§ Order for Second Reading read.
§ 4.2 pm
§ The Solicitor-General (Sir Ian Percival)
I beg to move, That the Bill be now read a Second time.
I do not think that I can offer any better introduction to what is to follow than the words with which my noble and learned Friend the Lord Chancellor embarked upon the same task in another place. He said:I rise to move that this Bill be now read a Second time. I rather feel that it should be accompanied by a Government health warning. There is nothing whatever that I can do to make my speech short, and those who expect to find it of throbbing human interest will, I fear, be wholly disappointed. The road lies uphill all the way."—[Official Report. House of Lords, 3 December 1981; Vol. 425, c. 1126.]The Bill deals with two aspects of civil court procedure. It is concerned only with civil courts; it has nothing to do with the criminal law. It regulates the jurisdiction of the courts and how their judgments may be enforced. It is mainly concerned with the international aspects of those two matters.
If an Englishman driving in France is involved in a collision giving rise to a claim for damages, the question arises whether the proceedings should be taken in the French or the English courts. In either case, how can the judgment of the French or English court be enforced in the other country? That is the sort of question that we are concerned with. I wish it were as simple as that.
The present law on these matters in the United Kingdom is very complicated. There are separate rules; for England, Scotland and Northern Ireland. There are differences in the rules according to where the defendant in the case is resident or where the judgment is given. There are some arrangements with other countries, but they are incomplete.
Until recently, our European friends were in much the same boat. However, a far-sighted initiative by the original six member States of the European Community led to the conclusion, in 1968, of a convention between them on these subjects. It does not cover every aspect of the matter, but it unifies their rules of jurisdiction and the enforcement of judgments over a wide range of proceedings. When we joined the Community in 1973 that convention had already been negotiated and agreed. We undertook to accede to the convention subject to the necessary adjustments. Substantial adjustments have been made at our request and due to the untiring efforts of those who, on our behalf, have negotiated those adjustments with our European companions—not least, the working party which has assisted with many of the technical aspects.
Those adjustments were made in a further convention which was signed in October 1978. Hon. and right hon. Members will recall that a draft of that convention, prior to the signing of the convention, was presented to the House and debated on 18 January and 27 February of that year.
The Bill will give the force of law to the 1968 convention as amended. The rules set out in that 943 convention will replace our existing law in the matters to which they apply. The Bill goes further than that, because the opportunity has been taken to rationalise our rules in matters to which the convention does not apply, partly to remove any unwarranted differences and partly to introduce some overdue improvements to our law.
In order to describe how the Bill's provisions relate to each other, I need to say a little more about the present position. As I have said, there are differences between the rules operating in Scotland, England and Wales and Northern Ireland. My hon. and learned Friend the Solicitor-General for Scotland will describe the Scottish position when he replies. The rules in Northern Ireland are similar to those in England. Therefore, I shall deal only with the latter.
The English rule about jurisdiction is essentially that one may bring proceedings against a person in England by serving him here with a writ or other document to begin the proceedings. If the defendant is out of England—whether he is in Scotland or Northern Ireland, or in a foreign country—the leave of the court is necessary to serve him and that leave can only be given on one of a number of grounds. Those depend on how closely the dispute is connected with England. For instance, if the traffic accident that I mentioned at the outset had occurred in England, the court could have given leave to serve the Frenchman on the ground that the act complained of had been committed here. So much for the ground rules as to jurisdiction.
The general position about foreign judgments is that they can be enforced in England in the same way as our own judgments, provided that they satisfy certain conditions. The main condition is that the original court assumed jurisdiction over the defendant in circumstances in which we consider it right and proper that it should do so.
So far as contracting States are concerned—our partners in Europe—if the Bill becomes law that position will be overtaken by the provisions of the 1968 convention as amended by the further convention. For convenience, the provisions of the amended 1968 convention are set out in full in schedule 1 to the Bill.
The rules on jurisdiction and enforcement are set out in titles II and III respectively. Title II provides uniform rules governing jurisdiction over proceedings brought in the courts of any of the contracting States against defendants domiciled in one of them. The general rule set out in article 2 is that the defendant must be sued in the State in which he is domiciled. I shall refer later to what is meant by "domiciled". However, the term "domiciled" is here intended to mean something like what we would call "ordinary residence". It is to be determined in accordance with national law and clauses 40 to 44 supply a definition for the United Kingdom.
However, the defendant may also be sued in another State on one of a number of specified grounds, depending on the connection of the dispute with that State. Many of these grounds are the same as those on which our courts will now give leave to serve abroad, but there are some that are not, such as the special rules dealing with insurance and consumer contracts. Those rules governing jurisdiction will replace the existing law of the member States in proceedings to which they apply.
944 One practical consequence will be that in some cases people in this country may not be sued in other member States where they could now be sued on grounds of jurisdiction that might be felt by some to be excessively wide. For example, article 14 of the French civil code allows a French national to bring proceedings in France against a foreigner, even in respect of a dispute that has no connection with France.
§ Mr. Tony Marlow (Northampton, North)
I apologise for intervening. I have glanced at the Bill and I am sure that my hon. and learned Friend the Solicitor-General will sympathise with me, because not being a lawyer I found it difficult to follow and understand. I am a little concerned that the Bill might have deep and long-term implications for the United Kingdom. May I ask my hon. and learned Friend three questions?
First, if a British citizen had a traffic accident in France before and after the Bill becomes law, is there any more likelihood that he could be pursued in this country? Would he be more likely to be taken to court, or to be found and to have to pay moneys? Secondly, is there any way in which a case that involves purely British people in Britain and that concerns British property, British aspects, the British way of life or British conditions, will be affected by the new Bill? Finally, is there any way in which the British courts, dealing with British business, will come under some European court in a way in which they do not at present?
§ The Solicitor-General
I can agree with my hon. Friend on one point. He said that he hoped that I would accept that these matters were complicated to him as a layman. However, they are extremely complicated to me as a lawyer. Indeed, in the other place it was said that they gave a new dimension to the word "complexity". However, curiously enough their objective is to simplify and that will be their effect. In most of the common cases the rules will be easy to apply.
I shall try to answer my hon. Friend's three questions. However, I shall take the first opportunity available to see the questions and answers in writing and to see whether the answers are right. If they are not, I shall get in touch with my hon. Friend. I think that the answer to all three questions is "No". In asking each of those question my hon. Friend is clearly worried whether the persons referred to will be detrimentally affected by any of the provisions. I think that I can fairly say that they will not be. There will be cases in which the position of persons—all of whom are resident in this country—will be affected by the Bill. Some provisions apply to proceedings entirely in this country. However, all the provisions are intended to be helpful and I am satisfied that they are. Therefore, I hope that my hon. Friend will allow me, for the moment, to leave the matter there. I shall certainly carry out the undertaking that I have given.
