§ 4.10 p.m.
§ Second Reading debate resumed.1140
§ Lord Mishcon
My Lords, your Lordships' House is greatly indebted to the noble and learned Lord who sits on the Woolsack, not only for the summary that he has just given of the history of the events leading to the presentation of this important and, even to the initiated, complex piece of legislation, but also for the masterly patience and clarity with which he has explained its provisions. If I may say so, he has climbed his verbal mountain with his customary elegance and courage.
This is not just a lawyers' Bill, although it would be true to say that it probably introduces the most important new chapter of community law into the United Kingdom since the European Communities Act 1972. It is of immense importance and relevance to all those concerned with international trade and, among others, to the consumer public, to the insurance world and to those burdened with, or entitled to the benefit of, maintenance payment orders in matrimonial proceedings. It affects our law in every part of the United Kingdom.
As has been pointed out, our obligation is clear under Article 3(2) of the Accession Treaty when we joined the EEC. We undertook—as did Denmark and Ireland who, with us, were the new members—that we would accede to the 1968 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters entered into by the original Six members, and the protocol of June 1971 on its interpretation by the Court of Justice, to which the noble and learned Lord the Lord Chancellor referred.
However, we were entitled to negotiate with the original member states with a view to procuring agreement to amendments to the original convention. As the noble and learned Lord pointed out, this convention goes much further than merely providing for reciprocal recognition and enforcement of judgments. It provides for a substantial unification of the grounds on which courts of member states may exercise civil or commercial jurisdiction and for mandatory rules governing such jurisdiction. Indeed, when the court of one member state is asked to enforce the judgment of a court of another member state it may not—save in very limited circumstances—re-examine the jurisdiction of the original court. This opens up a very new chapter in EEC law and, indeed, is a very new chapter in our own law.
It is not surprising, therefore, that some misgivings were expressed in another place when the provisions of the original convention were debated on 27th February 1978, with Parliament having the benefit of the Thirty-second Report of the Select Committee on European Legislation and the Forty-fifth Report of your Lordships' Select Committee on the European Community. Suffice it to say now that by far the most important amendments—and they were very important amendments—which were recommended at that time were successfully and skilfully negotiated on behalf of the previous Government who were given full support by the then Opposition before my noble and learned friend Lord Elwyn-Jones—who would have wished to be present in the House at this moment but is sitting on the Judicial Committee of the Privy Council, and hopes to be here later—signed the Accession Convention on which the Bill now before 1141 the House is based. He was then able to say, if I may quote him in his absence, at the close of his address, which was made not only on behalf of the United Kingdom but also on behalf of the other two new member states:I believe that the Accession Convention is not only the gateway for bringing the new member States into the system. It also brings about a genuine and substantial improvement of the original Convention of 1968 and we welcome it".As the noble and learned Lord the Lord Chancellor said, it is right that we should pay a tribute to those responsible for these negotiations in the last Administration; to the Kilbrandon Committee, to the interdepartmental working party under Lord Justice Kerr, and to Lord Maxwell who advised the Lord Chancellor and the Lord Advocate respectively on these matters. I ought to add, if I may, that the advisory working party included representatives of the Joint Bar-Law Society Working Party, and I know what a useful part those representatives played.
Turning to the Bill now before us based on that Accession Convention and incorporating, as has been said, the important amendments to the original 1968 convention, on behalf of my noble friends I should like to give it a general welcome. I would also wish to raise with the Government some general matters with which it may be convenient to deal at this stage, in the hope that it may facilitate some of the remaining stages of the Bill. As the noble and learned Lord the Lord Chancellor said so clearly, in general terms, jurisdiction in this Bill is based on what is termed "domicile". It is a term which has many meanings in many parts of the world. In the United States of America there are varying rates of duty from state to state and the question of what state is entitled to estate duty, for example, depends on domicile. Therefore, I understand that this question of domicile provides a very welcome contribution to the livelihood of my American legal colleagues.
