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Lord Henley: My Lords, I am afraid that the release of various ducks--I assure my noble friend that it is not only a matter of yellow ducks but of red beavers, blue turtles and green frogs--is of very limited scientific value since, although we know the position of their release, the exact time of their arrival on the sparsely populated beaches in Alaska and the path they take is not known. Further, there are four different types of plastic bath toy--some 30,000 ducks, turtles, beavers and frogs. Since they are of different shapes and
Lord Harmar-Nicholls: My Lords, is my noble friend aware that today in the conference hall there was a commemoration of the need for plain English speaking? Is he further aware that I have not been able to understand one word of the exchanges on this matter?
Lord Henley: My Lords, I can only apologise to my noble friend. I thought that what I was saying was as plain as a pikestaff. I shall take my noble friend to one side afterwards and try to explain in simpler language. The rest of the House, who, I believe, are of equal intelligence to my noble friend, certainly seemed to understand what I was saying.
Lord Henley: My Lords, I am afraid that my noble friend will have to wait a very, very long time before she sees the sitting ducks, yellow ducks, turtles, beavers or frogs on our own shores. I understand that it will take some five or 10 years for them to work their way through the polar ice. Even then, they might appear on the shores of Scotland or wherever somewhat squashed.
The Bill is drawn from three reports by the Law Commission and the Scottish Law Commission. The reports are all in the field of private international law; that is to say, the area of our law which enables our courts to deal with cases which contain a foreign element. I am sure that the implementation of the reports will be welcomed by the many noble Lords who support the valuable work that the commissions have done and are doing.
I hope that the Bill will follow the Jellicoe trail to the statute book, blazed during the last Session by the Law of Property (Miscellaneous Provisions) Act. If your Lordships give this Bill a Second Reading, I shall move that it be committed to a Special Public Bill Committee. The first use of this procedure for the Law of Property Bill was, I believe, a success. I consider the present Bill
The Bill comprises 18 clauses and one schedule and is divided into four parts. Full explanation of the current law and the proposed reforms is to be found in the three reports from which the Bill derives. Notes on clauses are also available in the Printed Paper Office. Part I implements recommendations in the report on Foreign Money Liabilities (Law Commission paper No. 1124) and is based on the draft clause appended to that report. This part extends only to England and Wales. It changes the law regarding the rate of interest payable on judgment debts and arbitral awards in foreign currency. At present, interest on High Court and county court judgments and arbitral awards is prescribed at a fixed rate, currently 8 per cent. This statutory rate, which is altered from time to time, reflects generally the level of interest rates currently prevailing in the United Kingdom. It does not reflect the rate appropriate to any particular foreign currency. Indeed, the statutory rate will often be entirely inappropriate to the foreign currency in question.
Clause 1 makes provision for the High Court and county courts respectively to direct that a sum awarded by a judgment given by the court which is expressed in foreign currency should carry interest at such a rate as the court thinks fit instead of at the statutory rate. Clause 3 makes analogous provision in relation to sums directed to be paid as an award by an arbitrator. Clause 4 makes various consequential amendments to certain enactments which contain provisions dealing with interest on judgment debts.
Part II and the schedule implement recommendations in the joint Law Commission and Scottish Law Commission reports on Polygamous Marriages (Law Commission Report No. 146 and Scottish Law Commission Report No. 96) and derive from the commissions' draft Bill. This part, which extends to England and Wales and Scotland, concerns the validity under English and Scottish law of marriages contracted by those domiciled in England and Wales or Scotland which are in fact monogamous but which have been celebrated abroad under laws that permit polygamy.
Clauses 5 and 7(1) implement the law commissions' main recommendation in this part of the Bill that persons of either sex domiciled in England and Wales or in Scotland should have the legal capacity--provided, of course, there is no other impediment--to enter into a valid marriage outside the United Kingdom which, although celebrated in a form appropriate to polygamous marriages, is not actually polygamous. All marriages validly celebrated in the United Kingdom are necessarily monogamous in character, so there is no need for this proposition to apply to marriages in the United Kingdom. Subsection (2) of Clause 5 ensures that that clause only affects the internal law of England and Wales. This means that where, under the rules of English private international law, the relevant law of another country is applied for the purpose of determining the validity of a marriage, those rules will still apply.
Clause 6 applies only to England and Wales and ensures that the reforms in Clause 5 should in general apply retrospectively. Subsection (1) extends the rule laid down in Clause 5(1) to marriages celebrated before the date on which this part of the Bill comes into force and deems it always to have applied to such marriages. This has the effect that such marriages are to be regarded as always having been valid. This effect is qualified by various exceptions and savings with the result that the rule in subsection (1) does not apply where either party to a potentially polygamous marriage has remarried or obtained an annulment and does not affect certain property and related rights, such as succession to a dignity or title of honour, which have accrued before the commencement of this part.
