the appropriate courts of the United Kingdom will will continue to have jurisdiction.

Mr. Patrick Mayhew (Royal Tunbridge Wells)

The right hon. and learned Gentleman said a few moments ago that most of the adjustments that the Government considered essential for the working of our own courts were included in the document. But that suggests that some are not. Will he tell us what they are?

The Lord Advocate

I propose to do that. If I omit some that the hon. and learned Gentleman thinks to be important, perhaps he will take them up with my right hon. and learned Friend the Solicitor-General when he replies to the debate.

Other major proposed amendments relate to insurance. The 1968 Convention contains special provisions governing jurisdiction in insurance proceedings. Their underlying assumption is that the insured is at such an economic disadvantage as against the insurer that the Convention must help to redress the balance by expanding the number of jurisdictions where the insured can sue, and limiting those where he can be sued. These assumptions do not hold good in many fields of commercial insurance. Having regard to the United Kingdom's major interest in insurance matters as the centre of the world's insurance market, the Kilbrandon Committee thought that the most important point for the United Kingdom in the negotiations was to secure amendment of the relevant articles—namely, Articles 7–12—and, that at the very least, they should not always apply to marine and aviation insurance. This result should be largely achieved by the amendments in Articles 8 and 9 of the draft Accession Convention.

I said earlier that the draft Accession Convention now before the House was referred by the Council to the Governments of the member States for their comments. The United Kingdom submitted observations, of which copies were placed in the Libraries of both Houses before Christmas. Hon. Members who have studied them will see that, in addition to a number of technical points, there are three points of substance on which we would like to see further amendment. They are concerned with agreements on jurisdiction which, in accordance with Article 17 of the 1968 Convention, are effective to give specified courts jurisdiction only if a number of conditions are satisfied.

The issue to which Her Majesty's Government attach most importance concerns the form of such agreements. The first paragraph of Article 17 provides that a jurisdiction agreement shall be effective only if it is in writing or is confirmed in writing. This provision has been interpreted by the European Court so narrowly that only an express written provision about the court which is to have jurisdiction will do. It concedes a limited exception for agreements made in the course of a continuing trading relationship. But, every day, agreements worth many millions of pounds are made in which the parties intend to cover jurisdiction without expressly mentioning it. The jurisdiction clause is not contained in the agreement in writing but is incorporated by reference to the standard conditions of, for instance, the London commodity markets. It would be most undesirable if such agreements reached between parties of equal strength negotiating at arm's length, were to become ineffective. We have, therefore, proposed that, in commercial as distinct from consumer transactions, the strict requirement of writing should not be retained.

The second point is that jurisdiction agreements are effective only if one or more of the parties is domiciled in a member State. We see no reason why such agreements should not be effective even though none of the parties is a Community domiciliary. There is an international demand for the services of our courts to which we attach much value. A high proportion of the cases in the Commercial Court are cases in which neither party is British, and in many of these neither party is a Community domiciliary. If the parties wish to see their disputes litigated in London or—indeed, Edinburgh—unless there are overriding considerations to the contrary we see no reason why effect should not be given to their wishes.

The third point is related to the second. If a court assumes jurisdiction in disregard of a choice of court agreement, we propose that this should in itself be a ground for refusing recognition of the resulting judgment.

The draft Accession Convention has been referred back to a Council working party, which will be meeting next week to discuss the observations of the member States. In these discussions, the British delegation will be able to bear in mind the views expressed in the House tonight. Subject to a satisfactory resolution of the points raised in the United Kingdom observations, the Government believe that the draft Accession Convention contains all the adjustments necessary to enable the United Kingdom to accede to the 1968 Convention. In that light, I invite the House to take note of this document.

11.20 p.m.

Mr. J. Enoch Powell (Down, South)

This is an extraordinary hour and a half that the House is having. In the observations which I want to make I should like to make it clear at the outset that there is implicit no criticism of the Lord Advocate, who, as I well remember, was not one of those who voted that a Lord Advocate should ever find himself in a position of having to make a speech such as he has just made from the Box.