Indeed, I note that the present Solicitor-General, when speaking in another place in the debate of February 1978—to which I have already referred—recalled a lecture at Columbia University entitled, "Death and taxes are certain, but what of domicile? "In our law, the domicile is based on a fixed and settled intention to remain. Domicile in French law, for its part—and the noble and learned Lord the Lord Chancellor referred to this—depends on the principal residence at the time in question.
Domicile in the context of this convention and this Bill is to be determined in accordance with the law of the member state. The Solicitor-General at that time, Mr. Peter Archer, said in another place in this debate on 27th February 1978, at column 198 of the Official Report:the Convention leaves the definition of "domicile" to domestic jurisdiction. It would obviously make sense that there should be no serious inconsistencies between the various definitions of domicile, and it may be—I say no more than this, and I am not attempting to drop any broad hint—that, if we were so minded to legislate on the concept of domicile in English domestic law for this purpose, it might be a sensible time to look at it for other purposes as well so that we do not have one basis of domicile for one purpose and a totally different basis for another. But that is something that we shall all have ample opportunity to consider when the question arises".The question now arises. If one looks at Clause 38 of Part V of the Bill, one finds the definition of 1142 "domicile" for the purposes of this Bill, and this will be the "internal law" or "the law of the contracting state" applied under Article 52 of the convention. "Domicile" for purposes of deciding whether or not an individual is domiciled in the United Kingdom, or a particular part of the United Kingdom, in this Bill is governed, as the noble and learned Lord said, by residence in the United Kingdom, or in that part of the United Kingdom, and there is an additional factor. It is that the nature and circumstances of his residence indicate that he has a substantial connection with the United Kingdom or that part of the United Kingdom. So we have yet another enactment dealing with domicile, residence, and kindred matters apart from tax legislation and other legislation, and apart indeed from the recent British Nationality Act. Your Lordships will recall the interesting discussions at all stages of that Bill in your Lordships' House on these aspects of residence and connections with the United Kingdom.
This Bill provides that, unless the contrary be proved, the individual will be deemed to have a substantial connection with the United Kingdom, if there has been residence for the last three months or more. That is a very special definition of "substantial" connection with this country". Again one bears in mind the discussions which took place so recently in your Lordships' House on the British Nationality Bill as to what constitutes a substantial connection with this country under that enactment.
While appreciating to the full that the grant of nationality, and taxation liability, and the grant of civil jurisdiction and enforcement of judgments by no means embrace the same principles or factors, what I, as a lawyer, do lament is the manner in which we are proliferating in different legislation vastly different interpretations of what we mean in law by "residence", or "ordinary residence", or "domicile", or "substantial connection with this country". We are in danger of reaching, and indeed may already have reached, the stage where our law in regard to these matters is a morass. I would ask the noble and learned Lord the Lord Advocate, when he speaks later, to say whether he has some sympathy with my lament, and whether he has any sympathy with the views expressed by the then Solicitor-General in the last Parliament on this subject, which I have just quoted. If he has that sympathy, is there anything which the Government intend to do by way of legislation to try to bring some sort of cohesion into these concepts in our law?
Reference has been made to Clause 3 of the Bill, and I should like to underline the importance of it. It is certainly, I believe, innovatory. Apart from requiring the convention to be interpreted in accordance with the principles and jurisprudence of a European court, it allows in subsection (3) the reports on the convention by Mr. Jenard and Professor Schlosser to be considered by the European Court in ascertaining their meaning. Those reports go in some detail into the reasons for various provisions in the convention. On this occasion, because of the merit and reliability of the reports, this is no doubt quite acceptable. We must, I would suggest, be watchful, however, if this becomes a precedent, to see that further reports, future reports, which are allowed to have such a direct effect on interpretations which the European Court may give and by which our 1143 courts will be bound, are of similar merit and reliability before they are given this important role.
