§ 11.46 a.m.
§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, I beg to move that this Bill be now read a second time.
The purpose of the Bill is to make it easier to enforce civil court judgments throughout most of Europe. The Bill will enable the United Kingdom to ratify the Lugano Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, which was opened for signature on 16th September 1988 and which the United Kingdom signed on 18th September 1989. The parties to the convention are the member states of the European 922 Community and the member states of the European Free Trade Association: Austria, Finland, Iceland, Norway, Sweden and Switzerland.
The convention is closely modelled on the 1968 Brussels Convention, made between the members of the European Community alone, to which we gave effect by the Civil Jurisdiction and Judgments Act 1982. Although there are differences between the two conventions, they are remarkably few.
When my noble and learned friend Lord Hailsham of Saint Marylebone introduced the Civil Jurisdiction and Judgments Bill in 1981 as Lord Chancellor, he referred to the increased commercial and social mobility which had followed the creation of the Common Market. He went on to say:This phenomenon is not likely to recede, whether as between the member states or in any other context.This new convention bears out that belief. A necessary complement of this increased commercial and social mobility is increased legal co-operation, particularly in what has been described as the free movement of judgments.
The effective enforcement of judgments is an essential part of the legal process. It is most undesirable for a person to embark on litigation and to be successful, only to discover that the other party has no assets in the country where the litigation is taking place but assets in others. International agreements can assist successful parties by ensuring that a judgment obtained in one country is readily enforceable in another. In the past, such agreements have tended to be bilateral. Now, with the Brussels and Lugano conventions, there is a virtually uniform system of civil jurisdiction and enforcement of judgments throughout Western Europe.
Before I explain the provisions of the Bill I should say something about its form. Rather than having a lengthy, separate Bill which in effect repeated most of the provisions of the Civil Jurisdiction and Judgments Act 1982, we have operated by way of amendment to the 1982 Act, so that the two conventions, which are so similar, may be found in the same place.
Clause 1 adds a new section, Section 3A, to the 1982 Act to give the Lugano Convention the force of law in the United Kingdom. This is the key provision in the Bill, which will have the effect of submitting questions about jurisdiction and enforcement in cases which have a connection with an EFTA member state to be determined in accordance with the convention. The Bill does not affect purely domestic cases or cases where the link is with a member state of the European Community. Your Lordships have commented on past occasions that it is helpful to have the whole text of the relevant convention set out in a schedule, and we have done that here.
The new Section 3B of the 1982 Act highlights one of the principal differences between the Lugano Convention and the Brussels Convention. EFTA member states were unable to agree that the European Court of Justice, which is a Community organ, should have jurisdiction over judgments given by, or to he enforced in, their countries. They agreed, however, 923 that it would be desirable for the Lugano Convention to be interpreted in as uniform a way as possible. The contracting parties therefore drew up Protocol 2 to the convention, which requires courts to have regard to principles laid down by the courts of other contracting states when interpreting the convention. To make this possible, it also sets up a system whereby information on judgments delivered under both conventions is to be transmitted between contracting states.
As with the Brussels Convention and subsequent accession conventions and, as your Lordships may remember from earlier this year, the Rome Convention on contractual obligations, a commentary on the Lugano Convention was produced by two eminent lawyers, one from a European Community member state and one from an EFTA member state. Following our previous legislative practice, the new Clause 3B provides that the courts may consider the report when construing the provisions of the convention. This is expressed to be without prejudice to the practice of the courts in considering other matters such as the works of academics. I should add that, although the report was written by two individuals, it was considered by all the governments of the contracting states and thererfore has a semi-official status.
Clause 1 also inserts a new Section 9(1A) in the 1982 Act to deal with the question whether a particular case is to be governed by the Lugano Convention or by the Brussels Convention. This is determined by Article 54B of the Lugano Convention and, because of its importance, I believe that it is appropriate for attention to be drawn to this provision in the body of the Bill.