§ Mr. Jeffrey Thomas (Abertillery)
The Solicitor-General has said that the Bill's objective is to simplify matters. With respect, many of us might not wholly agree with that view. Some of us believe that it will not simplify the question of domicile. One of the clauses deals with an entirely new concept in the law of domicile and mentions a three-month period in Community countries.
§ The Solicitor-General
The hon. and learned Gentleman will recall that I said that the Bill's objective 945 was to simplify. I did not say—or I hope that I did not say—that that objective had been achieved in all respects. As a lawyer, the hon. and learned Gentleman will know that one can get into some complex problems when trying to cover—as we are—every possible situation. However, generally it will become much easier to answer some of the questions that arise. I said—I think before the hon. and learned Gentleman came into the Chamber—that I proposed to say something more about domicile later.
I pointed out that article 14 of the French civil code allows a French national to bring proceedings in France against a foreigner—including us—even in respect of a dispute that has no connection with France. Some might feel that that is rather hard on foreigners. I sought to point out that we—and all other foreigners—would no longer be subject to such difficulty. That is an advantage. Conversely, a person domiciled in another member State may not be sued here simply on the ground that the writ was served on him while he was temporarily present in this country.
It should be noted that those provisions apply only when the defendant is domiciled in the Community. I hope that right hon. and hon. and learned Members will accept the word "domiciled" every time that I say it, subject to my later remarks about it. It is not the same concept as that used in, for example, matrimonial proceedings. If a person is domiciled elsewhere, the convention—I refer hon. Members to article 4—leaves the jurisdiction of the courts to be determined by national law. As a result, in proceedings in England against a defendant domiciled in New York, the present law will continue to apply and the plaintiff will have to obtain leave to serve, just as he does now.
Title III of the convention deals with the enforcement in one contracting State of a judgment given by a court of another contracting State. The procedures that it lays down are very detailed. They are intended, as far as possible, to reduce the objections that may be raised by the judgment debtor, so that once a judgment creditor has obtained a judgment he may not be thwarted, at too many turns, in the execution of it. Hon. Members will agree that that is a desirable objective. There must always be provisions enabling a debtor—where circumstances require it—to obtain time. However, we must ensure that the balance is maintained by establishing that there are not too many obstacles in the way of the judgment creditor. That applies both to domestic and overseas judgments. That is the objective of these provisions.
The court to which application for enforcement is made may not question whether the original court took jurisdiction on a proper basis. This contrasts with our present law and is made possible by the fact that jurisdiction of the original court is itself regulated by the convention which now becomes part of our law.
§ Sir Charles Fletcher-Cooke (Darwen)
It is a question of the enforcement of a judgment that has in fact been obtained by breach of a contractual agreement. As my hon. and learned Friend knows, it is still possible, by agreement in a contract, to confer jurisdiction upon a certain State. Parties to a contract can say that they wish their contract to be governed by English law and to be enforced in the courts of England, even though they are of different nationalities. That confers jurisdiction, but it does not confer it exclusively, as I understand article 17 of section 6 in schedule 4. Thus, if, for example, an 946 Italian—without disrespect to Italy—breaks this undertaking and obtains a judgment from an Italian court, as I understand it he can enforce that judgment in an English court although it was obtained by a breach of a fundamental contract that he would sue only in England. Surely there is a lacuna here. Such a breach of contract should be a ground for not registering, or at any rate not enforcing, a foreign judgment.
§ The Solicitor-General
My hon. and learned Friend raises an important question. As I said in reply to an earlier question, I shall check both the question and the answer.
There are two sets of provisions in the Bill relating to the situation to which he referred. Article 17 in section 6 of schedule 1, on page 43, reads:If the parties, one or more of whom is domiciled in a Contracting State, have agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship"—that is the situation with which my hon. and learned Friend is concerned—that court or those courts shall have exclusive jurisdiction.
§ Mr. Peter Archer (Warley, West)
At the risk of interrupting the Solicitor-General's train of thought, may I ask whether he has also observed the last sentence of that paragraph?
§ The Solicitor-General
Yes. The last sentence reads:If an agreement conferring jurisdiction was concluded for the benefit of only one of the parties"—
§ Mr. Peter Archer
I meant the last sentence of the first paragraph which beginsWhere such an agreement is concluded by parties, none of whom".
§ The Solicitor-General
If I were in an American court I would ask for my last observation to be struck from the record. The last sentence in the first paragraph of article 17 reads:Where such an agreement is concluded by parties, none of whom is domiciled in a Contracting State, the courts of other Contracting States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction.
The other provision to which I draw attention, dealing with a similar matter, is article 17 in section 6 of schedule 4. I notice that the word "exclusive" does not appear. I believe, and hope, that the first part of my observations is a satisfactory answer to the first part of my hon. and learned Friend's question. Perhaps we can look at the second part together. I was saying that the new provisions on the enforcement of a foreign judgment will produce the result that the court to which application for enforcement is made may not question whether the original court took jurisdiction on a proper basis. I pointed out that this contrasts with our present law and is made possible because the jurisdiction of the original court is itself regulated by the convention. The provisions of the convention are in many cases drafted in general language, which leaves some room for interpretation. The Bill contains special provisions on that subject.
The 1971 protocol to the convention allows national courts to seek a ruling on the interpretation of the convention from the European Court. The court has already given a number of rulings of interest. For example, in one case the plaintiff was a Dutch company which operated a nursery garden, making use of the surface waters of the Rhine for irrigation. The company took 947 proceedings in the Dutch courts against a French mining company which it said was polluting the Rhine by discharges of waste in Alsace. The question was whether the Dutch courts had jurisdiction because the consequences of the defendants' acts were felt in Holland. It was held that they had jurisdiction. Such questions do not often arise, but I suggest that it is useful to have the machinery for resolving them when they do.
Clause 3(1) provides that if the provisions to which I have just referred are not made use of, and the case is not referred to the European Court, it shallbe determined in accordance with the principles laid down by and any relevant decision of the European Court.I also draw attention to clause 3(3). The House will know that it is unusual in our law, to say the least, to find that documents other than those which do not form part of a statute can be looked at in connection with its interpretation. The House may wish to discuss these provisions on some other occasion. I merely make the point that they are unusual.
So far I have drawn attention only to the provisions of titles II and HI of the convention. I can deal briefly with part I of the Bill. Clause 2 gives the conventions the force of law so that they may be relied upon like any other statutory provision. The remaining clauses contain supplementary provisions tying up a number of loose ends. For example, the convention does not deal with the interest to be carried on judgments enforced under the convention. Clause 7 makes provision for that purpose.