Clause 31 is causing a little concern at the moment in the legal profession. It abrogates the rule of English law which enables the party who has obtained a foreign judgment in his favour which is entitled to recognition, to bring fresh proceedings here on the original cause of action instead of applying to enforce the foreign judgment. That anxiety will be relieved if we can be told that it is intended to amend the rules of our courts to authorise service out of the jurisdiction in order to enforce a foreign judgment if there are assets of the judgment debtor in this country. May I ask the noble and learned Lord the Lord Advocate if such a change in the rules is intended?
The noble and learned Lord the Lord Chancellor referred to Clause 33, which introduces Schedule 9. That schedule contains amendments to the Foreign Judgments (Reciprocal Enforcement) Act 1933. The main purpose of those amendments is to enable by order Part I of that Act to be applied to judgments of other courts and tribunals as well as judgments of superior courts. Now that the county court jurisdiction, as the noble and learned Lord the Lord Chancellor so clearly pointed out, covers quite substantial cases, it is becoming increasingly unsatisfactory that our 1933 Act, by contrast with the EEC convention, is so limited. May I take it that the Bar Council and the Law Society will be consulted about any proposals to make orders under Schedule 9 to this Bill?
Finally, I would wish to make a point about the commencement provisions of our legislation in general, but particularly in regard to legislation such as this, which is changing our law in a complex and fundamental way, and indeed is introducing entirely new laws. It is vital that practitioners and others should have a proper opportunity of seeing what the new law is and what are its implications before it becomes effective. The commencement provisions in Schedule 12 to this Bill would bring a number of provisions into force on Royal Assent. In my view it is quite wrong in principle—and certainly this is the opinion of my own professional body, the Law Society—that provisions should be brought into force even before copies of the relevant statute are, for practical purposes, available to the public. I accordingly suggest as a personal view that the standard commencement date of all Acts of Parliament, unless there are very special considerations, should be not less than six weeks after the Royal Assent. I certainly suggest it for this Bill. We on this side join in a general welcome to this Bill, although there may be matters of importance—and I have tried to indicate some of them—to which careful attention should be given in the course of its passage through your Lordships' House.
§ 4.28 p.m.
§ Lord Foot
My Lords, may I first of all join with the noble Lord, Lord Mischon, in expressing the thanks of the House to the noble and learned Lord the Lord Chancellor for the remarkable piece of exposition which we had at the beginning of this debate. I was particularly grateful for it because I have been trying to read the Bill over the last day or two. Great stretches of it remain a complete mystery 1144 to me. But as the noble and learned Lord was expounding the matter all became clear to all of us here. The only thing I am worried about is how long I am going to be able to remember it.
I do not remember an occasion when I have been faced with a more daunting task in addressing this House than this afternoon, because of the nature of the Bill. Of course it should have been my noble and learned colleague, Lord Wigoder, speaking from these Benches on an important legal occasion of this kind. I do not know the nature of the engagement which has kept him away—I do not think he has fled the country—but when I undertook to substitute for him as best I could, and when I got down to reading the Bill, I nurtured the unworthy suspicion for a moment that he might perhaps have found some diplomatic excuse for not being here. That of course was a suspicion that I immediately rejected, but I have not been greatly comforted by the discovery a few minutes before I came into the House this evening that my noble and learned colleague, Lord Lloyd of Kilgerran, actually understands two clauses of this Bill and has in fact, as I understand, been in correspondence with the Lord Chancellor about them. Therefore, I stand at every disadvantage.
To comment on the form of the Bill, one can see its real purpose and what it seeks to achieve by reading two short clauses, Clauses 2 and 3. Clause 2 incorporates the conventions and protocol into our domestic law and, as the noble Lord, Lord Mishcon, explained, Clause 3 gives guidance to the courts as to how the conventions and protocol are to be interpreted. Although that is what the Bill is about, so complicated is the matter apparently that to incorporate the conventions and protocol into our domestic law requires a measure of 57 clauses, 13 schedules, all running to 103 pages, priced at £6 net. I cannot believe it will be a best-seller.