Because the Bill operates by way of adding to the 1982 Act the Lugano Convention and references to it, various terms now used in the Act require modification. References to the conventions are accordingly to be replaced by references to the Brussels Conventions or the Lugano Conventions and there are to be references to Brussels contracting states and Lugano contracting states. The task of incorporating provisions for the Lugano Convention in the 1982 Act is greatly simplified by the fact that its substantive articles have the same numbers as do those of the Brussels Convention—a small matter, but an important one.
Clause 3 of the Bill introduces Schedule 2, which makes other necessary amendments to the 1982 Act. For the most part these consist of adding references to the Lugano Convention.
It was agreed during the negotiations of the Lugano Convention that there should be an open system of territorial extent so that each contracting state would be left free to choose to which, if any, of its territories the convention should extend. The convention therefore contains no provision as to territorial extent and the same now applies to the Brussels Convention, following the amendments that were made to it by the Spanish and Portuguese Accession Convention. The 924 provisions as to territorial extent in the 1982 Act will continue to apply when it has been amended by this Bill.
I turn now to the convention itself. I shall indicate those places at which it diverges from the Brussels Convention, although I hope that it will not be necessary to describe these in any great detail. The convention falls into two main parts: jurisdiction, which is dealt with in Articles 2 to 24, and recognition and enforcement, which are dealt with in Articles 25 to 49. The application of the convention to civil and commercial matters means that it will touch on a wide range of subjects, including commercial cases, maintenance, insurance and consumer contracts, negligence, land and trusts. Some areas, which tend to be the subject of special legislation, are excluded. Among these are divorce, insolvency, taxation and arbitration.
The basis of a court's jurisdiction is that a defendant is to be sued in the courts of the contracting state in which he is domiciled. For the purposes of our law an individual is domiciled here if he is resident in the United Kingdom and the nature and circumstances of his residence indicate that he has a substantial connection with the United Kingdom.
Jurisdiction is also given to other courts in some cases. In matters relating to tort and delict, for example, the courts for the place where the harmful event occurred have jurisdiction, as well as those of the defendant's domicile; and in matters relating to a contract the courts for the place where the contract is to be performed also have jurisdiction.
The Lugano Convention and the Brussels Convention have slightly different provisions for contracts of employment. There are special rules in both for insurance contracts and consumer contracts, designed to protect the insured party and the consumer, whose bargaining position will usually be weaker. Exclusive jurisdiction, regardless of the parties' domicile, is given to courts in some cases. Rights in immovable property, for example, will usually be determined by the courts of the place where the property is situated. There is an exception to this in both conventions, although they differ in detail, in the case of holiday homes when the landlord and the tenant do not reside in the same state as the holiday home.
The convention permits the parties themselves, on certain conditions, to agree that a particular court shall have jurisdiction. This will be of special benefit to us since it will mean that our commercial court, which enjoys a high reputation, will still be able to hear cases where the parties wish it to have jurisdiction although neither may be domiciled here.
The objective of the provisions on enforcement is to make the enforcement of civil judgments as nearly automatic as possible between one contracting state and another. The scope for a court to refuse to enforce a judgment is therefore very limited. In the past the enforcing court was obliged to satisfy itself that jurisdiction had been properly assumed by the court which gave the judgment. Now, because the 925 convention has laid down the rules of jurisdiction which I have described, only in exceptional cases may the court which is being asked to enforce a judgment refuse to do so on the grounds that the issuing court had no jurisdiction to hear the case. Nor may judgments be reviewed as to their substance.
The convention provides for appeals against a decision authorising enforcement or against a refusal for enforcement. I should add that the Lugano and Brussels conventions go wider than that of our traditional system for the enforcement of judgments, which is limited to lump-sum judgments. Under the conventions it is also possible to enforce judgments for an amount which has not yet been fixed, continuing payments and both final and interlocutory injunctions.