Part II requires a little more explanation. The 1968 convention deals mainly with the relationships between the contracting States. Thus the main rule of jurisdiction—article 2—merely says that persons domiciled in a contracting State shall be sued in the courts of that State. It does not say in which particular courts of that State they shall be sued. Therefore, in the case of the United Kingdom it does not determine whether a person domiciled in this country should be sued in England and Wales, Scotland or Northern Ireland. We could simply leave this matter to be covered by our existing law, but the result would be that to bring proceedings in the English court against someone domiciled in Scotland one would have to obtain leave under our present law. However, to sue somebody domiciled in France one must invoke one of the special grounds of jurisdiction in the convention.
Not only would that greatly complicate the law but it could lead to unjustifiable differences in the conditions under which the two defendants could be sued. Thus one might be able to sue a Scotsman by serving him at Heathrow but not a Frenchman. We believe that, in principle, the rules governing jurisdiction should be the same. So clause 16 introduces schedule 4, which applies the convention rules as among the three parts of the United Kingdom.
However, certain exceptions have been made to the principle because of the differences in the position within the United Kingdom. Subsection (2) of clause 16 contains some exclusions. For example, an exclusion for patents is necessary because the rule in article 16(4) of the convention, if applied, would require all proceedings attacking the validity of a patent to be brought in England whereas at present they can be brought in Scotland or in Northern Ireland. Secondly, the heavy type and dots in schedule 4 indicate some qualifications. For instance, 948 section 3 of title II is omitted. That creates a special regime of jurisdiction for insurance contracts which is too complicated to be operated satisfactorily in the United Kingdom.
Clause 17 brings up to date existing provisions for the enforcement in one part of the United Kingdom of judgments given in another. The convention applies only to enforcement between the contracting States. The most significant innovation is perhaps that clause 17 provides, as does title III of the convention, for the enforcement of non-money judgments, such as injunctions, as well as money judgments.
Part III of the Bill deals mainly with jurisdiction in Scotland. It affects matters that are not regulated by the 1968 convention or by part II. My hon. and learned Friend the Solicitor-General for Scotland will be describing the background to those proposals. Broadly, the Scottish rules of jurisdiction are so close, both in substance and in formulation, to the convention rules that it would be inconvenient to have the two sets of rules running side by side. Thus, while in England proceedings against a defendant domiciled outside the Community will continue to be governed by the present law, in Scotland such proceedings will be governed by the new rules of jurisdiction set out in schedule 7. Again, certain differences from the convention rules have been built into schedule 7.
I turn now to part IV, which right hon. and hon. Members will be glad to know is well on in the Bill. It contains miscellaneous provisions both on jurisdiction and enforcement of judgments. Some relate to the convention or part II alone and some go to the general law. I shall select a few that have created interest. Clauses 24 to 26 permit the grant of interim relief in cases where the jurisdiction to hear the substantive proceedings lies with the courts of another country. The exercise of such a jurisdiction is foreseen by article 24 of the convention. Right hon. and hon. Members may believe that this is a useful and important addition to our law, because it will permit an English court to grant an injunction to prevent the removal or disposal of assets in this country which may be used to satisfy the eventual judgment of the court in which the proceedings are being brought. If an English plaintiff brings proceedings in a French court, he may apply in our courts for an order to preserve any assets in this country that he may subsequently wish to use in order to satisfy the judgment that he obtains abroad.
The power conferred by those provisions was extended in another place to cover cases where the proceedings in the foreign court have not yet begun. That is also a practical addition, because if one is to have a real chance of preserving assets one must be able to move quickly, unhindered by technical delaying obstacles.
Clause 30 was also amended in another place. It provides for the recognition and enforcement of foreign judgments given against States in cases where the foreign court applied rules of immunity not less favourable to the defendant State than those laid down in the State Immunity Act 1978. That Act did not deal with this question and the resulting legal position was unclear.
Clause 31 extends a provision in our present law which prevents the enforcement of a foreign judgment in circumstances where there was a valid agreement to settle the dispute by arbitration or other means and the foreign proceedings were brought in disregard of that agreement. That counteracts the effect of laws in some countries 949 which allow their courts to go behind such agreements and so is of considerable importance to commercial concerns that choose to go to arbitration.
Clause 33 reverses the ruling of the Court of Appeal in a case known as Henry v. Geoprosco, concerning cases in which a foreign judgment will be recognised on the ground that the defendant took part in the foreign proceedings. I understand that my noble and learned Friend the Lord Chancellor is considering whether the scope of that clause should be extended to cover additional cases where a party applies for a stay of proceedings. We may bring forward an amendment on that in Committee.
Part V contains other supplementary and general provisions and clauses 40 to 42 define the domicile of individuals, corporations and associations. An individual is domiciled in the United Kingdom, and so may be sued here, if he is resident in and has a substantial connection with this country. Three months residence is presumed to amount to a substantial connection, which should result in a test similar to ordinary or habitual residence as we now know it.
Clause 41 provides two alternative tests for determining whether a corporation or association is domiciled in the United Kingdom. The first test is whether it was incorporated or formed and has its registered office here. That will ensure that almost all of our existing jurisdiction over companies can be continued. Clause 42 provides a slightly wider test for the provisions dealing with the winding up of companies and related matters.
As the question of what we mean by domicile in this context is such an important element, and as I know from previous debates the interest taken by right hon. and hon. Members on this aspect, I wish to say a little more about it. The law of domicile is a difficult area, and not only in Britain. In a previous debate I referred to a lecture that I attended at Columbia university about the ways in which a taxpayer might try to change his domicile to a State which exacted smaller taxes on death, and which contained arguments put forward by a State that imposed high taxes for establishing on a person's death that he was domiciled in that state. The title of the lecture was "Death and taxes are certain, but what of domicile?". Most nations have found this area difficult.
However, we are not dealing with domicile in the general sense that we use it in other connections in our law. I cannot do better than repeat what was said by my noble and learned Friend the Lord Chancellor in another place:So I conclude with some brief exposition of the specialised meaning to be attached to this expression 'domicile' for the purposes of this Bill. It is direct borrowing from the French expression 'domicile'. In French it has a weaker meaning than it has hitherto been thought to have here. In English law, domicile has hitherto meant residence in a country combined with an intention to reside there permanently, or at least indefinitely.It will continue to have that meaning for all purposes except purposes arising out of this Bill.In continental countries it means something more like what we should regard as ordinary residence; that is, residence which is not purely temporary or fleeting. The convention does not itself define the concept, but leaves it to national law, subject to some rules as to which national law is to be applied. But this was done on the basis that in all the original Six the expression meant more or less the same thing.Therefore, for us the continental meaning is adopted expressly for the purpose of the Bill.I repeat, only for the purposes of this Bill. My noble and learned Friend continued: 950It would in fact be contrary to our interests as well as our obligations under the convention to adopt any other course, because it would mean that many defendants ordinarily resident here could not be sued here. For many people ordinarily resident in the United Kingdom do not have a British domicile of origin or the requisite intention to make the United Kingdom their permanent home so as to give them a United Kingdom domicile of choice."—[Official Report, House of Lords, 3 December 1981; Vol. 425, c. 1134.]But those, I repeat, will remain the tests for establishing domicile for all other purposes.
