HL Deb 27 November 1990 vol 523 cc954-8

6 p.m.

The Lord Advocate (Lord Fraser of Carmyllie) rose to move, That the draft order laid before the House on 7th November be approved. [1st 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 Spain and Portugal acceded to the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, as well as to the 1971 protocol.

The Brussels Convention was drawn up between the six original member states of the European Community under Article 220 of the treaty. That article 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; to facilitate recognition, and to 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 Community to interpret the convention.

On becoming a member of the Community each state undertakes to accede to the Brussels Convention and to the protocol: this is 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. It has been in force in the United Kingdom since 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 25th October 1982; that convention was ratified by the United Kingdom last year and came into force on 1st October 1989.

The convention on the accession of Spain and Portugal, the two final states, was signed on 26th May 1989. In a joint declaration made at the same time, the member states declared themselves ready to take every appropriate measure with a view to ensuring that national procedures for the ratification of the convention are completed, at the latest, by 31st December 1992. So far only the Netherlands has done so.

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 of 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".

The length, in terms of printed pages, of the order before your Lordships today is perhaps disproportionate to the amount of new material it contains. The greater part of the printed order consists of schedules, replacing those presently in the 1982 Act. The amended text of the 1968 convention, and of the protocol, is reproduced in its entirety in Schedules 1 and 2. This practice has been welcomed in the past. The remaining schedules contain the amended text, so far as is relevant, of the 1978 accession convention, the convention by which the United Kingdom acceded; and the relevant provisions of the Spanish and Portuguese accession convention.

I would draw attention to Article 8 of the order which amends Section 3 of the Act to permit consideration by 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 Spanish and Portuguese accession convention drawn up by three eminent lawyers: a Portuguese, a Spaniard and the honorary director of administration at the Belgian Ministry of Foreign Affairs, Monsieur Paul Jenard. Section 3 already permits reference to the corresponding reports on the Brussels convention and on the earlier accession conventions. The amendments to Sections 39 and 52, in Articles 10 and 11 respectively, will enable either corresponding provisions to be applied, or the 1968 convention itself to be extended, not only to Gibraltar and the sovereign base areas but to "any colony".

As your Lordships will be aware, the Civil Jurisdiction and Judgments Bill was introduced before your Lordships' House on the 15th November. The object of that Bill is to enable the United Kingdom to ratify the Lugano convention on jurisdiction and the enforcement of judgments. That convention was drawn up between the member states of the European Community and the member states of the European Free Trade Association, and creates a regime between the states of those two organisations parallel to that of the Brussels convention. Although the provisions of the Lugano convention follow, so far as is appropriate, those of the Brussels convention, the opportunity was taken to incorporate some changes deemed to be necessary in the light of 20 years' experience of the practical operation of the Brussels regime.

Given the parallel nature of these two conventions it was considered desirable by the working party negotiating the Spanish and Portuguese accession convention to take that opportunity to reflect, if I might so call them, the "Lugano improvements", back into the 1968 Brussels convention. Most of those changes are of a minor nature, and I shall not detain your Lordships more than to highlight three of the more significant of them. They affect, in matters of detail, the rules on jurisdiction in Title II of the 1968 convention. The relevant articles in that convention are Articles 5, 6 and 16 relating respectively to contracts of employment; matters relating to a contract where the action may be combined with an action relating to rights in rem, and proceedings having as their object tenancies of property for temporary private use.

Having by those means effected the alignment of the Brussels convention with the Lugano convention, it remains to be considered, as a separate exercise, whether we should now make corresponding adjustments to Parts II and III of the 1982 Act which deal with jurisdiction and the recognition and enforcement of judgments within the United Kingdom, and jurisdiction in Scotland. Consideration of those matters will begin shortly.

For the present, however, I commend the order to your Lordships as a step towards the creation of a common market in judgments, not only within the Community, but also within western Europe as a whole.

Moved, That the draft order laid before the House on 7th November be approved. [1st Report from the Joint Committee.]—(Lord Fraser of Carmyllie.)

Lord Macaulay of Bragar

My Lords, your Lordships' House is grateful to the noble and learned Lord the Lord Advocate for his explanation of the order. From this side of the House there is no objection in principle to what is regarded as being a useful piece of legislation governing many aspects of enforcement of rights between contracting states, as the noble and learned Lord outlined. The new Civil Jurisdiction and Judgments Bill, soon to go through your Lordships' House, will incorporate most of the order in the schedules.

I ask the Government whether they would be prepared, from a practitioner's point of view, to issue guidelines as to where the appropriate law can be found. It is not an order which stands on its own. There has been a succession of orders, and practitioners advise me that it takes a long time to set the application to the court in motion. An example of that can be seen in Article 32, which deals with the application.

If one puts oneself in the position of a solicitor or counsel being asked what should be done about the application, one turns to Article 32 and finds that it reads as follows: The application shall be submitted—in Belgium, to the tribunal de première instance or rechtbank van eerste aanleg". Who is that and where is that? Goodness knows! It continues, in Denmark, to the byret". One could be trivial about that and ask if that is a small cowshed. The article continues, in the Federal Republic of Germany, to the presiding judge of a chamber of the Landgericht". I am no linguist, as will no doubt become evident as I go through the clause. The article continues, "in Greece, to the", and then there follow two Greek words which I am totally incapable of translating. I cannot see how any solicitor or counsel could advise his client who to make the application to in Greece. Presumably one sends it by carrier pigeon, hopes it lands somewhere and is accepted.

The article further reads,

  • "—in Spain, to the Juzgado de Primera Instancia,
  • —in France, to the presiding judge of the tribunal de grande instance,
  • —in Ireland, to the High Court, [no specification]
  • —in Italy, to the carte d'appello,
  • —in Luxembourg, to the presiding judge of the tribunal d'arrondissement,
  • —in the Netherlands, to the presiding judge of the arrondissementsrechtbank,
  • —in Portugal, to the Tribunal Judicial de Circulo".
The solicitor can advise his client that those are all the places to which the application will be sent in due course, and no doubt disappear for all time. Those phrases are repeated, and I shall not bore your Lordships by repeating them again. I spoke to the noble and learned Lord regarding the matter and the Government have some sympathy with practitioners in that regard. It would be useful if at least the names and addresses of those places detailed in Articles 32, 37 and 40, and Schedule 2, Article 2 could be supplied to practitioners for use when advising clients to whom they should apply.

Lord Fraser of Carmyllie

My Lords, perhaps I may respond briefly to the point raised by the noble Lord. I am grateful for the general welcome he gave to this useful order. In addition, the Government are most anxious that conventions such as this, once ratified, should achieve the best possible effect in practice, and he is right to highlight that. I am accordingly grateful to the noble Lord for raising a point which is of fundamental importance in the operation of the convention.

It might be suggested to the editors of Supreme Court Practice—the white book, as it is known—that they should consider listing in their commentary to Order 11 the addresses of the courts referred to in the convention. That might be a good way of reaching the widest audience. Certainly that would be true of English practitioners, and it parallels the suggestion that could be made for such a publication in Scotland.

However, perhaps I may say to the noble Lord that, in a sense, that is only one side of the problem. It is also necessary that continental practitioners should know the whereabouts of the relevant courts in the United Kingdom. As this is a matter of interest to all the contracting parties, I suggest that the best way forward would be for the United Kingdom to seek to pursue a solution within the Community's working group on judicial co-operation.

With those brief remarks, I repeat my thanks to the noble Lord for his comments on the order.

On Question, Motion agreed to.