It is really inconceivable that this House should be told that the far-reaching changes in the laws of this country have to be made in pursuance of a convention when—I think that the Lord Advocate admitted this in response to the query of the right hon. Member for Crosby (Mr. Page) and myself—we shall not even have the semi-formality of adding that convention to the documents which are treaties for the purpose of the 1972 Act.

When we come to the consequential legislation, we shall be told that this is not, in the ordinary sense of the word, debatable since it is in pursuance of a convention which we have already entered into and ratified.

I shall give two brief quotations from the Explanatory Memorandum. The first is: The accession of the United Kingdom…will require…substantial amendment of existing law in relation to the grounds on which the courts of the United Kingdom exercise jurisdiction, as well as significant (although less substantial) changes in the law relating to recognition and enforcement of foreign judgments and consequential amendment to procedural rules. The second quotation, from paragraph 7, is that the Convention will involve the abandonment of certain long established rules in both England and Scotland". In the former case, these are matters no doubt requiring intricate and careful legislation which certainly ought not to be made by Parliament under any sort of duress, and they should not come before either House in a form in which the Houses are hound by a pre-existing and ratified convention.

It is intolerable that we should have been warned that we should have "further sight of the final text" of the Convention, after which it would be necessary for the House to legislate to make changes of a substantial character.

Incidentally, although hon. Members have had before them the Explanatory Memorandum, for most of them the secret was revealed only in the course of the right hon. and learned Gentleman's speech that, consequent to the memorandum of last May, there has been an exchange between this Government and the Community authorities which was deposited in the Library of the House. We tried to pick up as best we could from the Lord Advocate's speech the points in that communication. It is intolerable that it was not brought to the attention of right hon. and hon. Members that a document material to the debate as lying in the Library unbeknown to them and, presumably, to anyone but the Government.

Those of us who are enemies to the cause of such a consequence as this are often accused that in these debates we are unconstructive. That is a contradictory accusation. On the occasion, however, I wish to make a very specific suggestion to the Government with which I hope both sides of the House will associate themselves. I am not denying that in the position in which we find ourselves we are bound to ratify such a Convention and that we are bound as best we can to implement it. I am not seeking to deny that that is implicit in the present fact of our membership of the EEC. But, at least we in this House can decide what opportunities there should be of debate and of understanding, and of enabling those whom we represent to understand, what is compulsorily happening to them. At least, that is a matter which we have open to us.

My suggestion is that, before there is any move for ratification, the legislation, and possibly the new rules which will have to be made in pursuance of the Convention, should first be produced by the Government and made available for hon. Members. That would not involve the Government in any extra work. The Bill will have to be drafted to give effect to most of these changes, and to those which do not require legislation effect will presumably have to be given by new rules of the courts. Those will have to be drawn up. They will have to contain the necessary degree of correctness and precision. That is work that will have to be done.

I suggest that that work should be done first and that both Houses should have available to them a draft Bill and draft rules before the question of ratification arises, so that at any rate when we come to the actual legislation we are not in the position in which we found ourselves back in 1972, or in a worse position, of being told, whenever we seek to raise a matter or introduce an amendment, "You cannot do that because this matter is already settled and binding under a Convention which has been entered into and ratified."

At least, it would be decent and, I believe, in the long run, in the interests of the Government for both Houses to have available to them a draft Bill. This very much concerns another place since, whatever views hon. Members may hold of it, there is no doubt that in that place there is assembled considerable legal knowledge and experience which should be brought to bear upon such legislation as this. I therefore put it to the Government that this should be done.

No doubt the Lord Advocate cannot give an answer off the cuff tonight but I hope it will be supported on both sides of the House that the legislation, in the widest sense of the term, which will eventually become necessary should be available in draft form before ratification takes place.

I appreciate that the right hon. and learned Gentleman will not be able to promise that a debate will take place before ratification, on the assumption that proceedings under Section 1 of the 1972 Act are not necessary. Nevertheless, I hope that the fairness, the reasonableness and even the decency of the course I have proposed will be recognised and that the, Lord Advocate will be able to indicate at any rate that the Government will give serious consideration to acceding to this request.