To summarise, the main object of the Bill—
§ Mr. J. Enoch Powell (Down, South)
The hon. and learned Gentleman is approaching the moment which those listening to him have been dreading—that of resuming his seat. I wonder whether I could ask him to clarify one point, and that is whether the operation and the convenience of this Bill would be affected in any way if the United Kingdom ceased to be a member the European Community. In other words, to what extent, if at all, are its operation and its utility affected by the fact at any moment of our membership of the Community?
§ The Solicitor-General
Clearly in that event the wording of the Bill might need some revision, because of the terminology used in it and because of the references to contracting States, the convention and the like. But there is no reason of substance of which I can think why we should not enter into the same agreement with those other countries whether or not we are members of the Community.
I am not pretending to the House that the convention introduces a wholly clearcut, simple system covering every eventuality; I do not believe that is possible. But I believe that it is an improvement on the present situation, and I think that there are advantages that we would wish to continue even in the eventuality to which the right hon. Gentleman refers.
I come to that dreaded moment when I am about to resume my seat. Before I do so, let me conclude what I had started to say.
To summarise, the main object of the Bill is to enable the United Kingdom to ratify the 1968 convention. It also makes corresponsing provision for jurisdiction and the recognition and enforcement of judgements within the United Kingdom; and the opportunity has been taken to rationalise some provisions of our law on these matters more generally. The Bill will introduce a much needed element of certainty into this area and strengthen the machinery available for redressing civil wrongs. It is a technical Bill which is likely to be read only by legal practitioners. I believe that it is, none the less, a useful measure of law reform, and I commend it to the House.
§ Mr. Peter Archer (Warley, West)
The House will be grateful to the Solicitor-General for the way in which he approached the formidable task of explaining the Bill. I agree with him at the outset that it has very little sex appeal. But it is not a controversial Bill. Indeed, the complaint from this side of the House would have been if the Government had delayed in bringing it forward. I should like to list three reasons why I believe that the Bill should be supported.
First, it implements obligations that the United Kingdom has undertaken under international law. Those obligations were negotiated for the greater part by a 951 Government of which I was privileged to be a member, and negotiated in accordance with views expressed from both sides of the House. I should like to add my congratulations to those of the Solicitor-General to those who conducted the negotiations.
It is true, of course, that the United Kingdom negotiated the convention of 1978 in consequence of our accession to the European Economic Community, and that may not endear it to some of my hon. Friends or, apparently, to some Conservative Members. Certainly if the United Kingdom subsequently seeks to negotiate about its future in relation to the EEC, this will be one of the conventions which will fall to be considered, as the Solicitor-General said in answer to the right hon. Member for Down, South (Mr. Powell). But, like the Solicitor-General, I hope it will be felt that, irrespective of any other obligations that the United Kingdom may or may not have, this convention is capable of standing independently and brings clear benefits on its own account. I hope that it may lead to conventions that will apply to wider groups of States.
Secondly, the Bill seeks to deal with those petty chauvinistic jealousies which, in the past, have led to conflicts of jurisdiction and, even worse, to the inability to enforce in one country a judgement given in another jurisdiction. In a world which claims to be civilised, it ought not to be open to anyone to evade obligations which the courts have found he owes by slinking off to another country. The world is learning in many ways that law and order are indivisible. If a terrorist can commit an offence in one jurisdiction and find a hiding place in another or if a hijacker can bring an aircraft which he has stolen and the passengers whose lives he has endangered to another jurisdiction and find sanctuary, everyone is at risk—and next time it may be the nationals of the State which this time is providing the sanctuary. This Bill provides a less dramatic example of that principle, but it is still a real example of the need to make law enforcement a subject of international co-operaton.
Thirdly, I believe that it is better for litigants to be clear which court has jurisdiction than to have a bazaar of national courts competing for jurisdiction, holding a Dutch auction to attract plaintiffs, as the variety of courts in this country did before 1883.
I hope that the principle of the Bill is not in dispute. It does not follow that there may not be some questions which we shall seek to raise at the appropriate time, but I want on Second Reading to ask two questions of the Solicitor-General for Scotland who, I believe, is to reply to the debate.
When the matter was debated in another place, my noble Friend Lord Mishcon called attention to the debate, which the Solicitor-General mentioned a few moments ago, which was held in this House on 27 February 1978 and in which, as the Solicitor-General pointed out, his position and mine were transposed. The House was then considering the terms which we were hoping to see negotiated in the convention on which this country would accede to the parent convention of 1968, and I believe that the terms about which hon. Members expressed anxiety were indeed successfully negotiated. But, in the course of that debate, attention was called to the fact that jurisdiction was largely to be based on domicile, as indeed in the Bill 952 it is—not exclusively, but largely. My recollection is that the hon. and learned Member for Darwen (Sir C. Fletcher-Cooke) first called attention to that matter.
I mentioned that the definition of domicile was left by the draft convention to the domestic law of each State. That was still the position in the convention as it ultimately emerged. The Bill in turn defines the word, for the purposes of the Bill, in clause 40 but contains the wordsfor the purposes of the 1968 convention and this Act".I recall saying in that debate—I think largely in answer to the hon. and learned Member for Darwen—that one consequence might be that there was a case for legislating as to the whole basis of the English law of domicile. I said: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.The present Solicitor-General asked: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 that 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 should do about it, or, indeed, doing the prepliminary work, rather than waiting until it goes through and then doing it?"—[Official Report, 27 February 1978; Vol. 945, c. 198.]I replied that some preliminary work on the subject was already being done. I cannot recall on what information I based that statement, but the Soloicitor-General and the Solicitor-General for Scotland may know better than I what information was then available to me. So I should like to ask them what I meant. More important, perhaps they can tell us what work has subsequently been done, what work is now being done on the subject, and whether the Government now propose to do what both the Solicitor-General and I were then inclined to think should be done. It may be concluded in due course that it is better to leave the word with more than one definition, as the Lord Chancellor indicated in another place. Perhaps the House was not surprised when the Solicitor-General agreed with the Lord Chancellor. But may we at least have the benefit of such investigations as have taken place? May we know in rather more detail what the reasoning was, or is?
The second matter that was raised in that debate so long ago was the availability of legal aid. The whole purpose of the convention is to preclude plaintiffs from shopping around different jurisdictions. It restricts their right to select the jurisdiction. That is the very purpose of what we are talking about. That would be acceptable, particularly where satisfactory arrangements are made for mutual enforcement, but only if those who are not to finance their own actions have access to legal aid in the jurisdiction where they must now seek redress. So we probably need wider international agreement about legal aid than we now have.
Some countries offer legal aid to their nationals wherever they may be litigating. Other countries make legal aid available for litigants before their own courts, whether the litigants are nationals or not. The United Kingdom adopts the second practice. That may create hardship for individuals in this country who are involved in litigation abroad.
