§ Baroness ELLESMy Lords, I beg to move that this Bill be now read a second time. It comes to your Lordships' House from another place, where it was introduced by a Private Member who had been successful in the ballot for Private Members' Bills. It was welcomed by Her Majesty's Government as a useful contribution to law reform, although it is a modest Bill and does not seek to make great modification in the present law. It is necessary from time to time to obtain evidence from a witness who is outside the jurisdiction of the court where the evidence is needed. The 1968 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters facilitates the taking of such evidence, and the United Kingdom signed this Convention in 1970. At the present time the powers of the United Kingdom courts to obtain evidence for foreign courts are regulated by the Foreign Tribunals (Evidence) Act of 1856 and they do not meet in all respects with the requirements of the Convention. As my noble and learned friend Lord Hailsham said, one should not tinker too much with the law and encourage too much law reform too quickly. But even he, I think, will agree that the period that has elapsed since 1856 has given us time for thought; and 35 it is time that some modification was made.
The purpose of this Bill is to introduce into our municipal law the necessary modifications which will enable us to ratify the Convention. It is therefore advisable to repeal the 1856 Act as well as two Acts of 1859 and 1885 which regulate the obtaining of evidence for Commonwealth countries, and replace them by a new, comprehensive code which will embody all the requirements of the Convention and enable us to meet our obligations under that Convention. The Bill is technical, necessarily so; therefore I will try to confine my comments merely to those changes to the existing law which are introduced by this Bill.
Clause 1(b) will enable evidence to be taken on request not only for cases which are pending before a foreign court, but those which are merely contemplated, in accordance with Article 1 of the Convention. Clause 2(2) lists the orders a court may make as to the forms of evidence. The power to order the examination of witnesses and the production of documents is now extended under this subsection to include other forms of evidence which may be provided, including the inspection of property and the medical examination of any person. It should be observed that subsection (3) provides that no step can be required to be taken if it is not already possible to do so for the purpose of civil proceedings in the court making the order. The only modification is in compliance with frequent requests from foreign courts that evidence should not be on oath, so that this will now be possible. It should be observed that under Article 12 of the Convention a court must comply with the request if it has the power to do so, even though the request relates to proceedings of a kind in which an order would not be made in an English court, such as a request for blood samples. On the other hand, the Scottish courts would not be able to comply with such a request for blood tests since they have not the power in any circumstances to do so.
Subsection (4) is a protection against what are known as "fishing expeditions" relative to the discovery of documents or other material. Article 23 of the Convention provides for a State to declare 36 its refusal to execute letters of request which are issued for the purpose of obtaining pre-trial discovery. I understand the United Kingdom has the intention of making this declaration on ratification under the relevant Article, and I should be grateful if the noble and learned Lord would confirm this, as anxiety has been expressed on this point. Clause 3 regulates the privileges available to a person and the circumstances in which he can be compelled to provide the evidence requested. A new provision is introduced in subsection (4) according the witness the privilege of refusing to give evidence required if he could not be compelled to do so in civil proceedings in the territory of the foreign court making the request. This was not possible before.
Clause 4 is designed to avoid separate applications from a foreign court for each part of the United Kingdom where there are the different jurisdictions of Scotland, England, Wales and Northern Ireland. Under this clause, United Kingdom courts will be able to order witnesses who are outside the courts' jurisdiction to submit to examination so that evidence can be taken before an examiner, including one who is outside the jurisdiction of the court. Consequential on the repeal of the earlier Acts and also Section 24 of the Extradition Act 1870 which covered evidence in criminal proceedings in Scotland, it has been necessary to provide for such evidence in this Bill. No changes are contemplated in existing provisions. They therefore do not coincide with the new provisions for civil or commercial proceedings. It is not considered essential that evidence for criminal proceedings should necessarily follow the same rules as for civil or commercial proceedings.
Clause 6 provides for evidence for international proceedings, these proceedings being defined in subsection (3). The definition is widely drawn, but necessarily so, in order apparently to cover the kind of tribunals set up under treaties to which the United Kingdom may not be a party. These proceedings will take effect only where there has been an Order in Council, and it is with great discretion that these Orders in Council are executed. Clause 7 finally grants the powers to make rules of court. That is the outline of a Bill designed to enable us to co-operate more fully in international judicial proceedings and which at the same time 37 should result in protecting the rights and interests of the individual. I therefore commend the Bill to the House and beg to move that it be now read a second time.
§ Moved, That the Bill be now read 2a.—(Baroness Elles.)
§ 4.57 p.m.