Of the remaining articles, there are three to which I should refer. As I mentioned earlier, Article 54B governs the relationship between the Lugano Convention and the Brussels Convention. The Brussels Convention will continue to apply in relations between EC member states; for example, where a person domiciled in one EC member state is sued in another or where the enforcement of a judgment given in one EC state is sought in another EC state. The Lugano Convention will be applied, in matters of jurisdiction, where the defendant is domiciled in an EFTA state, where such a state has exclusive jurisdiction under the convention and where the parties have agreed to confer jurisdiction on the courts of such a state. It will also be applied to resolve any question where concurrent or related proceedings are begun in an EC state and in an EFTA state. Thirdly, in matters of recognition and enforcement, it will be applied where either the state of origin or the state addressed is an EFTA state.
The entry into force of the Lugano Convention is dealt with in Article 61, which requires the ratification of one EC member state and one EFTA state. The convention will come into force on the first day of the third month following these two ratifications. Thereafter it will come into force, for a particular country, three months after it has ratified. The fact that only two ratifications are needed is a measure of the importance accorded to the convention by the contracting states.
Although the original parties to the convention are the member states of the European Community and of the European Free Trade Association, Article 62 enables other countries to accede to the convention provided that all the members of the EC and EFTA agree. The possibility of extending it is, to my mind, another welcome feature of the convention. It may be, for example, that countries in Eastern Europe or the Commonwealth will be attracted by it.
I believe the Lugano Convention to be a very considerable achievement, which builds on the success of the Brussels Convention. Links between the European Community and the European Free Trade Association are becoming stronger and, as your Lordships will know, all the member states hope to create a European economic area by the end of 1992. The United Kingdom has substantial trading 926 relationships with Sweden and Switzerland which will benefit from the convention. I should add that Sweden has been less willing than most countries to enforce foreign judgments and the Swedish participation in the convention is therefore particularly to be welcomed.
A draft of the Lugano Convention was circulated to interested parties in the United Kingdom before it was adopted by the contracting states and was received most warmly. Subsequent consultations have also produced a positive response. I believe that the convention will strengthen legal and economic co-operation throughout most of Europe. It is an indication of our belief in the importance of the convention that we have brought forward this legislation so promptly. I commend the Bill to the House.
Moved, That the Bill be now read a second time. —(The Lord Chancellor.)
§ 12 noon
§ Lord Mishcon
My Lords, when outlining the provisions of this important and extremely useful Bill the noble and learned Lord referred to the Second Reading of a similar Bill which became the Civil Jurisdiction and Judgments Act 1982 and is related to the Brussels Convention. It has been interesting for me to recall that the then Lord Chancellor, the noble and learned Lord, Lord Hailsham, opened the debate on Second Reading. I am sorry that he is not in his seat. I had the privilege of following him, and the noble and learned Lord the Lord Chancellor, then the Lord Advocate, wound up the debate.
I mention that fact because the noble and learned Lord, Lord Hailsham, said: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.—[Official Report, 3/12/81; col. 1126.]The Bill that has now been introduced by the noble and learned Lord the Lord Chancellor did not need that introduction. In a succinct speech he explained the merits of the Bill. Although I noted that interest was not throbbing within the Chamber, it was obvious that every Member of your Lordships' House listened most attentively.
I agree entirely with the noble and learned Lord that it is useful to follow the practice of attaching the convention to the Bill as a schedule. That has been done in this case. It is most useful for practitioners and for laymen in the commercial world who wish to know precisely what the Bill does in relation to the convention and what the convention does in relation to the Bill. The Lugano Convention has not yet been ratified by any state because there has been no time to do so. Can the noble and learned Lord indicate whether any difficulties are foreseen in regard to ratification? He mentioned difficulties being experienced by the EFTA countries in accepting the jurisdiction of the European Court. Are there any further difficulties about which we should be informed before ratification takes place? One appreciates that the number of member states needed to ratify the 927 convention is two. Can the noble and learned Lord tell the House when the United Kingdom intends to ratify the convention?
