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Lord Lester of Herne Hill: My Lords, the Law Commission and the Scottish Law Commission are excellent institutions, created, as the noble Lord, Lord Irvine of Lairg, has just reminded us, almost 30 years ago by Lord Chancellor Gardiner as his great innovation, supported, as I recall, by Home Secretary Jenkins. The law commissions have rightly expressed anxiety recently about the way their work has been consistently neglected by Parliament, an anxiety shared by many other people concerned with the quality of our laws. I endorse what has been said about that just now by the noble Lord, Lord Irvine of Lairg. It is therefore most welcome that the Government have introduced this Bill to give effect to three of the law commissions' reports in the field of conflict of laws. Unlike the noble Lord, Lord Irvine of Lairg, however, I must say that Part III of the Bill is highly controversial, as were some of the law commissions' own recommendations on choice of law in tort and delict. Since most noble Lords are not lawyers, I shall try to explain why in words which even I understand.
Part I of the Bill will allow an English court to order that interest on a judgment given in foreign currency is set at the rate appropriate to that currency. Until now the interest rate has been the same, no matter what currency the judgment was given in. It may come as a surprise to some noble Lords that our courts do not have this power at the moment; but they do not, and it is high time that they did. Part I of the Bill is therefore wholly sensible and entirely uncontroversial.
Part II of the Bill deals with overseas marriages in which one of the parties is domiciled in a country where polygamy is permitted. It makes a limited, sensible proposal. Just because the husband happens to be domiciled in a country where polygamy is permitted, the marriage should not be automatically invalid if the wife is domiciled in England. The present law has developed in a rather unsatisfactory way. If a man from this country wishes to marry a woman from, let us suppose, Pakistan, and goes to Pakistan for the marriage ceremony, the marriage will not be treated as polygamous, and will not be void. But if the roles are reversed, and a British woman goes to Pakistan to marry a man domiciled there, the marriage will be treated as
I regret that the same cannot be said in respect of Part III. It proposes to abolish in their entirety the carefully developed common law rules about choice of law in tort and delict cases. One of the most controversial proposals is the removal of the present rule that a plaintiff may succeed in the courts of the United Kingdom only if the conduct complained of would have amounted to a tort under our own law. The version of the Bill drafted by the law commissions did not go as far in this direction as does the present Bill and the law commissions' version provided a better balance of conflicting policy considerations. It is unfortunate that the Government have departed from the law commissions' more balanced proposals.
Some examples may help to illustrate my real concern about Part III. First, let us suppose that a complaint is made against a United Kingdom power generator that its emissions have damaged forests in Norway or that a nuclear power station has injured the livelihood of fishermen in Ireland. Let us suppose that both generators have carried out their operations in scrupulous compliance with UK common law and statute law. Under the law as it stands today, a plaintiff could not recover damages in England because the conduct would not be tortious in England or Scotland. But Clauses 10 and 11 would probably permit them to do so. At present, if proceedings are brought in Norway or Ireland, the judgment may be enforced in the United Kingdom. That is, in my opinion, a more appropriate way of dealing with the problem than to require a court in the United Kingdom simply to apply foreign law to a question like this and to displace our own statutory scheme under which the power generators have lawfully operated.
Next, let us suppose that a British newspaper or broadcaster has published truthful but damaging material about an elected politician or public officer and the publication occurs abroad as well as in this country. At present, if the plaintiff were to attempt to sue in England for libel he would fail, because it is a defence in English libel law for the publisher to prove that what he published was true. But under this Bill the plaintiff will be able to obtain damages or even an injunction in the United Kingdom if in the foreign country where the publication also took place truth would be no defence.
The same applies to the defence of qualified privilege for libel about the way in which someone has discharged, or failed to discharge, his or her public functions. That defence of qualified privilege may well be recognised as part of English common law, as it is in the United States or Australia or India, but it may not be recognised in the plaintiff's country--say, Canada, Malaysia or Singapore. The newspaper or broadcaster will not be able, under Part III of the Bill, to rely on
The law commissions carefully considered this problem and concluded that, where the UK is the country of origin of the defamatory statement, UK law should apply regardless of where the alleged wrong was subsequently published. The law commissions did not support this new exposure of the British media to foreign libel claims in this country which will arise if Part III of the Bill is enacted in its present form.
I believe that there is an important point of principle here. Freedom of expression and freedom of the press are vital civil rights and liberties which, as the Law Lords have also made clear in the Spycatcher and Derbyshire cases, are restricted under English law only where necessary in a democratic society in accordance with the common law and Article 10 of the European Convention on Human Rights. Surely, in this age of global communications, it would be quite wrong for the freedom of the press in this country and elsewhere to be chilled or restricted by applying in English courts the laws of foreign countries which are far more repressive of freedom of expression. I hope that your Lordships will think that there is nothing narrowly nationalistic about my saying so.
There is a third example. Suppose that an auditor acts without proper care and as a result an investor in the company suffers loss. As a matter of English law recently and clearly established by the Law Lords in the Caparo case, there is no liability to such a stranger for what is purely economic loss. By what if the investor lives in and loses money in a country under whose law the auditor would be liable to him? Is it right that such an investor should have a claim which would be denied to an English or a Scottish investor in exactly the same boat?
Fourthly and lastly, there are some foreign torts which sound very strange indeed to English ears, such as "insult" or "infringement of self-esteem". It would be very dangerous to require an English court to give effect to such laws which may differ very greatly from the fundamental values of English and Scots law.
I realise that some may say: if a UK court is prepared to enforce a contract governed by foreign law, why should it be reluctant to give damages for a tort under foreign law? One answer is that all contracts are agreements, and all agreements are much alike. Torts are very different, much more variable, and enshrining disparate national views as to freedoms, duties and the extent of compensation. They need more careful scrutiny than foreign contracts usually do.
Others may point out that Clause 13(3) (a) (i) allows a foreign law to be displaced if it is found to conflict with public policy. But surely it is invidious for a judge to have to find, and to say that he has found, the law of another country to be so objectionable that it offends English or Scottish public policy. Yet there is a danger that this will be more and more often what is required of our judges if the Bill is enacted in this form, and in a manner which protects our civil rights and liberties. I suggest that that is a recipe for a divisive jurisprudence --the very opposite of the aims of a fair
I hope I shall be forgiven for having taken so long. I would like to conclude by saying this. Liability in tort raises important issues which go right to the root of civil liberty and civic responsibility. Part III of this Bill proposes making the freedoms and standards of English and Scots law largely irrelevant when the tort occurred wholly or mainly overseas. Even though this matter was examined at some length by the law commissions, it cannot be regarded as uncontroversial, and ought to be given very careful and detailed scrutiny if the new law is not to be much less satisfactory than it is today.
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