HL Deb 10 May 1985 vol 463 cc863-5

11.36 a.m.

Lord Lyell rose to move, That the draft order laid before the House on 2nd April be approved.

The noble Lord said: My Lords, the purpose of this most technical order is to implement in relation to Northern Ireland, the Law Commission's Report No. 114 on the Classification of Limitation in Private International Law. The Law Commission's report was made in relation to a rule of Private International Law as applied in England and Wales, and to that extent was implemented by the Foreign Limitation Periods Act 1984. However the rule which applies in Northern Ireland is the same as the rule was in England and Wales prior to the 1984 Act. The order therefore ensures that the private international law of Northern Ireland, which is derived from the common law, remains the same as that of England and Wales. It corresponds entirely to the English 1984 Act.

The background to the Law Commission report, and to the order, is that all legal systems have limitation periods for the bringing of civil actions, which provide for the extinction or barring of stale claims. Where therefore foreign law falls to be applied in a court in Northern Ireland under the established rules of private international law, a foreign limitation period may well be in issue. In essence, the application of the foreign limitation period or the Northern Ireland limitation period depends upon whether the Northern Ireland court regards the limitation in question as a matter of substance or merely as a matter of procedure.

The Law Commission found the present law wanting. It is based upon a highly technical and perhaps rather artificial distinction; it has created a number of anomalies; and it is inconsistent with both the private international law of many other countries and with the European Community Convention on the Law Applicable to Contractual Obligations. The essence of the Law Commission's recommendation, implemented in Article 3 of the order, is that where under the established rules of private international law the substantive foreign law applies in a particular case, then the rule of that same foreign law as to limitation should also be applied rather than the Northern Ireland law of limitation.

Article 4 of the order contains three exceptions to the rule, the most important of which relates to public policy. Where in a particular case the court determines that the application of the limitation period prescribed under the foreign law would be contrary to public policy, it may refrain from applying the foreign period. I think that this point was covered in some detail when your Lordships were dealing with the English Act last year. The points made by the noble Lord, Lord Mishcon, were very much appreciated and I hope that they have been incorporated into the order that we have before us this morning.

The order has been supported by the Northern Ireland Assembly, which has the benefit of submissions from the Law Society of Northern Ireland and from the Northern Ireland Chamber of Commerce and Industry. For all those reasons, I commend the order to your Lordships. I beg to move that this order be now approved.

Moved, That the draft order laid before the House on 2nd April be approved.—(Lord Lyell.)

Lord Prys-Davies

My Lords, nearly 50 years ago Professor Cheshire, an eminent academic and authority on private international law, claimed that this branch of law had (and I use his words): been only lightly touched by the paralysing hand of the parliamentary draftsmen". It would not be so easy to sustain that claim today, and indeed it is generally considered that the Foreign Limitation Periods Act 1984, viewed as a whole, is a significant improvement on the previous law; and under this order the provisions of the 1984 Act are extended to Northern Ireland.

As the Minister explained, the order was widely circulated among outside bodies in Northern Ireland, and apart from some doubts which were expressed about Article 4(2) its provisions have been very well received. The Minister has reminded us that my noble friend Lord Mishcon was the originator of Article 4(2) and that article was accepted by the Government after much careful thought. I am also conscious that some doubt has been expressed about Article 4(1), but one is fairly confident that with the passage of time those doubts will be statute barred.

It may be surprising to some people that the provisions of this order could not have been delivered as part of the Foreign Limitation Periods Act 1984 itself and that criticism was voiced in the other House. As it was intended that the provisions of the Act should apply to Northern Ireland, why was this not provided for in the 1984 Act and why was it necessary to wait 12 months before its provisions could be extended to Northern Ireland by means of this vehicle? Those criticisms have been voiced and levelled at other quarters.

I should like to take this opportunity of recognising the contribution of the Northern Ireland Assembly to the process of legislating for Northern Ireland under direct rule. For example, it arranged for this order to be widely circulated among interested bodies and invited oral evidence from eight organisations. Three of these responded with written evidence and a fourth responded with oral evidence. The Assembly devoted at least two half-days to the consideration of the order's terms and it produced a report. All that compares favourably with the one hour devoted by the two Houses of Parliament to a discussion of the order. I am therefore content to be guided by the Northern Ireland Assembly, and I welcome the order.

Lord Lyell

My Lords, we are grateful, once again, to the noble Lord, Lord Prys-Davies, and indeed to the noble Lord, Lord McNair, the right reverend Prelate and your Lordships who have studied this order which is before us. The noble Lord, Lord Prys-Davies, paid some particularly nice compliments to the work done by the Assembly and I am sure that his kind words will be read with considerable approval by the members of the Assembly and indeed by the members of the committee which considered this order. We are always grateful for appreciation from your Lordships' House and from elsewhwere, and I shall certainly see that the noble Lord's remarks are brought to the attention of those members of the Assembly who contributed to the discussions there, and, above all, to the Assembly Committee.

The noble Lord, Lord Prys-Davies, mentioned the length of time given by the Assembly to the consideration of the order. It was considered in committee where, as he pointed out, both oral and written evidence was produced. I think that the Assembly spent three hours and a bit discussing the subject. That underlines the important role of the Assembly in scrutinising legislation which is proposed and which will affect Northern Ireland. We are particularly grateful—and I am sure that the Assembly will be even more grateful—for the kind compliments which have been paid by the noble Lord, Lord Prys-Davies. It seems to me that your Lordships are content that this somewhat technical order should proceed, and I am very grateful to your Lordships for the reception which you have accorded to it.

On Question, Motion agreed to.