§ 7.28 p.m.
§ The Lord Advocate (Lord Fraser of Carmyllie) rose to move, that the draft order laid before the House on 23rd May be approved [20th Report from the Joint Committee].
§ The noble and learned Lord said: My Lords, the purpose of this Order in Council is to enable the United Kingdom to ratify the convention by which Greece acceded to the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, and to the 1971 protocol to that convention.
§ The Brussels Convention was drawn up between the six original member states of the European Community under Article 220 of the treaty, which provides that member states shall enter into negotiations with each other with a view to securing for the benefit of their nationals, inter alia, the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals. The convention established a scheme to determine the international jurisdiction of the courts of the member states, and to facilitate recognition and introduce an expeditious procedure for securing the enforcement of judgments within the Community.
§ The 1971 Protocol confers jurisdiction on the Court of Justice of the European Community to interpret that convention.
§ On becoming a member of the Community each state undertakes to accede to the Brussels Convention and to the Protocol: this is 79 acknowledged in Article 63 of the Convention and in Article 9 of the Protocol respectively. The United Kingdom, Denmark and Ireland acceded by a convention signed on the 9th October 1978, and the Brussels Convention is now in force in each of those States—in the United Kingdom since the 1st January 1987 by virtue of the Civil Jurisdiction and Judgments Act 1982. In turn, on joining the Community, Greece acceded by a convention signed on the 25th October 1982. The convention on the accession of Spain and Portugal, the two final states, was signed on 26th of last month.
Section 14 of the Civil Jurisdiction and Judgments Act provides that Her Majesty may by Order in Council make such modifications of the Act as Her Majesty considers appropriate in consequence of any revision to the Brussels Convention or to the Protocol. Such revisions include:
in particular any revision connected with the accession to the 1968 Convention of one or more further states".
§ Although the draft order before your Lordships today runs to some 20 pages or more, it may be surprising to say that in essence it is very simple. It makes only those changes to the 1982 Act which are directly consequent upon Greek accession to the Brussels Convention: it makes no changes of substance.
§ Articles 3 to 6 effect the necessary amendments to the definitions contained in Section 1 of the Act to include the Greek accession convention, referred to as "the 1982 Accession Convention"; and to include Greece within the definition of a "contracting state".
Article 8 amends Section 3 of the Act to permit United Kingdom courts, in ascertaining the meaning or effect of any provision of the Brussels Convention or the accession conventions, to consider the report on the Greek accession convention drawn up by two eminent Greek academic lawyers. I should say that Section 3 already permits reference to the corresponding reports on the Brussels Convention and on the earlier accession convention—that is, the 1978 convention under which the United Kingdom acceded, and this Greek report completes the picture. These reports are to be given by the courts:
such weight as is appropriate in the circumstances".
§ The bulk of the order comprises the schedules and these are explained in Article 7. They replace Schedules 1 and 2 to the 1982 Act which contained, respectively, the text of the Brussels Convention and of the 1971 Protocol, each as amended by the 1978 accession convention. The new texts reflect the further amendments occasioned by Greek accession. It is most important that practitioners, academics and others should have set out in a convenient form, and in one place, the current texts.
§ Schedule 3 represents an additional schedule, Schedule 3A to the 1982 Act, setting out what I might call the operational elements of the Greek accession convention: the transitional provisions and the final provisions, the procedure for entry into force and so on.
§ The order is entirely technical in its scope, extending the territorial application of a most 80 valuable convention. The 12 states have also undertaken to ratify the Spanish and Portuguese accession convention before the end of 1992. Once that is done we shall have a common market in judgments throughout the Community. This order represents the penultimate stage in that long process and I commend it to your Lordships.
§ Moved, That the draft order laid before the House on 23rd May be approved. [20th Report from the Joint Committed].—(Lord Fraser of Carmyllie).
§ Lord Elwyn-Jones
My Lords, the House will be grateful to the noble and learned Lord the Lord Advocate for explaining this order. As he suggested, on the face of it the order looks pretty formidable. It runs to no fewer than 22 pages. That is explained by the convenience of putting together in one instrument a number of related conventions. To that I have no objection and practitioners and those who have to apply these measures will welcome it.
The convention was drawn up originally between the six member states of the European Community with a view to simplifying the formalities governing the recriprocal recognition and enforcement of judgments of courts or tribunals as between parties to the convention. As the noble and learned Lord said, the effect of this order is merely to extend the territorial application of the Brussels Convention to Greece vis-à-vis the United Kingdom.
However, the House may like to know how often and how effectively the Brussels Convention has operated in practice. Has recourse been had to it from parties in the United Kingdom and, if so, how frequently? Perhaps I should have given notice that I proposed to ask these questions. However, I do not expect any detailed reply. In general, how effective has the machinery been?
Experience in the application of these conventions has shown that long delay often bedevils their application in practice and it would be helpful if the noble and learned Lord were to give some indication of the experience of those who have sought to make use of this machinery in practice to secure enforcement of judgments in their favour. The system of enforcing judgments in this country is not too bad but there is always a struggle to keep it up to date and effective. It would be interesting for the House, and indeed perhaps important, to know how this convention is working out in practice and how effective is the avoidance of delay in this field.
§ Lord Meston
My Lords, we on these Benches also would like to thank the noble and learned Lord for his explanation of the draft order. In fact, as I understand it, it simply proposes an amendment to the 1982 Act, long awaited by those who want to pursue defaulting Greek debtors. I do not wish to trouble the noble and learned Lord to give us even edited highlights of the report of the Greek professors which is referred to in paragraph 8 of the order or even to pronounce the names of its authors. It is to be hoped that this will be a further aid to the interpretation of the statute in a rather remarkable if not unique form of drafting.
I want to make only two points about the working of the 1982 Act. First, it seemed to take a very long 81 time to come into operation. The main, underlying convention was signed in 1968. We passed our enactment in 1982. That did not come into force until 1987. Even if the noble and learned Lord is not able to answer the question of the noble and learned Lord, Lord Elwyn-Jones, I hope that the Government have in place some mechanism for monitoring the working and the weaknesses, if any, of the 1982 Act so that there can be a continuous consideration of how it works in practice.
Secondly, one can make the general point that the effectiveness of any such international provision depends on the width of its application and the reciprocity and uniformity of its application. I should hope that consideration would be given to the enlargement of the protective and provisional powers of the court by an order under Section 25(3) of the Act so that it is possible to have some form of protective relief not just where litigation is proposed in a contracting state but also where it is proposed or in fact taking place in a non-contracting state.
Subject to those points, this is obviously a welcome extension of the 1982 Act.
§ Lord Fraser of Carmyllie
My Lords, I am grateful to the noble and learned Lord for the welcome that he gave to this order and also to the noble Lord, Lord Meston, for the approval that he has signified. I am particularly grateful to him for not requiring me to pronounce the names of the two Greek professors who now find themselves by name within our legislation.
As I indicated in opening, the Act has been in force in the United Kingdom only since 1st January 1987. I regret that I am not in a position to give either the noble and learned Lord or the noble Lord who have participated in this brief debate any precise figures on the number of occasions on which the convention has been used. In a Scottish context, I am aware that it has been used only once in circumstances that were rather complicated, and which have not yet reached any law reports. It may well be that there are a significant number of comparable occasions.
§ Lord Fraser of Carmyllie
My Lords, how much it is used, I do not know. Certainly, it is a complicated matter. Clearly we shall wish to see that these elaborate provisions that have been introduced are used effectively for those people who have cause from time to time to secure enforcement of their judgments within the European Community.
§ On Question, Motion agreed to.