When I was looking at those figures I was reminded of something once written by Lord Macaulay and which probably most noble Lords will remember. It was when he was reviewing the three volume history of the life of Lord Burghley by the Reverend Edward Nares, D.D. Speaking of the works he had been asked to read, he wrote:Compared with the labour of reading through these volumes, all other labour, the labour of thieves on the treadmill, of children in factories, of negroes in sugar plantations, is an agreeable recreation. There was, it is said, a criminal in Italy who was suffered to make his choice between Guicciardini and the galleys. He chose the history. But the war of Pisa was too much for him. He changed his mind, and went to the oar".I do not know that that is particularly relevant to what I was saying, but there is a striking contrast between the effective clauses of the Bill and the enormous piece of legislation that is required to carry them into effect.
I, too, wish to express my appreciation to the working party which translated the intention into the reality of the Bill. That must have been a considerable achievement, and I should have thought that the epithet "working for the party" was never more justified than it was on this occasion. As the Lord Chancellor said, this is on any showing a Bill of enormous complication. I would go further and say that the measure gives to the word "complexity" a new dimension.
1145 I wish to speak only about Clause 3, to which the noble and learned Lord and the noble Lord, Lord Mishcon, referred, because a point in it goes rather further than the comments they made on the reports of Mr. Jenard and Professor Schlosser. As Lord Mishcon said, the clause provides that should there be any question as to the meaning or effect of the conventions, it shall,be determined in accordance with the principles laid down by and any relevant decision of the European Court".It goes on in subsection (2) with a provision which I need not read, and then says in subsection (3):Without prejudice to the generality of subsection (1), the following reports"—which are the reports of Mr. Jenard and Professor Schlosser, and there follow the words to which I particularly wish to draw attention:may 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".The mischievious notion went through my mind when I read those words, "What is the Master of the Rolls going to make of that?" I cannot but think that those words are a little unflattering to Mr. Jenard and Professor Schlosser, that their opinions,shall be given such weight as is appropriate in the circumstances".I was reminded of the way in which John Bright finished a letter to one of his critics:I am, sir, with whatever respect may be due to you, yours faithfully".There is an interesting comparision between this Bill and the Bill of Rights which my noble friend Lord Wade successfully steered through this House, as both sought to do the same thing. The Bill of Rights sought to incorporate into our domestic law the European Convention on Human Rights. This Bill seeks to incorporate into our domestic law—and of course I am using a form of shorthand in saying that—these two conventions and the protocol. While, therefore, the object of the two Bills was the same, the methods observed are wholly different. My noble friend Lord Wade produced a two or three clause Bill on one side of a sheet of paper simply stating that from the time of the passage of the Bill into law, the European Convention on Human Rights would be incorporated as part of our domestic law and would supersede anything in our law to the contrary, and he simply attached in the schedule the full text of the convention.
That course would not have been open in this case because we are dealing with something different. But the effect of my noble friend's Bill in that form would have been that all questions of interpretation as to the meaning of the convention and of our existing domestic law would be determined entirely by the judiciary. In this case, to a large extent, I think quite properly, the way in which the Bill is being made to incorporate the conventions in our domestic law is all spelt out in the measure. It is an interesting comprison and I am not at all sure that I should regard it as being safe to pass the Bill of Rights in the form it has passed through this House, leaving so much in a state of uncertainty and leaving so much to the discretion of the judiciary. This is a much more democratic parliamentary procedure on which we are embarked today. We on these 1146 Benches, so far as I know, wish the Bill well, and we shall be particularly enthusiastic about those clauses which we are able to understand.
§ 4.39 p.m.
§ Lord Donaldson of Kingsbridge
My Lords, as a layman—the first and I think only layman to speak—I would not presume to discuss any of the legal points in a Bill which consists of very little else. But from this Bench I feel it is important to say that we share one determination with the Conservative Government—I would not say the only one but one of the few we share—and that is a determination to remain in the Common Market and to do all we can to smooth out the wrinkles which still remain, and the Bill seems to he an effort in that direction, so we welcome it wholeheartedly and in every way.