The noble and learned Lord referred to Clause 1 3B(2) which states:Without prejudice to any practice of the courts as to the matters"—and I emphasise the word "matters",which may be considered apart from this section, the report on the Lugano Convention",written by the two learned lawyers who are mentioned in the Bill,may be considered in ascertaining the meaning or effect in any provision of the Convention and shall be given such weight as is appropriate in the circumstances".I am a little puzzled. I know that in European legislation it is not unusual to see reference to a report to which attention can be paid but it is unusual to see such a reference in our legislation. The mystery is whether it is necessary statutorily to include that reference in the Bill because, if not, the report cannot be considered. If so, does it mean that any subsequent report—and it may be an amplification of this report made by others—cannot be considered because it is not mentioned in the statute?
Can the noble and learned Lord clarify a matter to which he obliquely referred? In Section 3(3) of the Civil Jurisdiction and Judgments Act 1982 there appears a similar provision referring to those reports. However, the introductory words are:Without prejudice to the generality of subsection (1)".Subsection (1) refers to the relevant decisions of the European Court. We have heard a good reason why that provision is not in this Bill; namely, the entrance of the EFTA countries into this issue. However, I wonder about the use of the word "matters" in the clause to which the noble and learned Lord and I have referred. Clause 1 3B(2) states:Without prejudice to any practice of the courts as to the matters which may be considered apart from this section …The noble and learned Lord indicated that the provision means that our courts can consider any other worthy academic works which they see fit to consider. Does that include our precedents? Does it include our decided cases? Does it include the introduction of common law principles which might be applicable? Does the word "matters" cover the issues indicated by the noble and learned Lord? Is he sure that the word "matters" covers academic works other than the report referred to in the Bill?
I appreciate the attempt that has been made in the convention and in the Bill to achieve uniformity. When I first looked at the Bill I wondered whether sufficient arrangements had been made to ensure that administrative uniformity had been achieved. If so, I had intended to ask the noble and learned Lord about those arrangements. Therefore, I was delighted to read Article 2 of Protocol No. 2 at page 31 of the Bill. I shall quote the article because I regard it as being most useful. It states: 928The Contracting Parties agree to set up a system of exchange of information concerning judgments delivered pursuant to this Convention as well as relevant judgments under the Brussels Convention. This system shall comprise:Very usefully, it goes on to say:
- — transmission to a central body by the competent authorities of judgments delivered by courts of last instance and the Court of Justice of the European Communities as well as judgments of particular importance which have become final and have been delivered pursuant to this Convention or the Brussels Convention,
- —classification of these judgments by the central body including, as far as necessary, the drawing-up and publication of translations and abstracts,
- —communication by the central body of the relevant documents to the competent national authorities of all signatories and acceding States to the Convention and to the Commission of the European Communities".The central body is the Registrar of the Court of Justice of the European Communities".That is a very tidy administrative arrangement for seeing that the member states which are parties to the convention and which will be governed by this Bill will be able to have before them a sensible administrative machinery for uniformity.
It would be useful to the legal profession in particular but other professions too to know when it is likely that the noble and learned Lord the Lord Chancellor and the noble and learned Lord the Lord Advocate will be making the appropriate order to bring that into effect. Presumably it will be done under Clause 5(3) of this Bill. Obviously one does not expect an accurate date to be indicated. However, it would be helpful to have a timescale with an estimate attached.
My last observation has a contemporary note about it. From these Benches, we wish the noble and learned Lord a very merry Christmas and a well deserved rest.
§ 12.11 p.m.
§ Lord Wilberforce
My Lords, it is always a pleasure to follow the noble Lord, Lord Mishcon, in commenting on this sort of Bill. He always does so with great skill and grace. I follow him only because the Bill is of some importance and I felt that it was only due to the noble and learned Lord who explained it to us with such clarity to make a few observations upon it from these Benches.