Clause 39 gives the Lord Chancellor and the Secretaries of State for Scotland and Northern Ireland power to extend 953 the existing legal aid regulations for two purposes—to fulfil any international obligations undertaken by the United Kingdom and to enforce judgments. But is there not a case for looking at the whole problem related to any purpose connected with seeking redress?
I should like to give an example. I have a constituent whose husband was killed in the kind of road accident which the Solicitor-General postulated. The accident occurred in France, and my constituent wishes to bring proceedings against a French defendent in France. She is entitled to do that now and would still be entitled to do it if the Bill were on the statute book. But there is no provision for providing legal aid in this country for one of our nationals to bring proceedings in France. So my constituent is having to pay a lawyer in France to make an application for legal aid there. Fortunately, I understand that legal aid is available in France, even for non-nationals who litigate in the French courts. But that entails initial expenditure, which my constituent may not be in a position to provide. Moreover, one would have thought that the best place to apply for legal aid was in one's own locality, where one can attend before the appropriate committee or authority and where one can seek advice. What are the Government doing about the matter? Have they any thoughts on the subject?
The Solicitor-General for Scotland will be aware that certain provisions of the Bill occasion anxiety to the Law Society of Scotland. That matter was drawn to my attention by my right hon. Friend the Member for Lanarkshire, North (Mr. Smith). There are two reasons why I do not propose to delay the House by mentioning those anxieties. First, they are probably better dealt with in Committee or in correspondence or discussion between the hon. Gentleman and me even in advance of the Committee. Secondly, I do not wholly understand them all. I am a mere Sassenach, totally untrained in the law of Scotland, and I may need to seek further elucidation from my right hon. Friend.
I repeat what I have said on more than one occasion: the Opposition will do nothing to discourage the Government from introducing proper measures of law reform. In fact, we wish that they would do it more often. We shall do all we can to speed the Bill, and I wish it well.
§ Sir Charles Fletcher-Cooke (Darwen)
The problem of selecting the forum for disputes that go across national boundaries is extremely difficult. In the rather muddled and pragmatic way in which we have gone on hitherto we have done rather well out of it, particularly in commercial matters. It is a considerable invisible export, bringing in a great deal of foreign currency. If there is a criticism to be made of the Bill, it is that there will be some diminution of that, if the principle that prevails—the so-called domicile of the defendant—is to be the ruling principle in civil litigation in future.
The words "shop around" and other disparaging comments about the present situation are heard. When the shop that is chosen is not our own, we become rather angry. Many people who have suffered personal injuries now go to the American courts if they can, because they may secure tremendous damages. But in commercial matters the shop chosen hitherto has been on the whole the courts of England and Scotland. It will be unfortunate if 954 the bill by some mischance considerably diminishes the purchaser's opportunity to take advantage of our excellent wares in the courts of this country.
However, in the modern world, as the right hon. and learned Member for Warley, West (Mr. Archer) said, it is not acceptable to have such confusion as now exists on the rules. We must have a more structured system. The characteristic chosen is the residence, as I prefer to call it, of the defendant.
Since we had an obligation to accede to these agreements and conventions, those who represented us in the negotiations did as well as could possibly be expected to preserve our interests. For example, we have secured what might be regarded as derogations, and the position about forum non conveniens has been preserved. The principle that one may select one's law, if one chooses, in a commercial contract, has also been preserved, although not sufficiently.
I can understand why we were unable to make any (lent in the principle of the meaning of the French word "domicil"—what we should regard as continuously resident and not permanently resident. I understand we had to accept that when negotiating, but I do not understand why we had to use the word "domicile" in our domestic legislation. Why cannot we use the words "continuously resident", or whatever the correct English translation for the French word "domicil" may be? That is obvious drafting sense because, if one uses a word such as domicile, it has different meanings in different statutes and will cause endless complications, not only in our courts, but even more in foreign courts.
For example, article 52 on page 53 states:In order to determine whether a party is domiciled in the Contracting State whose courts are seised of the matter. the court shall apply its internal law.That is clear. It continues:If a party is not domiciled in the State whose courts are seised of the matter, then, in order to determine whether the party is domiciled in another Contracting State, the court shall apply the law of that State.In other words a French, Italian or German court, in certain circumstances, must apply the law of England as regards domicile. It will be difficult enough in Britain to apply that in principle in future when the same word means two things. However, for a foreign court to have to make that distinction when deciding what English law is will be doubly difficult and unnecessarily so. Why must we use this word? Why cannot we say "continuously resident"? That is roughly what it means. If those words are not right, we might use "ordinarily resident", if that is what it means, or some other word describing its meaning. The English word "domicile", as presently constituted, does not mean what it is said to mean.
We are committing a great error in this matter. I well understand that we cannot now alter the concept behind the convention and the Bill. As the right hon. and learned Member for Warley, West said, we could alter our concept of domicile by removing from it its present meaning of a sense of permanence. As hon. Members know, a test of domicile is that one intends to live in a country for as long as one's natural years allow and intends to live there permanently. Although one does not always succeed, that is the test of domicile at any given moment. However, that is by no means the test in the Bill.
It is folly to use the same word for two totally different concepts, particularly when it is unnecessary to do so. I 955 am sorry to be so critical about this, but I foresee endless difficulties if we use the same word for two different purposes, albeit in different statutes.
In spite of the great care taken with the Bill, and its complexity, and the work carried out by the draftsmen and advisers, there are still great gaps, two of which were discovered by two noble Lords who were not on the Government Benches. Lord Bledisloe, in a maiden speech, discovered that there was a gap over quia timet injunctions in the law of tort. Lord Mishcon discovered that the statute inadvertently did something to reverse the general attack on the immunity of State trading organisations and other things which had been the trend of law for a long time. They both succeeded in getting their way in another place and are both shining examples of the advantage of having in Parliament—whether in the Upper or Lower Chamber—people who are practising the law, rather than being merely full-time politicians who just read about it. Therefore, we are under great obligation to those two Lords who found serious faults in the law. That was not surprising because of the Bill's great length.
My hon. and learned Friend the Solicitor-General, in introducing the Bill, rightly said that it has become the vehicle, not merely for European conventions, but also for making various adjustments to United Kingdom law, irrespective of Europe, as regards, for example, the enforcement of justice and judgment.
As I understand it, clause 17 deals with county court judgments, among other things. As my hon. and learned Friend knows, for some time he and I have been dissatisfied with the way that county court judgments are enforced, as opposed to the speed and skill with which High Court judgments are enforced, by a somewhat different procedure. As I understand clause 17, it may be possible by a side wind to achieve what I have certainly been trying to achieve—the registering of a county court judgment in the High Court. If one does that, one can presumably enforce it by the High Court processes. If my interpretation is right, that seems a most admirable achievement.