That allows me to say nothing further about the legal complexities. However, I had a list of questions that I wanted to ask the noble and learned Lord. I am glad to say that, as I hoped would happen, his excellent oration, which, despite the difficulty of what he had to say, kept us all listening with bated breath, has answered a very large number of them, and I am left with only one or two, which I can deal with in a matter of a couple of minutes.
My particular interest in the Bill is as it applies to maintenance orders. This is a matter which concerns the ordinary man and the magistrate. It concerns the ordinary man more than do the civil arguments which on the whole concern larger business and larger entities. What I want to know is this. Am I right in thinking that the passing of the Bill will leave much the same as it is now the position of the wife who is trying to get payment of a maintenance order and is failing, in a case where her husband is in England? If he has gone to Scotland, there will be some improvement in her position. If he has gone to Boulogne, or rather perhaps to Italy—because Boulogne was already covered under a particular agreement with France—she will be considerably better placed, and if he has gone to Timbuktu, her position will be the same. That is point one. If that is wrong, I should like to be told so; I think that it might well be wrong.
Secondly, under the clauses dealing with maintenance there is provision for a £50 fine for non-payment. Will this in other countries lead to what it quite often leads to in this country—namely, imprisonment for failing to pay a fine? I simply do not know enough about the procedure in Paris, Rome, or anywhere else, or about what the Bill means but, if it does that, I should like to know how the position would be dealt with. Would the man be imprisoned for non-payment of a fine in the country where it is imposed? Would he be extradited? What would be the position?
I said that I could make my speech quickly. Those are my only questions, apart from one other, which I think is a very easy one. Am I right in thinking that in a magistrates' court the prescribed officer would always be appointed by the court and would normally he the clerk of the court? I assume that to he the case. I shall study Hansard with care over the weekend—and it will take the weekend—but I think that my other queries have already been answered. Having said that, I sit down.
§ 4.42 p.m.
My Lords, notwithstanding the superb exposition of the Bill by the noble and learned Lord the Lord Chancellor, it is I think plain that this is not a very apt Bill on which to make a Second Reading speech. On the question of jurisdiction, with which I am concerned, the only general principle in the Bill is that there should be uniform rules allocating jurisdiction between the member states. We are committed to that principle by membership of the Community, and I do not seek to challenge it, or even to discuss it.
Once we are past that principle, all the rest really is details of the allocation of that jurisdiction. But notwithstanding the fact that many experts have spent a great deal of time and trouble on this matter, I humbly venture to aver that at least on two points the rules in the Bill do not appear to be wholly satisfactory, in that they seem to deprive the courts of this country of jurisdiction which they presently have and which seemingly they ought to continue to have. I venture to draw attention to these matters now in the hope that they can be put right, and I hope that it will not be said, though I fear it might, that these are really Committee points which should have been left to the Committee stage.
The first point with which I am concerned is the quia timet injunction. In case, which seems probably somewhat unlikely, there are any laymen left in your Lordships' House at this moment listening to the matter, I should perhaps explain that that is an injunction which prevents a wrong before it happens, rather than leaving the party to gain compensation after he has been wronged. That surely is a very useful and desirable remedy—what in medical terms might be called prophylactic medicine, rather than surgery after the event.
At present, as I understand it, anyone who is about to be wronged, whether by a tort or a breach of contract in this country—where the wrong is going to be committed in this country—can seek an injunction preventing that from occurring, as necessarily the defendant will he in the country if the wrong is to be done here. As I understand the Bill, that will not be the case once the Bill is law, and if it remains law in its present form. Under Article 5(3) of the schedule there is jurisdiction in a matter of tort only when the harmful event has occurred; jurisdiction over somebody who is not himself domiciled here. Therefore there is no jurisdiction over a tort before it has occurred if the proposed wrongdoer is himself not domiciled here. Clause 23 of the Bill gives power to give interim relief only when proceedings have already been commenced in the state of the domicile of the proposed wrongdoer.