I entirely agree that once we have brought into effect the Brussels Convention of 1968, it is now a logical step to extend the process to the EFTA countries through the medium of this new Lugano Convention. I agree with the noble and learned Lord that the right way to do that has certainly been to use the 1982 Act and to introduce this by way of amendment.
There is no doubt that certain benefits are to be gained from the process of harmonisation of laws when we are in the Community of 12 states. It is an advantage to have whatever uniformity can be achieved. The process of working towards that is no doubt good. The point I wish to make this morning is that that process, although beneficial, carries with it a certain price to be paid. I draw attention to that not in a carping spirit in relation to the Bill but in view of the 929 future, because no doubt the process will be carried further and we shall continue to have Bills of this kind, or similar to it, presented to us for approval.
Taking the convention in its two parts, I suggest that the more important part is not that which relates to the enforcement of judgments, although that is very important, but Title II, which deals with jurisdiction. It introduces a number of rules displacing the English and Scottish rules which exist in our respective common laws. That is an important section of our law. It is very involved and often comes before the courts. It relates to the question of when a court may take jurisdiction over a case, particularly when more than one country is involved. When multi-national corporations and international contracts are involved, that is frequently the situation. An action can be brought either in England, France or Germany and a court must decide in which court the action is to proceed. Unless there are regulations, there may be conflicting decisions. Each court may claim or refuse jurisdiction.
Under the present system of common law, such questions are dealt with quickly. They can come before an English or Scottish court by way of a preliminary point, they are dealt with in a very short time and, what is even more important, decisions can easily be found. They are all reported in The Annual Practice in England and a similar book in Scotland. Practitioners can easily obtain access to the decisions and advise their clients as to what is to be the likely result.
In Title II, Articles 2 to 24, this convention has elaborate rules. Judging by experience of the Brussels Convention of 1968, which is similar in all material respects, there are likely to be a number of disputes about those rules. There have been a large number of disputes under the Brussels Convention, particularly as regards Article 17, which is very important. It deals with what is called prorogation of jurisdiction. In common language, that is cases where parties agree that such and such a court is to or is not to have jurisdiction. Many of those cases have been referred to the European Court of Justice in Luxembourg.
I have given to the noble and learned Lord rather short notice of this question, but I wonder whether he can give me any idea of the number of cases which have been referred to the European Court under that section. I suspect that there are very many judging by the references in the footnotes to the textbooks, which of course are not entirely complete or up to date. It seems to me that a large number of cases have been the subject of international litigation and have been referred to Luxembourg under that part of the Act.
The situation under the Lugano Convention is slightly different. As the noble and learned Lord pointed out, it is true that matters are not to be automatically referred to the Court in Luxembourg if EFTA countries do not want that. Under Protocol No. 2 there is the machinery under which regard is to be had to decisions of other courts. I am not quite clear as to whether regard is to be had to decisions at 930 Luxembourg. I should think that that must be the case because decisions cannot be given which fail to take account of the highest court in Europe.
Therefore, practitioners are faced with the fact that they may have to bring much more elaborate proceedings to determine jurisdiction. They must search further for authorities and guidance and will find it more difficult to advise their clients.
As regards the judgment part of the convention, which is certainly of very great importance although to my mind slightly less important than Title II, the same problems arise although perhaps in an even more accentuated form. As the noble and learned Lord said, there is no doubt that that part of the convention has potential benefits. It must be good and simple to be able to register a judgment in another state and have it automatically enforced. However, it is not quite as simple as that. There are a number of qualifications, as there must be a number of exceptions in the convention, and there is no doubt that the convention must be interpreted in relation to the enforcement of judgments.
In interpreting the convention, courts must have regard to external matters outside the convention. I have no objection to that. In particular, they must have regard to the other texts of the convention. Our courts have sanctioned that process. What do we have here? In relation to the Brussels Convention 1968 there are four texts. In relation to the Accession Convention by which this country joined the Brussels Convention, there are three more texts. In relation to the Lugano Convention, there are 14 equally authentic texts. In relation to the future, we may look forward to the noble and learned Lord, if he occupies that position for as long as he will, coming before us and asking us to approve up to 18 texts in Polish, Czech, Hungarian and so on. They will all be equally authentic and may have to be referred to should any question of doubt arise in relation to the convention.