Another totally unrelated point, which has a general public interest, concerns the Channel Islands, the Isle of Man, Gibraltar and the sovereign bases in Cyprus. Clause 38 enables Her Majesty "by Order in Council" to extend the operation of the Bill to those territories, even though they are not part of the United Kingdom. Does it, could it or would it extend to those territories for all purposes? For example, would a Turk in sovereign bases in Cyprus, who had a dispute with a Greek who was continuously resident in Athens, be obliged to sue that Greek in Athens rather than in the sovereign bases? I can see trouble there. I am not yet clear to what extent Greece, although a full member of the Community, is covered by the Bill. It does not look as if Greece is covered. Is she? If not, will she be? If not, why not? These things must be mutual.
If one becomes a member of a community such as the EEC, one must take the advantages and the disadvantages together. I should like to know whether Greece is acceding, because I do not think that she is named. Secondly, what will be the effect of the Order in Council in clause 38 if and when it is made? It seems almost certain that it will be made, because there is provision in the European convention for such places.
956 Although the Bill has some disadvantages, it also has many advantages. The one that appeals to me most is that mentioned by my hon. and learned Friend—the extension of the principle of the Mareva injunction to Europe as a whole, that is to say, anyone in the whole of Western Europe who is a member of the Community will be able to freeze the assets of someone with whom he is in dispute if there is a danger that those assets will be withdrawn from jurisdiction. Hitherto, that has been possible only on a national basis. Now it is to be Europe-wide. That is a great step forward for Europe, and it is a step that I particularly like.
I am not sure whether it will be so easy, if the United Kingdom leaves the EEC, to unscramble the results of the Bill, as my hon. and learned Friend indicated to the right hon. Member for Down, South (Mr. Powell). Under clause 3, the interpretation is to be given by the European Court. The courts of the United Kingdom must accept the jurisdiction of the European Court in this as in other matters, and the clause specifically states that the conventions are to be interpretedin accordance with the principles laid down by and any relevant decision of the European court",including the reports of two learned and distinguished gentlemen named in the Bill. It must be a long time since any distinguished foreign lawyers have been named ipsissimae verbae in a statute of this Parliament. I do not object to that, but it seems to me that that knits this measure pretty tightly into our membership of the Community. I believe that it will be extremely difficult to unscramble it, and I for one am glad that that should be so.
§ Mr. Barry Porter (Bebington and Ellesmere Port)
I hesitate to rise in this glittering assembly of silken-tongued and silken-minded Members. I have rarely had leading counsel's opinion so forcefully. Indeed, I have never had it so cheaply. I am grateful for it.
There are times when I have wondered about the propriety of Bills being introduced in the other place. Oddly, and probably illogically, I have felt that the elected Chamber gives an aura of democracy and respectibility to legislation that is somehow missing when it comes from the other direction. However, my reservations were immediately dispelled when I read the Bill and the deliberations of their Lordships upon it. The more I read, the more I was grateful to my right hon. and learned Friends the Lord Chancellor and the Lord Advocate for undertaking the introduction of this mind-boggling myriad of legal complexity.
My right hon. and learned Friend the Lord Chancellor was correct to indicate in his Second Reading speech that the proposals are not of throbbing human interest. Indeed, they make other things throb, but not human interest. I can confirm that my own constituents are not discussing the Bill's detailed provisions in the pubs, the clubs and on the streets.
I am warned by my more experienced hon. Friends that the best way of getting appointed to a Standing Committee is to speak on Second Reading. Let me make it as clear as I possibly can that I would not be a willing or enthusiastic volunteer for such a task, although I have a sinking feeling that that plea will not be listened to.
Although, to put it bluntly, this is a boring, technical Bill, it is none the less a very important step forward in 957 the reform of our civil code, and I welcome it as such. However, I doubt that those who will be sitting the Bar and Law Society finals—certainly the paper on private international law—in the summer will welcome it as much as I do.
I welcome it as a practising solicitor, although I do not purport to speak for the Law Society, which would be horrified if I did. At least the Bill determines clearly who may be sued in our civil courts and, importantly, in what circumstances a person who does not reside in the area of a court may nevertheless be sued in it. My hon. and learned Friend the Solicitor-General has explained this with admirable clarity, and I shall not delay the House further other than to say that the solicitor's side of the profession will welcome it.
To me, however, the major points of interest are the provisions relating to the enforcing of judgments. On occasions, there have been problems that have caused great headaches to solicitors, and frustration, bitterness and anger to some successful litigants. So far as I can judge from the Bill, as a result of the convention that enforcement will very nearly be made automatic.
The 1933 Act, which I assume this measure supersedes, was useful in its day, but the world of commerce has moved considerably since that time, especially since the formation of the EEC. The Bill reflects that advance very much in the area of enforcement.
I also draw attention, and give my wholehearted support, to clauses 23 to 25 in part IV, which have been explained by the Solicitor-General and obviously attract support from all sides of the House. Clearly, the freezing of assets in this country and in countries throughout Europe will be of great practical advantage to practitioners and litigants. That is an excellent and much-needed provision.
Obviously, the examples to which I have referred are to me the most interesting parts of the Bill, perhaps with the exception of clause 3, to which my hon. and learned Friend the Member for Darwen (Sir C. Fletcher-Cooke) referred. That relates to the interpretation of the conventions that are now being ratified and refers to reports of Mr. Jenard and Professor Schlosser.
My right hon. and learned Friend the Lord Chancellor described that provision in his speech as "unusual". I would go rather further. It must be unique. I am told that such reports are apparently common in international treaties. I somewhat reluctantly concede that at this stage we might move with the times, although I trust that what is apparently a new principle in English law will not be spread too vigorously or too quickly into our domestic law. Perhaps that matter can be examined in some detail in Committee.
The same comment applies to the new concept of domicil, domicile, and the splendid French pronunciation of my hon. and learned Friend the Member for Darwen. Again, the wording should perhaps be considered in great detail in Committee.
The provisions of the Bill in relation to maintenance order enforcement have not yet been mentioned. I have read those provisions with interest. I warn those who consider that they will solve the problems of enforcing maintenance orders that they should not be too disappointed if that does not turn out to be so. I can tell the House from my experience that it is not the most 958 difficult thing on earth to avoid maintenance payments if one is determined to do so and one is without great capital assets.
Those are the only comments that I wish to make, save to say that all in all, the Bill is welcome. Generally, it is well thought out and carefully drafted. So it should be, after 10 years or more of discussion. If any argument were needed for the retention of the House of Lords, the careful attention and skilled knowledge that have been directed towards the legislation would provide an unanswerable case.
§ Mr. Alex Pollock (Moray and Nairn)
I was encouraged by the speech made by my hon. and learned Friend the Solicitor-General, who was kind enough to admit that even Her Majesty's Law Officers regarded the Bill as a complex measure. When I first looked at the Bill, I found myself brushing away several mental cobwebs as I recalled distant lectures on private international law.