To try to translate that into concrete terms, I shall seek to give two examples. I hope that they are not open to the objection that there is some other technical solution; even if there was, it would not invalidate my general point. May we start with a lady who has been cohabiting in Italy with an Italian. He has treated her badly, knocked her about, and she therefore has left him and come to this country. He has pursued her here and is threatening to beat her up as soon as he can get hold of her. Under present circumstances she could rush off to a court and get an injunction restraining him from doing that. After the 1148 Bill is passed, as I understand it, if she came to this country, she would be told "He is a person domiciled abroad. No tort has yet been committed here. Either you wait until he has knocked you about the first time, and then come along and we will be able to do something, or you can start proceedings in Italy and then, and only then can you apply to the English courts". I venture to doubt that the lady-would regard either of those alternatives—the alternative of being thoroughly beaten up once before she can have any remedy, or the alternative of trooping off to Italy and starting proceedings there—as satisfactory.
I should like to give another example. Let us suppose that a foreign company is about to build a branch over here and that company plans to invade my property, knocking it down so that it can build its premises here. Again, it would seem that the English court is powerless until either the wrong is done, or unless I go and start proceedings in that foreign country, which would be expensive and complicated for the ordinary person to do. The situation could I think be somewhat improved if Clause 23 were amended to include the position where the plaintiff intended to start proceedings in the foreigh state, so that the English courts did not have to hang about and wait until one had started proceedings abroad but could act promptly. But, even so, that would not seem entirely satisfactory as it would still leave the individual with the testing problem of having to start proceedings abroad, presumably without legal aid, and having to go there, and so on. That is one serious problem, as I see it, arising from the Bill.
The second problem concerns a company domiciled in another Community country but with a branch here. At present any foreign company with a place of business here can be served here and sued here. Further, under Order 11 there is power to serve out of the jurisdiction in respect of any contract made in England. That is all to go, and, instead, there will be jurisdiction only—and I quote from Article 5(5):as regards a dispute arising out of the operations of a branch",in this country. It seems highly doubtful what that means, but what is plain is that it is a great deal narrower than the present situation.
If once again I can resort to example, suppose a businessman in a small way of business orders goods from a large multinational which carries on business all over the United Kingdom. Let us call it Bloggs and Company. Although that man does not know it, the whole European business of Bloggs and Company is in fact carried on by Bloggs (Europe) Société Anonyme, which is domiciled in France. The goods are for delivery somewhere abroad, so the contract will not be performed here; and in fact the order is sent to and dispatched by Bloggs's headquarters in France. Those goods are defective, and he wants to sue. As I see it, he is unable to do so. The dispatch of the defective goods did not in any way arise out of the operations of this branch. Those operations were either in France or where the goods were delivered.
The words of Article 5(5) are a great deal narrower than the Reciprocal Judgments Act, which speaks of an action in respect of a transaction effected through the branch. I have the gravest doubts that Article 5 1149 allows one to sue in this country merely because the contract is made through the branch in this country. If that is so, surely it is very hard on the businessman in my example that he should have to go abroad to sue when he thought that he was dealing with a substantial English branch over here and that his remedy would be here.
Those, I venture to suggest, if I am right in my understanding—and I am very ready to be told that I am not—are two serious problems where the rights of the inhabitants of the United Kingdom are limited and reduced from what they presently are, and from what I would venture to suggest they should continue to be. It may well be that that is somewhat difficult to remedy, if I am right. The alteration of Clause 23 which I have suggested may help a bit; and, of course, one accepts that this country cannot legislate that the convention shall here have a meaning contrary to that declared by the European Court. But it could presumably enact that until the European Court determines otherwise these words should have a somewhat enlarged meaning, and therefore perhaps one could say that a tort should in relation to quia timet proceedings be deemed to have occurred in a place where it was likely to have occurred but for the injunction, or something of that kind.