§ Lord WILBERFORCEMy Lords, I venture to make a few observations on this Bill partly in recognition of its subject matter which, although perhaps not quite so passionately interesting as limitation of actions, is nevertheless of some interest and practical importance; and also out of recognition to the noble Baroness who put the provisions of it so clearly and attractively before us. I should like to make two observations. One is of a general character and one of a particular character. The general one is this: this subject of evidence as regards other jurisdictions is part of what one may call international procedural law in which are included a number of other subjects, as for example service of process abroad, enforcement of foreign judgments, recognition of arbitration agreements, enforcement of arbitration awards, and extradition and fugitive offenders. All these are matters as to which convention and legislation is proceeding from time to time in a leisurely way covering different areas, sometimes the area of the European Economic Communities, sometimes the Council of Europe, sometimes a limited area as between this country and another country such as the United States.
My plea as to this is two-fold. First, we really should get on rather more rapidly than we are able to at present with the progress on these matters. It is depressing how long it takes to get a convention agreed as to any of these subjects. There then has to be legislation here and we have to persuade other countries to act on the same lines. There are too many tired waves vainly breaking in relation to these subjects. I know I am pressing at an open door in asking the Government, through the noble and learned Lord who sits on the Woolsack, to bend their efforts towards an acceleration of progress in these subjects, and perhaps one may invite the noble Baroness who is so influential in European matters to urge upon her colleagues in European organs the need for greater speed and activity in getting these brought up to 38 date. They are lawyers' law, very much so, and are enshrouded in technicalities. Therefore laymen rather tend to shun and shrink from them and leave them to the lawyers. I think that the laymen are mistaken on that, because they are all greatly interested in the practical working out of agreements on these subjects and I feel that the democratic assemblies which exist have a great interest in speeding up the lawyers to make progress.
As an appendix to that, one might look a little more ambitiously towards the future and consider whether the time is approaching when we might aim at having a comprehensive code of international procedure which would cover all these matters. They are not so difficult; it seems ridiculous that there should be this delay and complication about simple matters like enforcing judgments, arbitrations and so on, and that one should deal with them piecemeal. As one advances on one front, others are left behind and then, in a jagged way, we have to catch up on those left behind. Within the area of Europe, where we share common legal systems and thinking, it ought to be possible to have a simple, comprehensive and generally accepted code dealing with these practical matters. I should like to raise a gentle voice in urging those who have influence to think on those lines.
The point which I particularly wish to mention has been adverted to by the noble Baroness, Lady Elles. It arises in Clause 6 of the Bill, which enables an Order in Council to be made in relation to international proceedings. Subsection (1) says:
… shall have effect in relation to international proceedings of any description specified in the order.Then one looks at subsection (3) and sees that it is widely drafted. It refers to… any other court, tribunal, commission, body or authority (whether consisting of one or more persons)which, under a whole lot of arrangements or international agreements—maybe an agreement between any two States, between Utopia and Ruritania, or any resolution of the United Nations—exercises any functions of a very wide character including conciliation or inquiry. One can see that there might be a number of bodies set up by various means to perform functions which would fall within 39 those words to which we in the United Kingdom might not be anxious to extend the process of our courts. As the noble Baroness said, Orders in Council under this section ought to be made circumspectly.I wonder whether the power in subsection (1) is sufficiently clearly given, so as to enable a distinction to be made between the different bodies and methods by which these tribunals may be set up. It says:
proceedings of any description.That might be read as meaning civil proceedings, criminal proceedings, matrimonial proceedings, et cetera. I am not sure that "any description is the right phrase to enable discrimination to be exercised under subsection (3). To put it clearly, one would like to see wide powers given regarding established bodies, such as the International Court of Justice, the European Court at Luxembourg, the European Court of Human Rights and the European Commission of Human Rights. Bodies of that sort should automatically be brought within the provisions of this clause. Otherwise, there should be an ad hoc exercise of the power by Order in Council to extend the rest of the provisions of this Bill to them. I hope the wording is appropriate for that purpose and that the noble and learned Lord on the Woolsack will agree that a rather careful look will be taken at each case for extending the provisions of the Bill. With those observations, I am happy to support the Bill and hope that it may be rapidly passed.
§ 5.4 p.m.
§ The LORD CHANCELLORMy Lords, it is a very great pleasure for me to welcome this Bill on behalf of the Government, and to express my gratitude, and the gratitude of the Government, to the noble Baroness, Lady Elles, for finding time in her very busy schedule to undertake the responsibility of guiding this Bill through the House. Like the noble and learned Lord, Lord Wilberforce, I should like to compliment her on the admirable and clear way in which she explained the Bill, thereby making it unnecessary for me to repeat the operation.