Part of the Bill applies to Scotland. I propose to look at the Scottish implications. In this context I should like to refer to the report of the Scottish Committee on Jurisdiction and Enforcement, published in 1980. That committee was chaired by Lord Maxwell, one of Her Majesty's senators at the College of Justice and now chairman of the Scottish Law Commission. I am sure that any hon. Member familiar with the Scottish Bench would readily agree that Lord Maxwell was eminently qualified for the task. He has a great capacity for clarity of thought. His finely honed mind has produced an excellent and detailed report, which must have made the preparation of the Bill much easier than it would have been otherwise.
It seems that, by adopting the convention in this way, we shall make the enforcement of non-Scottish judgments in our courts an easier operation than it is now. At this stage I ask my hon. Friend the Solicitor-General for Scotland to confirm my understanding that, unlike previous enforcement procedures, it will not now be necessary to look behind foreign judgments to see whether the original jurisdiction was well-founded.
Schedule 7 deals with rules on jurisdiction in Scotland. Rule 2(5) is concerned with maintenance provisions. In the past there were frequent problems of enforcement when a foreign husband deserted his Scottish wife. Curiously, such cases have increased significantly in recent years—not least because of the increase in the popularity of package holidays to the Continent. Many Scottish families found that their daughters were captured by the hearts of some hot-blooded males, who came back to live for some time in Scotland, found it too cold for their liking and departed, leaving their wives without adequate financial resources. It appears that, under the provisions in the Bill, it will be much easier for deserted wives in Scotland to secure proper maintenance.
One problem that has arisen during the debate has been the vexed question of domicile and comparison with the French meaning of that legal term of art. My hon. and learned Friend the Member for Darwen (Sir C. Fletcher-Cooke) was concerned about that aspect.
I conclude my remarks by offering a word of hope to my English legal colleagues. It is hope based on the different origins and developments of our legal systems. In legal history there was a period when the Scots had no relations with England. Fortunately, we were welcomed as law students in Dutch universities, which taught us on 959 the basis of the Roman imperial system. Therefore, we now find that the Scottish legal system is, in a sense, a happy bridge between the Anglo-American-Commonwealth system and the Continental system. I suggest that the Scottish legal approach to domicile offers hope for the resolution of some of the difficulties about which we have heard in the debate. I trust that will prove to be the case. I wish this welcome measure a smooth passage.
§ The Solicitor-General for Scotland (Mr. Peter Fraser)
I thank the right hon. and learned Member for Warley, West (Mr. Archer) for the warm welcome that he extended to the Bill. To many people it may appear to be an arcane and obscure piece of legislation, but those of us who have attempted to consider it in detail are unanimously of the view that although there may be points to consider in detail in Committee, it is to be welcomed as an improvement in the law in all parts of the United Kingdom.
I shall address myself principally to the provisions that affect Scotland. Before doing so it might be appropriate if I dealt with some of the points that have been made in the debate. The first two points raised by the right hon. and learned Member for Warley, West related to domicile and whether it would be possible in the Bill to unify in one form or another the concepts of domicile that appear to be running alongside each other if the Bill goes through without change.
The right hon. and learned Gentleman may be aware that in all the preparation of the Bill and while the convention was under consideration by lawyers in this country, consideration was given to whether the existing concepts of domicile, habitual or ordinary residence would serve for the purposes of the convention. However, it has been concluded that none of those concepts would be satisfactory as the determining factor establishing jurisdiction. Therefore, we cannot escape from the fact that essentially, a new concept of domicile has to be introduced.
In terms of taxation and also in areas of the law such as testing the validity of wills, there is a different use—possibly a more accepted use—of the term "domicile". Desirable as it may appear at first sight to attempt to unify those concepts, I am bound to say to the right hon. and learned Gentleman that it has not proved possible to do that. I believe that he is aware that in another place a similar attempt was made to bring that about.
The second point that the right hon. and learned Gentleman raised was about the issue of legal aid. The general question of legal aid is left by the convention to the national law of the contracting States. There are a number of bilateral agreements covering that question. Legal aid has been considered recently by the Hague conference on private international law. However, clause 39 provides for the granting of legal aid in proceedings to enforce foreign judgments.
The right hon. and learned Gentleman advisedly kept off the two points of concern that have been affecting the Law Society of Scotland. The first was on the elimination of the grounds of jurisdiction in Scotland by the arrestment of movables in Scotland. The Law Society felt that that was a practical and useful ground for jurisdiction in 960 Scotland. In one regard it is probably right. The right hon. and learned Gentleman will be aware that that ground for jurisdiction in Scotland is already considered by the courts in England to be exorbitant. Although it will be eliminated under the provisions of the Bill, one other advantage of the Bill more than makes up for that. Furthermore, one of the advantages of the arrestment provision separate from the founding of jurisdiction is found in clause 25, which relates to the holding of assets to satisfy a judgment debt at a future date. That is probably the point that more greatly concerns the Law Society of Scotland. In any event, the Law Society of Scotland has already had a meeting with the Lord Advocate. The point has been explained, and the Law Society of Scotland is considering its position. It is also considering the other point which relates to the registration of judgments from other parts of the United Kingdom at Court of Session level instead of sheriff court level, which it thought desirable.
Before we reach Committee stage, I hope that both of these problems will be resolved in discussions with the Law Society of Scotland. If, however, they are not settled, I shall write to the right hon. and learned Member and explain to him both the position of the Law Society of Scotland, and that of the Government.
My hon. and learned Friend the Member for Darwen (Sir C. Fletcher-Cooke) asked a number of questions relating to domicile. It would have been possible in the Bill to have used a different expression for domicile if we had so wished or, alternatively, to have qualified domicile by the addition of the words "forensic" or "judicial", or words to that effect. To use a term that is already in existence in the law of the United Kingdom would be acceptable only if the concept of, for example, residence or ordinary residence, fitted in properly for the purposes of the Bill. However, this is not the case. My hon. and learned Friend will accept that if one looks to the wider provision of the Bill and to the terms of the conventions, a contrast is drawn between domicile and habitual residence. What further concept might have been introduced between the two is rather difficult to envisage. Although my hon. and learned Friend made reference to the French word "domicil" in the original convention, we are concerned with the English word, domicile, appearing in the text.
I turn to the position of Greece. As happened in Britain's case, Greece is now obliged to accede under article 63 of the 1968 convention, and negotiations for its accession are already in train. My hon. and learned Friend raised a number of other detailed points, but it will be easier if I write to him, or alternatively, ensure that those matters are carefully dealt with in Committee.
My hon. Friend the Member for Bebington and Ellesmere Port (Mr. Porter) said that the Bill was not exactly humming with human interest. Nevertheless, I am grateful for the welcome that he has extended to it. In time, the Bill will prove to be a valuable addition not only for academic lawyers but for active practitioners such as himself.