Alternatively, perhaps the Government could in due course seek to negotiate amendments to the convention to deal with these problems. I recognise, of course, that there have been lengthy negotiations and a great deal of work put in, but I hope that does not mean that when, with a sigh of relief, somebody finally gets this Bill on to the statute hook, everybody is going to sit back, because whether or not I am right in these particular problems there are going to be problems, and one hopes there will he a continuing process of seeking to improve the convention when those problems arise.
My Lords, of course I do not seek today an instant solution of the problems I have raised, but I ask the Government to recognise that there are these problems and to say that they will give attention to them and seek to solve them if I am right that they exist and are not dealt with by the Bill.
§ 4.54 p.m.
§ The Lord Advocate (Lord Mackay of Clashfern)
My Lords, I would first of all propose to say just a little more about the considerations which 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, and then to attempt to answer the questions that have been raised by the noble Lords who have taken part in this debate. Before I turn to do that, I should like to say how grateful we are for the welcome that your Lordships have given to the Bill; and perhaps I should particularly congratulate the noble Lord, Lord Foot, on succeeding in introducing some merriment into the proceedings.
The Scottish proposals in this Bill are following the recommendations of the Scottish Committee on Jurisdiction and Enforcement, to which my noble and learned friend the Lord Chancellor has already referred, and I should like to take this opportunity of joining with him in thanking Lord Maxwell and his colleagues 1150 on that committee for providing such expert and comprehensive guidance in matters of very considerable complexity. I should also like to take this opportunity to join with my noble and learned friend and with Lord Mishcon in thanking all others who have had a part in bringing us so far.
As the report of Lord Maxwell's committee points out, the convention rules of jurisdiction, and the rules derived from the convention which it is intended should in future 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 parts 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.
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 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, it would, if the convention rules were not adopted generally, 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 has 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 which 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 against a person domiciled in another convention country only 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 against a party domiciled in another part of the United Kingdom only 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 within Scotland.
With certain exceptions, this body of new rules will apply to all civil proceedings before the Scottish courts, and not merely to those which would fall within the scope of the convention. Perhaps the most important of the exceptions is that, as my noble and learned friend 1151 said about the convention, 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, since the rules of jursidiction 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.
The new rules therefore deal with the circumstances in which the Scottish courts are to have jurisdiction in the central core of civil litigation. We hope that it will be useful to practitioners to he able to deal on the same basis not only with domestic cases—that is to say, cases arising within Scotland—and those having an international element, but also 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 on this aspect, I should like to emphasise that, although the form of our jurisdictional rules is being changed considerably, as I said, their substance w ill 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(14) of Schedule 7, which introduces additional grounds of jurisdiction against co-defenders and third parties. This will provided a useful extension of the jurisdiction of the Scottish courts to meet modern commercial conditions.
My Lords, having said that about the particular aspect of the Bill which affects Scotland especially, I should like to turn to some matters which have been raised in the course of this debate. The first matter to which the noble Lord, Lord Mishcon, directed attention was the definition here proposed for "domicile". The definition here proposed is for the purpose of founding jurisdiction. It must be. I suggest, reasonably clear that the considerations which provide a proper basis for jurisdiction are different from the considerations which would provide a proper basis for levying tax, for instance. Accordingly, it is, I think, right that domicile for this purpose should be different from domicile for that purpose. That is merely an example. The noble Lord referred to others, although I think the special connection clauses in the British Nationality Act to which he referred were 1152 somewhat affected in the course of the Bill's passage through your Lordships' House, but there are other areas where domicile is relevant. We considered whether it would be right to give the expression "domicile" in this Bill a special prefix such as "forensic domicile" which was a proposal put forward by the committee under the noble and learned Lord, Lord Kilbrandon, to which reference has been made. But on considering the matter we see no sufficient advantage and, in due course, obviously we should be glad to know what the House feels about this matter.
