HC Deb 28 April 1972 vol 835 cc1998-2004

Question proposed, That the Clause stand part of the Bill.

Mr. McLaren

The Clause merely deals with the Bill's Short Title, extent and commencement. The Bill is not to extend to Scotland or Northern Ireland. The Scottish law of evidence is being considered by the Scottish Law Commission.

It is proposed that the Bill should come into force on 1st January next, which would be a convenient date allowing the profession sufficient time to become familiar with the provisions.

Question put and agreed to.

Clause 6 ordered to stand part of the Bill.

Bill reported, without Amendment.

3.9 p.m.

Mr. McLaren

I beg to move, That the Bill be now read the Third time.

As we have been through the Bill in detail already in Committee it is not necessary for me to say much now. My hon. and learned Friend the Solicitor-General said in passing that it was in 1964 that the Lord Chancellor asked the Law Reform Commission to review the law of evidence in civil cases. The Commission did so to some effect: its first three reports have already been implemented by the Civil Evidence Act, 1968. Those were reports about hearsay evidence in civil proceedings, and about estoppal and privilege. In this Bill we are dealing with the fourth report, which is about evidence of opinion and expert evidence. Although we have had to discuss today a great deal of technical material, the golden thread running through the Bill is that the intention is to simplify proceedings in the higher civil courts, and save time and expense.

The Bill follows closely the draft Bill which was attached to the Committee's report. In Committee of the whole House we canvassed the difference of opinion in the Committee's membership about the compulsory disclosure and exchange of reports, and we need not go over that ground again. At the end of the day we shall have to rely to a large extent on the common sense and experience of the Masters of the Queen's Bench Division. They are very experienced in deciding the points which will come up on the summons for directions. They will retain their discretion, unfettered, to order or not to order compulsory disclosure in accordance with the circumstances of individual cases.

I confidently believe that the Bill will make civil litigation speedier, simpler and more economical. I therefore hope that the House will allow the Bill to pass, with an expression of our thanks to the Law Reform Committee for the valuable work it has done in this rather technical field. I also thank hon. Members in all parts of the House for all the contributions they have made today in our discussions in Committee.

3.12 p.m.

Mr. Percy Grieve (Solihull)

I came into the Chamber very late today and, unfortunately, was not here for the earlier stages of the Bill. I came straight from the courts. As a legal practitioner—I know that I speak for many legal practitioners who have considered this matter —I give an unreserved welcome to the Bill.

I welcome particularly the provisions with regard to expert evidence. Although times have changed and there have been changes in procedure with regard to expert evidence, for far too long when cases have ultimately come to trial, particularly in injury cases involving medical evidence on two sides, there has tended to be a conflict between experts which in the end turns out not to be a conflict, with each side relying on nuances in medical reports, which might well have been resolved if the doctors on both sides had been able to consult.

The Bill does not provide for that, but it goes a long way towards it because, under the provisions with regard to expert evidence, if the reports of expert witnesses are exchanged, both sides can see whether there are any minor differences between them. This should tend towards the settlement of more cases out of court and to the speedier decision of cases when they come to court. I believe that this will be of great assistance in litigation.

I completely endorse what my hon. and learned Friend the Solicitor-General said earlier about Clause 4, the provisions of which will greatly assist the administration of justice, particularly at a time when we are on the threshold of entering the European Economic Community and when it is to be expected that there will be much more commercial contact with countries in Western Europe so that our courts more frequently than in the past will have to consider matters of foreign law.

3.15 p.m.

Mr. Stanbrook

I am sorry that I cannot join in the welcome to the Bill. Until now the law of evidence has guarded against four objectionable features—hearsay evidence, compulsory disclosure, opinion evidence by experts and opinion evidence by laymen. The Bill introduces all four of those features and gives them legal sanction in the future. That is enough to ensure that the Bill should perhaps be looked at with great care. Indeed, in my submission it should not be passed at all.

We should beware of overloading out trial system with rules ostensibly designed to speed up the process of justice but which are produced at the expense of its quality. Our legal system is now clogged up, rather like the forms of the Queen's Bench before the evolution of Chancery proceedings and the application of the rules of equity. In those days if one could not bring oneself within the forms there was no remedy. It was only by the operation of the good offices of the Lord Chancellor acting as the King's conscience that it was possible for the ordinary person, who was unable to get his justice because of being so entangled by Queen's Bench rules, to get justice at all in the end.

It seems to me that the Bill is a perfect example of the legal situation that we have reached in this country and that we need a similar reform today. We have a case of the Lord Chancellor, perhaps through the Law Reform Committee, allowing many desirable and sometimes rather undesirable improvements to procedures to take place while ignoring what is perhaps the fundamental problem of our system in which the courts are being ignored in the resolution of so many disputes between the community and individuals and between individuals and individuals.

In the absence of a system of administrative law and courts to enforce it, which we badly need, we have been driven to temporary expedients. We have been driven to a device called the Parliamentary Commissioner for Administration, who is no more than a big bureaucrat keeping a watch over other bureaucrats—a highly unsatisfactory method of investigation and redress of grievances because it does not appear to the average person with a grievance that his dispute or grievance has had a fair hearing. He understands a fair hearing to be a trial in open court with publicity and examination of witnesses. The English legal system should be the bulwark of our liberty. Unfortunately it is being increasingly elbowed out of the field of the settlement of dispute between citizens and authority, and increasingly it has been throttled by rules like those in this Bill imposed in the name of efficiency.