11.28 p.m.

Mr. Nigel Spearing (Newham, South)

I am perhaps unwise to enter into this debate because I feel, like many of us did this morning on our way to the House, in a fog. My vision is necessarily limited. Since I am representing the interests of ordinary citizens, not lawyers, it is perhaps right that I should make a number of points.

First, the motion refers to the House taking note of Commission documents, but I am not quite sure whether these are Commission documents. I do not see the usual Commission frontispiece.

The Lord Advocate

They are Council documents.

Mr. Spearing

I think that we might return to this point before the end of the debate. But I am glad that I have at least cleared that up. Perhaps my remarks about fog are more relevant than I thought.

My right hon. and learned Friend used the word "sight" in his introduction. I am glad that I interrupted him, because it appears that this could be the last opportunity that the House will have to debate this set of documents. For that reason, some hon. Members might not wish to take note of them.

If we are to take note of documents, we should at least be capable of understanding them or of having them expounded in such a way that the ordinary citizen, the reader of Hansard, not only those professionally concerned with international law, understands those matters which will affect him, and clearly these matters will affect him. With respect to my right hon. Friend, I am not sure whether the exposition or, indeed, the documents come into that category.

Secondly, if we are to take note of documents, we should understand their implications. I certainly do not. Clearly, they will be important. At some time, either in British courts or in some cause célèbre, the fact that we adhere to this Convention, if we do, will be pointed to as an obligation. Indeed, the debate may be cited, if this motion goes through, as showing that the House gave its approval for such proceedings to take place in this country. The police, tipstaffs, bailiffs and others may be involved as a result of judgments having to be enforced.

I should have thought that more of our colleagues with legal experience would have been present tonight. I see my hon. and learned Friend the Member for Bradford, West (Mr. Lyons), the right hon. Member for Crosby (Mr. Page), the hon. and learned Member for Southport (Mr. Percival) and the hon. Member for Burton (Mr. Lawrence) in their places. But I should have thought that lawyer Members would have been here en masse to examine this matter, because it will clearly have some effect on their profession and on the proceedings in which they take part.

This Convention is pregnant with problems—at least, I think that it is—and I want to divide what I have to say into two parts: first the practice, and secondly whether some of the results which may stem from it should be promoted by the EEC.

The Explanatory Memorandum points out: Judgments given by a court of a Member State are to be recognised and enforced by the courts of other Member States without further investigation, the grounds for non-recognition being effectively limited to breach of the principles of public policy or natural justice. There may be some loopholes there, and I should not like to say how wide they may be.

My right hon. and learned Friend clearly spelt out matters—Admiralty trusts, insurance and so on—which will be of great commercial importance. I submit that they will also affect people, particularly in matrimonial matters. I take it that the custody of children may come into this matter. If not, perhaps my right hon. and learned Friend will explain in winding up the debate.

Many people come to see me in my surgery. Among the matters that they raise are the maintenance and custody of children and minors domiciled in other EEC States. There is a good deal of emotion in these matters. If there are to be tug-of-love scenes between not only parents but courts, in this country and other EEC countries, where evidential practices and the basis of law are different, we shall be heading for big trouble. This Convention may cover such matters, but I have not been able to discern whether it does from what has been said so far.

Mr. Hugh Dykes (Harrow, East)

The hon. Gentleman referred to people being emotionally involved, tug-of-love scenes, custody of children and so on. Surely the incidence of such disputes arising would be reduced or minimised as the result of the harmonisation of legal terms, procedures and practices in different countries.

Mr. Spearing

That remains to be seen. I suspect that the law will become even more complicated. In practice, harmonisation does not always result. Even within English law, let alone Scottish law, problems arise in this area.

If there is to be an obligation on the courts of this country to apply without further investigation the judgments made by courts in other EEC countries—and even if it may be simpler for lawyers if the law is codified; I am not saying that it will be—I suggest that in human terms we may be in for difficult times. People here may say "We cannot do that. We have to act on the judgment of another court, without any let, hindrance, appeal or argument of that sort."