§ Lord Mishcon
My Lords, I am sure that the noble and learned Lord will forgive me when I say that I made it clear that there was a basic difference between the concept of domicile in taxation, in British nationality law, any other law and this law. But I invited the noble and learned Lord to consider whether the suggestion made by the Solicitor-General in the last Administration when this was being discussed, that there should be some legislation to bring together the definitions or to set out the various definitions of domicile, residence and ordinary residence, would not simplify and clarify our law. Has the noble and learned Lord considered that and, if not, will he do so?
§ Lord Mackay of Clashfern
My Lords, one can see attractions in embarking on an exercise of that kind. One can also see difficulties in it. The particular considerations or factors which are relevant for the different subject matters are best dealt with probably in the context of the subject matters. Therefore, in the taxation statutes you would expect to find one treatment and, in nationality, another and so on. Perhaps it should go without saying that we shall consider carefully all that has fallen from noble Lords; and that what the noble Lord, Lord Mishcon, has said in this connection will be no exception.
I was going on to deal with a special point made in relation to Clause 31 and to answer his question. Proposals for an amendment to Order 11 in the sense to which he referred are under consideration. As far as consultation is concerned—and he referred particularly to Clause 33—recent practice has been, and I am sure noble Lords would approve of it, that consultation is undertaken with the legal profession about arrangements under the 1933 Act, and any matters requiring to be dealt with under this Bill would receive the same kind of attention.
I now turn to the questions asked by the noble Lord, Lord Donaldson of Kingsbridge. I think I can accept as generally correct the description that he gave at the beginning of his question about the general effect of the provisions of this Bill. As far as the second question is concerned, the £50 fine, the payer will be liable under Clause 5(6) if he fails to notify a change in his address. This provision is in the same terms as the corresponding provision in the present legislation. The situation, therefore, is that as far as our law is concerned, the situation is not altered in this respect by these provisions. It is not within the function of any law that we would lay down what are the appropriate provisions for enforcement of such matters under the law of other states. This Bill could not affect that.
§ Lord Donaldson of Kingsbridge
My Lords, surely the £50 fine could come into operation if he moved from Paris to Boulogne; or could it not? Reading the Bill as a layman, I thought that it did.
§ Lord Mackay of Clashfern
My Lords, so far as our criminal law is concerned, if he failed to notify a change of address the £50 would operate; but that does not mean necessarily that it would be enforceable against him because it is a matter of criminal law, and certainly would not be enforceable against him under the provisions of this Bill in France. The last question I was asked was about the prescribed officer. He would be the clerk of the court.
I now turn to matters raised by the noble Viscount, Lord Bledisloe. With respect, he has raised questions of considerable difficulty in relation to the proper construction of the convention itself. Obviously these matters require consideration. I think he recognised that at least the primary questions he raised were about the construction of the convention. He went on to suggest that it might be wise to make provisions in this Bill to regulate the situation here until the matter was considered by the court in Luxembourg. It may be open to question whether the ultimate result would best be served in relation to a decision of the court at Luxembourg by beginning on the assumption that we think that the convention does not necessarily achieve what the noble Viscount would like it to achieve. In that situation there is at least a question whether the course which he was mentioning towards the end of his speech would necessarily be the best one for achieving the result which he had in mind. However, these are questions of very considerable importance and we will certainly consider very carefully what he has said.
The Bill, I hope, is one which will be of very considerable use not only to the legal practitioners but also to the commercial community in our country, and I therefore am very glad to join with my noble and learned friend the Lord Chancellor in commending it to your Lordships.
My Lords, before the noble and learned Lord sits down, may I remind him of the last point which I made which I thought had some relevance and importance, especially to this Bill; namely, the commencing date on which the provisions of the Bill come into effect? I reminded your Lordships that under Schedule 12 to this Bill a number of provisions are brought into force on Royal Assent. Bearing in mind that it cannot be very urgent that the Bill be brought into effect within a matter of days of the Royal Assent, would he give consideration to the general point I mentioned as well as the specific point in relation to this Bill?
§ Lord Mackay of Clashfern
My Lords, certainly. I intended to cover that particular matter (because I had nothing to say about it) by my general observation that all that the noble Lord said would be very carefully considered.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.