One must not exaggerate that. One can conjure up nightmares which are not totally real. Many cases can be dealt with easily on the English text and it is not very likely that much light will be thrown on a question of interpretation by reference to the Greek text. Nevertheless, the problem is real. These multi-texts are all of equal authority and if there is a dispute they must be looked at.
Those texts are not easy to obtain. They are not to be found in the Library here. More than once I have asked for another text of the convention and even with the resources here it is necessary to refer to Brussels and the text must be sent over from Brussels. We must consider the position of the ordinary barrister or country solicitor who is faced with the task of obtaining these texts. It is by no means an easy problem to solve. It becomes even more difficult when dealing with the growing tendency of Acts of Parliament to refer to reports of professors. We found that in the Contracts (Applicable Law) Act. We found the report of Mr. Jenard mentioned in the Brussels Convention. In the Accession Convention we found mention of Mr. Schlosser, and in this convention we have mention of both Mr. Jenard and Mr. Möller.
931 In order to obtain the reports one first needs a copy of the Official Journal of the Communities, which is not to be found at every branch of W. H. Smith. One must then find the relevant passage among the 2,000 pages of the journal. The report itself is usually of considerable length—around 50 pages. The unfortunate country solicitor in Merthyr Tydfil must extract the relevant—probably very relevant—passage of these very good reports to which the European Court often refers. One cannot do without them. The unfortunate practitioner in York or Inverness must dig out the reports and find out what they mean before he can properly advise his client. That is all part of the price to be paid for what appears to be a beneficial process.
I should like to leave two points with the Government. I shall also mention one slightly different topic. First, perhaps the Government can help the ordinary practitioner by making matters more accessible. I do not quarrel with the process generally. But if the Government think fit to embark on a regime of harmonisation and to impose it on our courts in substitution for perfectly satisfactory English or Scottish rules, they have a responsibility to make the task of practitioners easier. We cannot expect the ordinary practitioner to go out and search for, and to buy at considerable expense, the essential documents on which he must rely.
The Government could perhaps help directly by consolidating the amendments to the 1982 Act. I have no doubt that they will do that in due course. Article 2 of Protocol No. 2 is of some help. The noble Lord, Lord Mishcon, referred to that. It is registered at Luxembourg under the Registrar of the Court which provides for relevant cases to be assembled. That is no doubt of some good, but it looks somewhat bureaucratic for a committee to be set up to examine how it is to be run. It is probably largely professorial in character.
On top of that I ask the noble and learned Lord to consider whether there is a case at this time for a cheap and comprehensive government publication to be produced, which will provide practitioners with the relevant material. The only alternative is private enterprise. Private enterprise does help; Mr. Lawrence Collins produced an excellent book on the 1982 Act. However, there are limits to what private enterprise can do. There is no money to be made from that kind of book. It must be produced as a matter of public service, and there are limits to the public service spirit of such a gentleman even as Mr. Lawrence Collins. With the deepest respect to the Government I suggest that they should take more steps towards making the task of the practitioner easier.
My second point relates to the general process of harmonisation conventions in areas where English or Scottish law is perfectly satisfactory. I enter a plea for more practitioners to be involved in the process of negotiating conventions. They are largely arranged by professors, very learned gentlemen, who are much more interested in the continental theories of harmonisation of laws than in the practical jobs of 932 those who must attend the courts. Again, with respect, I urge caution against that extending process of incorporating professors' reports into Acts of Parliament. I have no objection to it jurisprudentially; it is probably quite a good thing. But we are adding enormously to the mass of material which the unfortunate practitioners have to consider. I respectfully urge that a brake should be imposed on that process.