I can foresee that there will be problems. Perhaps there will be fewer problems than before, but I fear not because of the obligation of application. I do not say that there should not be some international arrangement of this sort: any of us can see that there will be clear advantages in some international arrangements in legal matters. That is common sense—[Interruption.] My hon. Friend doubts that. Perhaps there are good arguments against it. There is a balance of argument on both sides—

Mr. Dennis Skinner (Bolsover)

The point that worries me is that, because we are not expert in these matters, the question whether we accept them becomes a case of our having to follow our instincts. We can be guided only by what has happened in the past and by the circumstances of our entry into the Common Market. When I hear stories about the advantages that will accrue, I have to remember, as my hon. Friends have to remember, what has happened in other circumstances.

Before the 1972 Act, after the Treaty, and many times after the referendum—although the voices of the pro-Marketeers have become a little more muted on these matters—it was said that tremendous advantages would accrue, economically and in many other respects. But we have witnessed a massive increase in the dole queues and, until recently, a massive increase in inflation. We have seen Britain's economy being brought to a standstill, even in respect of steel. In the whole area of our connections with the Common Market I tell my hon. Friends that there is nothing of advantage I cannot find any advantage in this proposal, either.

Unless my hon. Friends can tell me that there is something here that will accrue to our benefit—something specific that they can show me—I cannot give my support to a proposal of this kind.

Mr. Spearing

I entirely follow the argument of my hon. Friend the Member for Bolsover (Mr. Skinner), in the sense that in the past the results of harmonisation and of joining the Common Market have been held out to us as concrete advantages; but the promises made in this respect have proved to be incorrect. My hon. Friend has every right to say what he has said, because we have had similar offerings in the past.

I do not discount the possibility of some international legal arrangements being made, but I suggest that they must be arrived at within a specific structure and under specific auspices, and that if such arrangements are made the House must study them carefully. If there are changes to our statutes, those changes must go through this House, which is the proper body to deal with them. We must study proposed changes in legislation and we must study the Convention, in its future form, in the minutest detail.

These proposals are not of that sort. An entrepreneur, an international agency or a supranational agency is not the same thing as a convention of States coming together for specific legal purposes. We are dealing with the EEC. That makes it into a very different type of arrangement.

We all know that the EEC is a unitary structure, with its own Court of Justice. I do not know whether that court comes into this. Perhaps my right hon. and learned Friend will tell us. I suspect that the EEC court has a place in this arrangement. Since this is an EEC treaty, I take it that the court will decide matters of dispute. This proposal goes far beyond international legal arrangements of which some of us might approve. It is part of the system of the EEC.

The EEC has many objectives, and the laws of the EEC and their enforcement provisions will be of a specific character. Can my right hon. and learned Friend tell us whether there is any specific provision for countries not being members of the EEC to participate in this international treaty? The matter is left open. Norway is not a member of the EEC but it is in Europe and there will be some issues, such as those touching on Admiralty and navigation matters, which will be of concern to it. It would be more appropriate for another international body, perhaps the United Nations, perhaps a convention of maritime countries, to deal with this question of legal co-operation, if it were thought right to have such a body. Yet the EEC is taking this issue under its wing. The EEC has a specific tenor and has specific objectives which are ultimately supranational. The EEC court is supranational in a way in which the other International Court at The Hague is not.

I submit that this is a commercial arrangement which will spill over into the lives of individuals. Until now, the courts of this country have provided protection to its citizens. I am not sure that they would be able to provide this protection if this Convention were accepted. The courts would have to say "We are sorry, but the court in Messina made that judgment and we have to enforce it." As I understand it, that is what will happen, and that is not the case at the moment.

I question whether we should take note of these documents, for two reasons. In the first case, I think that the merits are not clear. Even if they were, the vehicle chosen for this form of international cooperation is not an international body but a supranational body. It is for that reason that some of us would not wish to take note of the documents.

11.42 p.m.