I should like to emphasise that too great an emphasis should not be placed upon what is helpful to judges. It seems to me that that is one of the major points made in the Report of the Law Reform Committee which gave rise to the Bill. The public interest is the dominant consideration. The question whether the system of law should be changed or made in the interests of judges or professional experts or their professional institutions is irrelevant beside the public interest. In the cut and thrust of a trial, in evidence brought out by the adversary system, lies our lifeblood. If we restrict this, as we are restricting it by the Bill—with provision for written evidence and hearsay evidence—we are losing something precious to our way of life.

There are, of course, problems. The Lord Chancellor and his predecessors are known sometimes as reforming Chancellors. I wish, however, that they would give more attention to the application of the court process to more of the problems which confront us in modern life, and more attention to the tendency—a tendency implicit in the present Bill—to elbow out the courts from modern judicial processes.

We want improvements today to our trial and legal system not only in the interests of judges, not only in the interests of experts and their professional bodies, but in the interests of all and especially of the man in the street, who is becoming increasingly isolated from authority by the very tendency to ignore him in the interests of efficiency.

That is why my objections to the Bill, and the objections voiced in the Minority Report of the Law Reform Committee, are of fundamental importance and ought not, I submit, to be disregarded by the House.

3.21 p.m.

Mr. S. C. Silkin

I shall be brief, especially as I know that my hon. Friend the Member for Bilston (Mr. Robert Edwards) has been waiting patiently with an important Bill which he wishes to put to the House.

I cannot regard this Bill as sapping at the foundations of justice, as apparently the hon. Member for Orpington (Mr. Stanbrook) believes it does. It makes a modest liberalisation of our procedures, which I welcome. Like the Solicitor-General I feel that it is a modest Measure, and we could go a great deal further than we have.

When I think of certain courts in which the procedure is far more liberal than that which applies generally, and when I think that laymen, planning inspectors and the like, dealing with matters which may involve millions of pounds, are entrusted with the duty of deciding upon the weight of evidence without all the panoply of the rules of evidence imposed upon our courts, I wonder whether the courts restrict themselves unnecessarily by the rules which we are but slowly and gradually modifying.

However, we are slowly and gradually modifying the rules. We are taking a further step in the Bill. I welcome it and I congratulate the hon. Member for Bristol, North-West (Mr. McLaren) on introducing it.

3.23 p.m.

The Solicitor-General

I concur in what has been said by the hon. and learned Member for Dulwich (Mr. S. C. Silkin) and I join in the gratitude which the House feels towards my hon. Friend the Member for Bristol, North-West (Mr. McLaren)—I have already expressed my gratitude to the Law Reform Committee—for having brought the Bill before the House. I am prompted to say a little more at this stage, however, by the further observations of my hon. Friend the Member for Orpington (Mr. Stanbrook).

I was glad to note what my hon. Friend the Member for Orpington said about the need for us to concentrate on the continued improvement of our system of administrative law. He was critical to some extent of the rôle of the Parliamentary Commissioner, but I think he supported the general proposition that we must ensure that our procedures are such that our legal system serves the citizen and is as closely in touch with him as possible.

I am provoked to further comment by the thought that my hon. Friend's continued lack of enthusiasm for the Bill—to put it no higher—which contrasted so much with the warm welcome expressed by my hon. and learned Friend the Member for Solihull (Mr. Grieve), must be based on a misunderstanding of what it is about. The Bill does not make changes in the interests of judges or of experts—some category of dehydrated characters who have nothing to do with the public. The changes are being made in the interests of the public. The Bill does not tend to elbow the courts or the judges out.

The truth is that, in so far as our judicial process and our courts are neglected at the moment, this may well be due to our being slow rather than sufficiently speedy in making changes and reforms of this kind. The Bill will help to make the legal shop more attractive.

The matters which the Bill contains are not, I suggest, to be criticised as my hon. Friend the Member for Orpington criticised them. We are admitting the opinion and evidence of experts and laymen. In doing that we are doing no more than recognising that, and lawyers and judges have struggled for years to keep it out. We have told witnesses that they must not voice their opinion but must confine themselves to the facts, and by acknowledging that that kind of evidence should now be admissible we are making an honest woman of the law. By providing for the admissibility of hearsay evidence we are doing that still, subject to the consent of the parties. The one significant change we are making is the provision for compulsory disclosure, but that too is subject to many safeguards.

I suspect that if the man in the street were invited to consider the matters we have been discussing, he would conclude that our legal system still too much resembles those games we used to play in the nursery—Dover Patrol, l'Attaque, Tri-tactics or even the every simple game of Jutland—the essence of which is that we did not know what was happening on the other side of the hill. This has not always contributed to clarity, celerity and justice in the proceedings of our courts.

If it does not tear down the veil the Bill will edge it slightly sideways in ways which will help citizens and parties to get justice from the courts, and for that reason it is to be welcomed.

Question put and agreed to.

Bill accordingly read the Third time and passed.

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