My next point is perhaps a little heretical. I suggest that consideration should be given to reducing the number of authentic texts. It becomes quite absurd when one says that there are 14 authentic texts of a particular convention. If there is any argument in favour of a single currency, which I doubt, there is surely an equal or greater argument in favour of a single authentic text. We waived our sovereignty in relation to the English language on a number of occasions in favour of a French or other text, and the French have done the same in favour of English. The time has now come, as the Community extends and we take in the EFTA countries and probably the countries of Eastern Europe, to say that we should have one text which is authentic. Conveners of reference can by all means have their national text, but do not let us force them to look at all the others.
I wish to mention a point which is unrelated to what I have said so far. A problem arises in relation to countries which are not members either of the Community or of EFTA. They are countries such as the United States and Canada, which are often involved in judgments given either by British courts or European courts. A very real problem exists, for example, when a French judgment is obtained against a United States company. How is the judgment to be enforced against assets in that country?
An article in the convention, such as Article 59 of the Brussels Convention, enables special agreements to be entered into between those countries with a view to mitigating difficulties and asperities. I believe that an agreement was entered into with Canada in 1986 under the Brussels Convention. There has not been one entered into in relation to the United States. Perhaps the noble and learned Lord can advise us as to whether it is intended to carry forward the same process of negotiation in relation to this convention as was carried out in relation to Brussels. I imagine the answer will be, yes. Secondly, can he say whether there is any greater prospect of obtaining agreement with the United States, which would be important in the interests of commercial relations.
With apologies for my somewhat lengthy exposition I am very glad to welcome the Bill.
§ 12.27 p.m.
§ The Lord Chancellor
My Lords, I am grateful to the noble Lord, Lord Mishcon, and to my noble and learned friend Lord Wilberforce, for participating in the debate. I am particularly glad because of their depth of knowledge of this important subject; their general welcome to the Bill is therefore all the more valuable. I particularly thank my noble and learned friend Lord Wilberforce. I am sure that the noble 933 Lord, Lord Mishcon, as well as myself, recognise him as being especially authoritative in this as in many other areas of our law.
I entirely accept the view that this process involves difficulties for those affected by it. But the process of harmonisation assists even the solicitor in Inverness or York when it comes to his client wishing to pursue a judgment in Sweden. At present he may experience considerable difficulty in finding out even how to begin. I believe one of the most valuable things we can do to minimise the difficulty of the practitioner is to secure a text that is as clear as possible. The negotiations have been principally directed to that end.
The price that one must pay is the price that is involved in securing an agreement. So far—if I might take one of my noble and learned friend's points—the signatories appear to have insisted on having a diversity of authentic texts. I entirely agree with my noble and learned friend that to have a single authentic text would be a considerable step forward.
I shall endeavour, more or less in order, to deal with the various questions that have been put to me. The noble Lord, Lord Mishcon, referred to ratification. I do not expect any difficulties in that respect. Certainly none has become apparent so far. We must wait to see how the position develops. Our intention is to ratify after Spain and Portugal have ratified their treaty of accession to Brussels which should be in about 12 or 18 months' time, so that the Brussels Convention comes first and we follow immediately or shortly after that. The present view is that we should be able to bring this Bill, if it becomes an Act, into force probably in the first half of 1992, but I hope that it will he not later than the end of 1992 if all goes well.
I now come to the reports referred to by my noble and learned friend. When the 1982 Act was introduced by my noble and learned friend the then Lord Chancellor, it was decided that if we were to have reasonable harmony on the construction of the Brussels Convention in this country with the other countries in the Community, it would be necessary that the materials that they would be likely to look at should be looked at here also. Therefore a provision was included on the lines referred to, enabling our courts to look at reports prepared in connection with the Brussels Convention and which had a status in relation to the preparation of that convention.