Mr. Graham Page (Crosby)

Before considering the documents before us, I have two protests to make. The first concerns the timing of the debate. It is being held late at night and we have been given only a short time to deal with the subject. I suppose that there are a score of important points of law raised in these documents—the sort of issues on which we would spend days in Committee, discussing and trying to get them right. We are asked to deal with them in one and a half hours after 11 p.m. It is quite impossible to do so with justice. As a result, we must take a broad view on the various points raised.

My second protest concerns the fact that once again in a debate of this sort the House finds itself without a vital document. This is not the first occasion on which this has happened. It seems to be almost a habit. The vital document is the one which has been placed in the Library. To place one copy of a document in the Library is not the same as putting it in the Vote Office, with copies available for all hon. Members. The document should have been included with the others available for the debate in the Vote Office. We do not know, except for what the Lord Advocate has said, what further points are being put forward by the United Kingdom with a view to improving this Convention. That is what we are debating tonight. We are debating what Ministers ought to do, in the proper councils of Europe, to improve these documents as they apply to the United Kingdom.

Having made these protests, I think that this kind of subject is absolutely right for a treaty or convention amongst the States of Europe. This is exactly the sort of subject in which we can benefit from being members of contracting States in Europe. If the other States are going to amend their laws—indeed, if they join this Convention they will do so—as we amend ours, we shall get as much benefit, if not, in some cases, more out of the Convention as the other contracting States will get from our change in our laws. So this is an appropriate subject for some convention, treaty or agreement between the European States.

But then I come to the form that the agreement will take. As I understand it, if it is a convention which is not acknowledged as a treaty, we can discuss it fully in this House before it affects this country through our own substantive law. But if it is to become a treaty—and at some stage we shall designate it as such under Community law—everything in that treaty which alters our law automatically takes effect without any further legislation in this country.

I want the Minister to give an undertaking that this convention will not be designated as a treaty and thereby bind us without any further legislation in this country. That is the position. We have seen it recently in the result of a designated treaty, and we have argued it out on the Floor of the House. We are forbidden, indeed, by our Treaty with the Community to try to put a treaty into our law. We are bound by the wording in that Treaty, and we cannot repeat it in our law.

If this Convention is to be treated in that way it will be very serious, because we shall not have an opportunity of discussing its terms fully. I hope that this one will come before us again as a full draft Convention, so that we can discuss it in some form in detail before it becomes a substantive part of our law, either by treaty or by rules of court, or will be put before us by the Government in the form of a Bill.

On the merits of the proposals, my view is that the change in the basis of jurisdiction of the courts will be very valuable. Physical presence has never really been a satisfactory basis for jurisdiction. Domicile is far better. If one relies on physical presence, the proceedings may be frustrated by the disappearance of the defendant after he has been served. He is much less likely to leave this country permanently if he is domiciled here.

But if that applies in the other contracting States, and if a person domiciled in this country is physically present in another contracting State, we must provide in this Convention that the service of the proceedings on him in that other contracting State is facilitated. If he is to be brought before the courts here—and under the Convention he should be brought before the courts in the State in which he happens to be at the moment—the service of the proceedings by those courts here must be simplified somehow.

I see a little difficulty here in that "domicile" is to be left for the definition of the contracting States. Indeed, we are told in the memorandum from the Lord Chancellor that this country will be able itself to define what is meant by "domicile". If we are to have a different definition of "domicile" in all the contracting States, I can foresee considerable difficulties. Indeed, this is where I and some of my hon. Friends will have to declare an interest in that litigation will multiply, and, being a solicitor, I am sure that I shall make a lot of money out of it. I hope that that will not be the case. I hope that the definition of "domicile" will be the same in all the contracting States.

I turn to the other points which are cleary set out in paragraph 7 of the memorandum. The special jurisdictions set out in Articles 5 to 16 of the 1968 Convention are clearly right. There are some which should perhaps be added. This, again, is where we might have been assisted by having been able to study the document laid in the Library. But one cannot go into such details in a debate of this sort. I only say in general that the special jurisdictions which we have seen set out in the documents before us seem to be correct.

