§ 4.41 p.m.
§ House again in Committee.
§ Clause 3 agreed to.
§ Clause 4 [Amendment of law with respect to right of illegitimate child to aliment after parent's death]:
LORD HUGHES moved, in subsection (1), to add to paragraph (b):
to the extent that that person was enriched by receiving that property,
The noble Lord said: Amendments Nos. 4 and 5 go together. In order to understand the purpose behind these Amendments to Clause 4 it is necessary to appreciate the significance of the clause itself. At present, illegitimate children have, as your Lordships may know, a special right to aliment out of the estate of their deceased parents; their right to aliment is enforceable as an ordinary debt and therefore ranks ahead of widow's prior rights, legitim and other legal rights and succession rights. Since, under the provisions of Clause 2, it is proposed that illegitimate children should enjoy a right to legitim, it seems wrong that this preferential position in regard to aliment should be allowed to continue. I may say that this was a point to which the Russell Committee most helpfully drew attention.
§ The purpose of Clause 4 therefore is to remove this preferential right of illegitimate children to aliment out of their 244 deceased parent's estate and to allot to them the like right to aliment as would have been available if they had been born legitimate. There is a rather technical point of law involved here but I am advised that, contrary to what is commonly supposed, there are circumstances in which a legitimate child can, under Scots law, enjoy a right to aliment (quite apart from a right to legitim) out of their deceased parent's estate, whether before or after its distribution. Clause 4(1) extends a similar right to illegitimate children and provides that that will be the sole right that they will in future enjoy in the estate of a deceased parent. In other words, the special position of their aliment as a debt on an estate ceases.
§ Turning now to the two Amendments, I fear they are rather technical but they are of a drafting nature designed to achieve the intention behind the clause more accurately than the present form of words. We have noted two drafting defects in the clause since the Bill was last discussed by your Lordships. First, I am advised that the words at the beginning of subsection (1) of the clause, and in particular those in Clause 4(1)(b), could be construed as imposing an obligation on those benefiting from an estate who have a Common Law obligation to aliment legitimate children (for example, a grandparent) to aliment illegitimate children in the same way. This is not intended; the right with which this clause is concerned is the right of children to obtain aliment from those who have benefited from the estates of their parents only to the extent that these people have been enriched as a result. The first Amendment makes this clear.
§ Secondly I am advised that the wording of the latter part of subsection (1) could be construed as removing the general continuing obligation of a surviving parent, who has benefited from the estate of the deceased parent, to aliment an illegitimate child. Again this is unintentional. The subsection is designed to prescribe the limits of the illegitimate child's claim to aliment out of the estate of a deceased parent or from those benefiting from the estate. It was not intended in any way to affect the surviving parent's general obligations, and the second Amendment makes this clear.245
§ I must apologise in that this rather complicated matter may not have been made much clearer by what I have just said. It is difficult to put it into a few words, but at the risk of being wrong on the strict law I would say that basically what lies behind this is that if we are extending the rights of the illegitimate child to those of the legitimate child we must at the same time remove any advantages which he has and put him once again in the same position as the legitimate child. I may have oversimplified the situation, but that is what I think is meant by what I have said.
Page 3, line 7, at end insert the said words. —(Lord Hughes.)
I have not studied this question, but I have listened carefully to what the noble Lord has said and so far as I can see, from a lawyer's point of view, what he has said is quite accurate and these are desirable drafting Amendments. I therefore support them.
THE EARL OF MANSFIELD
Perhaps the noble Lord, Lord Hughes, would be good enough to say what will happen if the new clause after Clause 7, to be proposed by the noble Lord, Lord Drumalbyn, is not accepted by your Lordships' Committee, and a person who dies leaves an illegitimate child who does not immediately claim his rights. In the meantime, the property may have gone to the child or children of the deceased —for this purpose, let us say it is but one child, and that child also has died. Would the illegitimate child then have a right of recovery beyond the first generation?
§ LORD HUGHES
I hope the noble Earl will forgive me if I defer replying to that question until we come to consider Lord Drumalbyn's Amendment, No. 7.
§ On Question, Amendment agreed to.
Page 3, line 11, after ("person") insert ("(other than the child's other parent)")— (Lord Hughes.)
§ On Question, Amendment agreed to.