My hon. Friend referred to Mr. Jenard and professor Schlosser, who have been treated in another place and in this House with some merriment. It is probably a unique experience to find Continental lawyers specifically referred to in United Kingdom legislation. Clause 3 of the Bill, which deals with the interpretation of the conventions, states that their reports 961may be considered in ascertaining the meaning or effect of any provision of the Conventions and shall be given such weight as is appropriate in the circumstances.I leave my hon. Friend to consider just what weight the judges, whether in the English courts or the Scottish courts, will give to those learned gentlemen's views. It would be fair to say that if a reference is made to the European Court from one of the national courts of the United Kingdom, the European Court would have regard to the two reports. That would be possible within the terms of the Bill. It would seem only reasonable that while it is being considered at a national court level, there should be the opportunity to see what sort of consideration might weigh with the European Court. It goes no further. The reports are in no sense binding on the national courts of the United Kingdom.
My hon. Friend the Member for Moray and Nairn (Mr. Pollock) paid a fulsome and handsome tribute to Lord Maxwell for the excellent report that he prepared on jurisdiction and enforcement of judgments in Scotland. That compliment will be widely echoed not only by academic lawyers but by all practising lawyers in Scotland.
I should like to say more about the considerations that have led us in Scotland to decide that this opportunity should be taken to reformulate and codify, on the basis of the rules of jurisdiction contained in the 1968 convention, our own domestic rules of jurisdiction. In this we are following the recommendation of the committee to which I have referred, and I join in the tribute to Lord Maxwell and to the members of his committee for providing such expert and comprehensive guidance in matters of considerable complexity.
As the report of the committee points out, the convention rules of jurisdiction, and the rules derived from the convention which it is intended in future should govern jurisdiction as between the constituent parts of the United Kingdom, in general proceed on the same principles as, and have similar effect to, the existing rules of jurisdiction under Scots law. This may be compared with the position in the other part's of the United Kingdom, where, although the practical results, in terms of situations in which the courts will take jurisdiction, are very similar, the principles on which jurisdiction is based are very different from those of the convention.
As my hon. Friend the Member for Moray and Nairn has pointed out, this has much to do with the historical origins of the law of Scotland and the relationship that has existed in the past with such countries as Holland and their legal systems. In Scotland, therefore, it is possible to adopt for all purposes rules based on the convention rules without changing in any major way the circumstances in which our courts will take jurisdiction. We agree with Lord Maxwell's committee that this should be done rather than to maintain in being, in a way which would be bound to be confusing to practitioners, two separate and slightly different sets of rules of jurisdiction applying to the same subject matter.
For example, in order to ascertain which court had jurisdiction over a defender because he lived within its area, if the convention rules were not adopted generally, it would be necessary first to determine whether the defender was domiciled in Scotland in the sense of the present Bill, and then to apply the existing law with its slightly different test of "residence" to determine whether any particular sheriff court within Scotland has 962 jurisdiction. It is clearly better, so far as possible, to apply a single test for both purposes, and this is what we are trying to do with the new rules of jurisdiction in the Scottish courts that are contained in schedule 7 to the Bill.
The operation of these new Scottish rules and of the existing rules of jurisdiction in the rest of the United Kingdom which are to remain essentially unchanged, will of course be subject to the provisions of the convention and of the provisions in part II of the Bill allocating jurisdiction within the United Kingdom. In a case to which the convention applies therefore, the Scottish courts will have jurisdiction only against a person domiciled in another convention country if the convention gives them that jurisdiction, and similarly, in cases to which part II and schedule 4 apply, the Scottish courts will have jurisdiction only against a person domiciled in another part of the United Kingdom in so far as the operation of schedule 4 gives them that jurisdiction.
Essentially, the new rules in schedule 7 will apply to govern the circumstances in which a Scottish court has jurisdiction over persons domiciled, in the sense of this Bill, in Scotland, or in another part of the world outwith both the rest of the United Kingdom and the other States of the European Community and to allocate jurisdiction.
Although it is a complex set of measures to sort out how jurisdiction is to be established in the courts of Scotland and although it may appear that different parts of the Bill apply in different sets of circumstances to different States, it is possibly far simpler at the end of the day than it appears by looking at the various schedules and parts of the convention included within the Bill.
In principle, the new rules will apply to all civil proceedings before the Scottish courts, and not merely to those that would fall within the scope of the convention. Certain matters are however excluded. Of these perhaps the most important is that the new rules will not apply in proceedings concerning or related to status or legal capacity. The new rules are essentially designed for actions which relate, in the widest sense, to property of some kind, and quite different considerations apply in relation, for example, to actions of divorce, adoption proceedings or proceedings relating to the custody of children. The distinction being made is not a new one—that goes back to the point that I had to make with regard to the concept of domicile—since the rules of jurisdiction in relation to such proceedings have always differed from the general rules of jurisdiction, in particular so as to ensure that the parties to such actions have a sufficiently close connection with Scotland.
The other main areas which are excluded from the scope of the new rules are bankruptcy and winding up, and commissary proceedings; the latter includes in particular matters relating to the appointment of executors and to applications for confirmation to the estates of deceased persons. Again, all these are matters for which there are at present special rules of jurisdiction, and the new rules would not necessarily be at all appropriate for them.
What the new rules do deal with, therefore, is the circumstances in which the Scottish courts are to have jurisdiction in the central core area of civil litigation. It will govern jurisdiction, for example, in most disputes relating to contract or in actions based on delict and, leaving aside divorce and related matters, will cover the great bulk of civil proceedings in our courts. We hope that it will be useful to practitioners to be able to deal on the same basis not only with domestic cases and those having 963 an international element but to have available the rules of jurisdiction in the Scottish courts in a convenient and codified form. So far as the Court of Session, at least, goes, this is a novelty which we think will be generally welcomed since the bases of its jurisdiction have in the past in general been derived from common law with a variety of statutory additions.
Finally, I should like to emphasise that, although the form of our jurisdictional rules is being changed considerably, their substance will be affected remarkably little. In general, it will remain possible to raise actions in Scotland in the same courts as previously. One change of some substance, however, is provided by rule 2(15) of schedule 7 which introduces additional grounds of jurisdiction against co-defenders and third parties. This will provide a useful extension of jurisdiction of the Scottish courts to meet modern commercial conditions. Another change which will be of benefit particularly to deserted wives and children is that rule 2(5) of schedule 7 will enable persons seeking orders for payment of maintenance generally to raise their actions, if they so wish, in their own local court rather than having to go to the court for the place in which their husband, the maintenance debtor, is domiciled.
The Bill and its Scottish provisions deal with complex and highly technical areas of law, but I hope that I have said enough to convince the House that these provisions will bring about, to a modest degree, a simplification and clarification of Scots law and will make life easier for those who practice it and for those who wish to litigate in the Scottish courts.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).