I am a little worried about the fact that jurisdiction cannot be fixed by agreement between the parties. The Lord Advocate mentioned the demands internationally for the services of our courts. In fact, litigants who by domicile, physical presence or the performance of the contract have no real claim to come to our courts nevertheless do so. I do not see why we should prevent that. We should be able to have a form of agree- ment whereby litigation can be brought before our courts here.

The same applies to the point mentioned in paragraph 7(d) of the memorandum—the discretion of the courts to assume jurisdiction. I would regret it if that were abolished.

However, one can deal with this subject only with a broad brush. On the whole, we must recognise that this is one of the cases—for me there are many others—where by agreement between the contracting States we ourselves can gain great benefit out of this harmonisation. I believe that we shall get just as much if not more, benefit out of the other contracting States bringing themselves in line with what we shall suggest even though we shall have to alter our law to harmonise with theirs.

11.53 p.m.

Mr. Hugh Dykes (Harrow, East)

I join briefly in this debate not because of any particular legal knowledge or expertise on this subject but to add a few words which, I hope, will not be too general and will fit appropriately into the debate.

I also join enthusiastically with my right hon. Friend the Member for Crosby (Mr. Page), who referred to the frustrations that are caused by this kind of debate in that a maximum of an hour and a half is given late at night to a subject which is extremely important. The fact that it is heavy with legal consequences makes it a natural deterrent to most hon. Members. However, it is an important subject which should be dealt with in a much less cavalier way by the Government.

Our trying to indulge seriously in genuine and legitimate scrutiny of important EEC documents is in stark contrast to the aggressive political attitude of the Government in respect of different portfolios and different negotiations and subjects in Brussels, where they continually say that they are the only guardians of British interests and the only sturdy upholders of the national interest. That attitude is in stark contradiction with the fact—which is worth repeating—that the Government have on so many occasions refused to show more courtesy to the House by providing time and more suitable opportunities for the effective scrutiny of documents of this kind.

My personal view is that this kind of complicated document, particularly when it is of a legal and esoteric nature, is very difficult for hon. Members to absorb in the limited time available. I believe that such documents should be dealt with on more than one occasion, beginning on the Floor of the House, going upstairs to the Statutory Instruments Committee and then returning to the Floor of the House for a final debate.

The Lord Advocate arrived here rather breathless, and he did not seem to be all that familiar with the material in his very well written brief. If I am wrong on that point, I shall withdraw it immediately. Surely he would feel that it would be better to have a more thorough discussion of the weighty matters in these documents.

I concur with what has been said earlier in this debate. Since this is a preliminary draft, much more must happen. The suggestion of the right hon. Member for Down, South (Mr. Powell) about two bites at the cherry should be taken on board by the Government.

I assume that there is no chance of our being ready to sign the Accession Convention by the original due date and that the next stage will be our normal procedure for the ratification of treaties. Interposed in that may be an intervening stage which might be an opportunity for the Government to tidy up these documents between English and Scottish law.

I hope that that does not mean a delay in the prosecution of the documents or in accession to the Convention. The fears and anxieties expressed by the hon. Member for Newham, South (Mr. Spearing) should be allayed. These documents are not as far-reaching as he thinks. They are much more marginal, and they arise in logical terms from the Treaty of Accession and Sections 1 and 2 of the European Communities Act.

The House of Lords, in its 45th Report at the end of July last year, gave a very good report, suitable for both Houses, on the need for these Conventions and the legal principle of effectiveness. In those terms the House can proceed, after proper discussion which we have not had tonight, to approve these documents.

It is a pity that even the terminology is wrong on this occasion. These are not conventional Commission documents as we know them. They may be remote to most people, rather obscure and not of much importance. But the absence of the documents, to which the right hon. Member for Down, South referred, is disturbing to most hon. Members. Perhaps the Lord Advocate could answer that point.

This has been an object lesson. On future occasion when convention accession or treaty accession documents come before the House, a much clearer procedure should be used by the Government in order to help the House to deal with these matters more sensibly and expeditiously.