I repeated that explanation in almost identical terms when we dealt with the Contracts (Applicable Law) Fill. My noble and learned friend Lord Simon of Glaisdale pointed out to me —of course, many developments have taken place since 1982 and one must keep that in mind—that the form of the clause might be regarded as restrictive on what other materials the courts could consider. With his assistance, we modified the provision in the Bill in regard to the Rome Convention in order to accommodate that point. The phrase that we have used here is the phrase that we developed then. The intention of my noble and learned friend, with which I entirely agreed, was that we would not exclude anything that the court would otherwise wish to look 934 at. All we wished to do was to emphasise that this material was available for the courts to look at and give such effect as is possible.
I entirely agree with the view that everything possible must be done to make administration as simple as possible. We have achieved a great deal in the provision to which the noble Lord, Lord Mishcon, referred, in making sure that the judgments of the various courts under the Lugano Convention are circulated when we do not have, as in this case, a central court with jurisdiction to give authority to judgments which would, of themselves, be so regarded in all the parties to the convention.
My noble and learned friend Lord Wilberforce asked about the total number of cases that we have referred to Luxembourg under the Brussels Convention. I have been given a figure of 61. I am grateful to my noble and learned friend for giving me notice of that question because certainly I would not have had that figure in my head, and I doubt whether I would have had an accurate impression of it. I should have thought that there were more than 61, and I am glad that I was not put to the test on that point. I do not know how many of those cases related to Article 17 alone, but I share the view of my noble and learned friend that there has been a considerable number.
This is an important clause. I believe that it is extremely important that in the Lugano Convention we also have the possibility of invoking the jurisdiction of a court by agreement. As I have already said, that would be extremely helpful to the use of our commercial courts by people who are not themselves domiciled in this country.
As regards the negotiation of future conventions or the continuing process of harmonisation, I welcome the assistance of practitioners. We always seek to obtain the help of practitioners, if in no other way than by circulating the text for comment by those who have experience in these matters. We have been reasonably successful in making use of their views when they have been put forward. This gives me the opportunity to refer to the tremendous work that Sir Michael Kerr carried out in connection with the negotiation arrangements under the Brussels Convention; and who is more experienced than he in the practical aspects of these matters?
To turn to countries outside EFTA and the EC areas, as I said when I introduced the Bill, one of the possibilities opened by this convention is that others outside these areas may come in. Personally, I should very much like to see that. The process, with all the difficulties involved in it, would do a great deal for world trade if it could be extended further. It would be difficult to give any realistic assessment of present prospects, but your Lordships can be assured that we desire to press on as much as possible with the Commonwealth and, if there are prospects, also with the United States.
In regard to assisting the practitioners, one of the reasons why we included the convention in full in the schedule to the Bill is for that purpose. I hope that 935 that, for the ordinary practitioner, is the main tool that he requires. I agree that refined questions may occur to people on the precise construction and application of the provisions, but at least the schedule goes some way in that respect.
As regards putting the whole new Act out in its amended form, by consolidation or otherwise, I certainly hope that that will follow as quickly as we can manage to arrange it.
I also take this opportunity of paying tribute to Mr. Lawrence Collins for his excellent work in connection with the 1982 Act. I bear in mind, especially since I now have been given more responsibility than hitherto in relation to the Statutory Publications Office, the possibility of a cheap and comprehensive work on the subject. Possibly these two criteria are almost mutually exclusive, but they are both desirable aims, and in so far as it is possible to attain them we shall keep the possibility in mind. I hope that a practitioner will be willing to assist in that regard because private enterprise has a way of doing these things perhaps more successfully than government. In any case, it is a matter to be kept in mind, and I am grateful to my noble and learned friend for raising it.
With the additional strength of the two speeches made since my opening remarks, I renew my Motion that your Lordships give this Bill a Second Reading with even more confidence than I began. I also reciprocate the good wishes for the season expressed by the noble Lord, Lord Mishcon. I extend them not only to the noble Lord but to all noble Lords who have been kind enough to participate in this Sitting.
On Question, Bill read a second time, and committed to a Committee of the Whole House.