As the noble Baroness has explained, the motivation for this Bill is the need 40 to ratify the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters which the United Kingdom signed as long ago as 1970. The Convention is already in force between Denmark, France, Norway and the United States of America. It is in our interest that the Convention should receive the widest possible acceptance, and I agree we should accordingly ratify it as soon as possible. It is our intention to do this. I share the feeling of impatience at the gap in time between the signing of these Conventions and their ratification and putting into legal effect. But it is only fair to say—and I hope I am not being unduly vainglorious about this—that when this country gives its signature to a Convention it really intends not only in the fullness of time—and perhaps the time is too full—to ratify them, but, what is more important, to give effect to them. Without being too critical of others, there is sometimes detected in international conferences a ready willingness to sign but a great reluctance to give effect in due course to the Convention agreed upon.
As the noble Baroness has said, this Bill introduces the relatively minor changes in our law which are necessary before we can ratify the Convention. It gives to the courts the additional powers which the noble Baroness has described, but, as she has also explained, the powers are accompanied by appropriate safeguards. Apart from introducing the changes in the law which have been described, the opportunity has been taken in the Bill to codify most of our law on the subject of taking evidence on behalf of courts outside the jurisdiction, including the taking of evidence as between different parts of the United Kingdom. This has the useful advantage of reducing the burden of looking in different places for one law. The Bill is accordingly a valuable one. It meets with the entire approval of my colleagues, the Ministers responsible for these matters in Scotland and Northern Ireland, whose Departments have had a chance to examine it closely. The Bill will provide a welcome codification of a comparatively technical but, nevertheless, useful branch of legal procedure. It will enable the United Kingdom to ratify the Hague Convention. As I have said, it is our intention to do so quickly.
41 In relation to the question raised by the noble Baroness, we intend to make the declaration permitted by Article 23 of the Convention in due course on ratification. Perhaps I should also refer to the point that was raised by the noble and learned Lord, Lord Wilberforce, as to the language of Clause 6 which is, admittedly, in very wide terms. I will certainly examine again the appropriateness of the wide language of "international proceedings of any description ". What is intended is that there should be covered in the term "international proceedings ", proceedings before the International Court of Justice or any other court, tribunal, commission, body or authority set up under any international agreement or any resolution of the General Assembly of the United Nations. The definition has been widely drawn so as to cover international tribunals exercising functions under treaties to which the United Kingdom is not a party. But, no doubt, when Orders in Council are made under subsection (1), care will be taken that bodies that are not clearly contemplated by the general concept of such international proceedings will not be included. We will look at the point in case we are opening the doors too wide in the language that has been used in Clause 6 of the Bill.
The conclusion that I hope the House will reach, in agreement with the noble Baroness, is that we should proceed to give a fair wind to this Bill. We believe it will be part of our duties in the field of international comity to do so, but in addition I believe that litigants in this country will gain benefits on a reciprocal basis similar to those in other countries, and they will be able to get a lot more assistance from foreign courts in collecting the evidence they need for proceedings in this country. Accordingly, I commend the Bill to the House.
§ 5.11 p.m.
§ Baroness ELLESMy Lords, I should like to thank the noble and learned Lord the Lord Chancellor very much for his comments on the Bill. I would also thank the noble and learned Lord, Lord Wilberforce, for what he said. I am 42 delighted, incidentally, to welcome him back to the House after his illness, and am sure your Lordships will share in my pleasure.
I think we all share the wish to see the development of law between nations becoming easier rather than more difficult. I certainly endorse the hopes and wishes expressed by the noble and learned Lord, Lord Wilberforce, that there will be closer integration, at any rate in Europe, so far as procedural law is concerned and indeed in many aspects of substantive law, which should make the understanding of commercial practice and general transmission of goods, capital and persons very much easier throughout Western Europe. I know that all of us who are in Europe see this happening gradually—of course it is a very slow process—but we have to respect the laws of other Member States who may move at a speed different from our own. This has to be taken into account. Those of us who are in the European Parliament certainly will try to play our part in giving our views and in proposing new methods and procedures which will promote closer integration between peoples, particularly with regard to legal procedures, so enabling litigants in any country to avoid becoming quite so frustrated and also to avoid some of the expense involved in going to court. I therefore welcome the wise comments of the noble and learned Lord, Lord Wilberforce.
I am also most grateful to the noble and learned Lord the Lord Chancellor for having confirmed what I put to him about Article 23 on the declaration. I know he will look at this question of Orders in Council with regard to international proceedings. When those of us who have served in the United Nations, see the words, "Resolution of the General Assembly ", we sometimes have a question mark in our minds as to the validity or even the sense of it but when an Order in Council is contemplated, I know this will be taken into account in giving effect to the provisions of this Bill. I commend this Bill to your Lordships.
§ On Question, Bill read 28, and committed to a Committee of the Whole House.