Clause 7(2) clarifies the effect in Scots law of a valid potentially polygamous marriage abroad which is at present an area of doubt and uncertainty. Marriages entered into abroad in polygamous form where there is in fact only one husband and wife are to be regarded as effective marriages for all purposes of the law of Scotland so long as they remain in fact monogamous. This provision brings Scots law into line with the present position under English law.
Finally, in this part, Clause 8 provides that the reforms in Part II are not to affect any rule or custom in relation to the marriage of members of the Royal Family. This is in line with the previous enactments in this general area of the law.
Part III of the Bill implements reforms proposed by the two law commissions on Choice of Law in Tort and Delict (Law Commission paper No. 193 and Scottish Law Commission paper No. 129) and also derives from the commissions' draft Bill. These rules relate to any action brought in a part of the United Kingdom in respect of a tort or delict which has a foreign element.
Clause 9 deals with the purpose of the choice of law rules contained in this part. That purpose is to specify the system of law, according to which the rights and liabilities of the parties must be determined, in relation to issues which the courts in this country decide are issues relating to tort or delict, as opposed, for example, to contract or some other basis of liability. This system of law is referred to in this part as "the applicable law". These rules are to take the place of the present common law rules abolished by Clause 10. Other choice of law rules which apply in particular classes of cases, such as torts committed on the high seas (which are governed by the principles of maritime law), are not affected by the Bill.
Clause 11 establishes a new general rule that, when a dispute arises in one part of the United Kingdom out of a tort or delict committed in another part of the United Kingdom or in a foreign country, the country whose law will be used to decide the dispute is that in which the events constituting the tort or delict occur. This general rule should identify the most appropriate applicable law in the majority of cases. It is likely to correspond with the reasonable expectations of the parties involved in the tort or delict. Where significant elements of the events constituting the tort or delict have occurred in different countries, the tort or delict is to be taken to have occurred in the country either where the plaintiff was
An exception to the general rule is laid down in Clause 12 so as to displace that rule in any case in which it appears to be substantially more appropriate for the applicable law to be the law of another country. Let me emphasise the word "substantially". The exception is not intended to operate every time another applicable law might be more appropriate but only where it would be substantially so.
This seems an appropriate moment in my description of Part III to mention an exception to the rules recommended by the law commissions which the Government have decided not to implement. The law commissions proposed that where conduct constituting a tort or delict takes place in the United Kingdom the law of the relevant part of the United Kingdom should apply, irrespective of what law would apply under the new general rules. They sought to justify this exception on the ground that a person who acts in the United Kingdom should not, by the application of a foreign law, be held liable in a United Kingdom court for consequential injury, loss or damage which occurs elsewhere and would not be recoverable under our law.
The Government consider this proposal to be objectionable in that it would reintroduce the nationalistic attitude which the law commissions are otherwise seeking to obviate. Further, it might not in fact protect defendants who act in the United Kingdom. In the context of the European Economic Area plaintiffs may, under the Brussels Convention of 1968 or the Lugano Convention of 1988 on jurisdiction and enforcement of judgments in civil and commercial matters, legitimately bring their proceedings in the country where they suffered the damage instead of in this country, and the courts of the other country might well apply their own law to the case. If the plaintiff is successful, the courts in this country would be obliged under those conventions to enforce the judgment against the defendant here, notwithstanding the terms of the law commissions' proposed exception.
Clause 13 ensures that the reforms in this part do not have retrospective effect. It also saves the effect of various procedural rules, the application of the principles of public policy and certain mandatory domestic rules, which are regarded as so important that, as a matter of construction or policy, they must apply to any action before our courts, even where the issues would otherwise in principle be governed by a foreign law selected by the new choice of law rules. These are important safeguards for defendants against liabilities and remedies under foreign law that for one reason or another it would not be tolerable to enforce here.
Part IV of the Bill deals with commencement, extent and Short Title. It also, in Clause 16, modifies the Northern Ireland Act 1974 so as to facilitate the extension of the reforms in Part II to Northern Ireland.
The Bill represents a useful and uncontroversial measure of law reform which has attracted the support of the legal profession. I am grateful to the Law Commission and the Scottish Law Commission for the careful work they have put into the preparation of the reports on which the Bill is based. Accordingly, I invite noble Lords to give the Bill a Second Reading.