Mr. Spearing

On a point of order, Mr. Deputy Speaker. It is well known that these matters are dealt with under Standing Order No. 3 dealing with exempted business. That Standing Order, in lines 45 to 55, clearly states: 'Commission documents' means draft proposals by the European Economic Community for secondary legislation and other documents published by the Commission for submission to the Council of Ministers". It will be within the recollection of the House that in my speech I elicited that these documents are not Commission documents, and when the motion refers to "Commission documents" it is inaccurate. Therefore, I submit that both the motion and this debate are out of order.

Mr. Deputy Speaker (Mr. Bryant Godman Irvine)

Does the Lord Advocate agree with that?

The Lord Advocate

Further to that point of order, Mr. Deputy Speaker. I must concede that these documents are in no sense Commission documents.

Mr. Deputy Speaker

Since it appears that the documents before the House are not Commission documents within the meaning of Standing Order No. 3, I must withdraw the motion from the consideration of the House.

Mr. Graham Page

On the point of order, Mr. Deputy Speaker. I wish to be clear about the bombshell which has been sprung upon the House. We were all waiting for the wise words of my hon. and learned Friend the Member for Southport (Mr. Percival) and for the Minister's reply. Are we not now to receive those comments?

If that is so, may we have some statement from the Lord Advocate? He has thrown the bomb at us, so to speak, by saying that these documents are not what they were said to be on the Order Paper. When are we to debate these matters? Indeed, shall we have a chance to debate them at all? We do not want the documents to move to the next stage without the House having a chance to debate them and having the opportunity to be given a ministerial reply to the points which have been raised in the debate.

Mr. Dykes

Further to that point of order, Mr. Deputy Speaker. If I heard correctly, the Lord Advocate said that the documents concerned were not Commission documents. Since there has been nothing said about the veracity of the matter, could we not continue for the concluding period?

The Solicitor-General

Further to that point of order, Mr. Deputy Speaker. I was to reply to the debate, and I assure the right hon. Member for Crosby (Mr. Page) that I was bursting to do so. However, if you rule that I have no right to reply because the matter is out of order, that will be the end of the matter. The unhappy consequence will be that the House will be deprived of an opportunity to discuss something that is to take place on 24th January.

Mr. Deputy Speaker

As it is clear that this is not a matter covered by the Standing Orders, I have no power to allow the debate to continue. What the Lord President does about the matter afterwards is not for me.

Mr. Graham Page

Further to the point of order, Mr. Deputy Speaker. The motion having been not exactly withdrawn but sabotaged, torpedoed and sunk by the Lord Advocate, surely he should explain what he intends to do. It seems to me that this debate must be finished or set down for discussion at a proper time. If it is not to be dealt with at this late hour, it must be dealt with at a more normal time in our proceedings I seek an undertaking from the Treasury Bench that we shall be given Government time to complete the debate.

Mr. Percival

Further to the point of order, Mr. Deputy Speaker. May I echo the words of the Solicitor-General? He said how anxious he was to reply. I was waiting to get up to give him some more material to reply to.

One again, we face the unhappy prospect that we are now losing one-third even of the limited time that we are given to discuss Community documents. I hope we may have an assurance from the Government on this matter. I am sure that the Ministers who are present share our views on the seriousness of the matter that was under discussion. The matter must be discussed; there are no two ways about it. Obviously, because of the procedure of the House we cannot discuss the matter now but, although we understand the Minister's difficulties, we are determined to press for an assurance that time will be given to debate it. We hope that Ministers will do their utmost to ensure that time is given to complete the debate before any further step is taken in the Community itself.

The Lord Advocate

I apologise to the House for the situation in which we find ourselves. The Committee on European Legislation recommended this procedure, but I must take responsibility, on behalf of the Government, for the procedure having gone wrong. Obviously I cannot give an undertaking about further time, but I have taken careful note of all the points that have been made and I shall certainly pass them on to the appropriate quarter.

It appearing from the debate that the documents referred to in the motion were not Commission documents within the meaning of Standing Order No. 3 (Exempted business), Mr. DEPUTY SPEAKER withdrew the motion from the consideration of the House.