§ Clause 4, as amended, agreed to.246
§ Clause 5 [Construction of referemes to relationship, in certain circumstances]:
§ 4.49 p.m.
§ On Question, Whether Clause 5 shall stand part of the Bill?
§ LORD DRUMALBYN
This clause deals with the interpretation of the word "issue" in the construction of deeds, et cetera. It seems to me that having accepted the principle in Clause 1 we might as well accept this principle, but I should like to know its scope And in particular what is covered by the words "otherwise than by deed", which are quite wide words, in subsection (4). Subsection (4) says:This section shall apply in relation to a provision made after the commencement of this Act otherwise than by deed as it applies in relation to a provision made in a deed.That seems to me a very wide provision indeed, and I should like to know how far it goes. Undoubtedly, it is right that this alternation should apply only to deeds made after the Bill becomes law.
§ LORD REID
I venture to make a suggestion on this clause. It is quite a different story from what we have been discussing up to date. It applies not only to parents, but to everybody who makes any kind of will or deed or anything else in favour of the children of another pet-son. When you are dealing with the parents, I entirely agree that if either of them leave money or put money or anything else in trust for their children, it is right that the illegitimate children should be included. But when you come to a stranger I am not sure if the position is exactly the same. In many cases the stranger—he may be a grandfather. he may be a cousin, he may be a complete stranger in blood—will not know of the existence of the illegitimate children, and what we are trying to do when we are legislating about deeds or wills—at least, what I hope we are trying to do—is to make provisions which will, on the whole (because there are always bound to be anomalies), reflect the intention of the maker of the deed.
I would venture to think that when a stranger is either putting money in trust or leaving money for the children of somebody else, normally the intent is for the legitimate children—it certainly would be if he did not know about the 247 illegitimate children and I think we should get much nearer to carrying out the intention of the maker of the deed if the clause were limited to parents. I perhaps have been rather remiss in not thinking about this subject until it was too late to put down an Amendment. Therefore, I merely raise the point in case it may receive any support.
§ LORD HUGHES
First of all, may I answer the question which the noble Lord, Lord Drumalbyn, put about Clause 5(4). Subsection (4) is intended to cover bequests made otherwise than by deed—for example, a bequest which has been made orally. I should like to think about what the noble and learned Lord, Lord Reid, has said. Obviously, when we go beyond the children, legitimate or otherwise, of the testator, the position is not quite so easy. The Scottish Law Commission, when they considered this matter in their Report Reform of the Law relating to legitimation per subsequens matrimonium, published in April last year, found they disagreed with the Russell Committee who had rejected this particular aspect.
The Government therefore had two conflicting views, that of the Russell Committee, which they generally had been happy to follow, and that of the Scottish Law Commission, and after very careful consideration of all aspects of the question the Government found that the advice of the Scottish Law Commission on this matter was the more persuasive. We agreed with the Commission that the moral claim of an illegitimate child is such that a testator or donor should be squarely faced with the need to exclude him expressly if he so wished. The mere insertion of the expression "legitimate" or "lawful" will be sufficient to effect the exclusion of illegitimate persons from a will, if that is the testator's wish. I should stress that the clause leaves the testator to make up his own mind about this matter. Subject to their claim to legitim under Clause 2 of the Bill, it will be perfectly competent for a testator to prevent illegitimate children from succeeding to his estate.
The Russell Committee were concerned that the use of the term "legitimate" or "lawful" in this context could in some circumstances be construed as 248 a gratuitous insult; for example, where a father wished to benefit the children of his daughter—but only her legitimate children. Obviously it might be held that the inclusion of the words "legitimate children" might be taken to mean that the father believed, or suspected, that she in fact had illegitimate children. The Government do not accept this view. Expressions such as "lawful children", "lawful issue" and the like are already quite common in deeds for the very good reason that these expressions obviate any attempts to rebut the existing presumption that the testator intended to benefit only legitimate children. Such expressions used as they are at the present time are not thought to imply any gratuitous insult under the present law, and once they become a legal necessity for limiting the class of beneficiary to lawful children, it is hardly likely that suggestions of insult will suddenly begin to be made.
It may be argued that the rules of construction are designed to reflect the common man's understanding of the expressions, and that when he refers to his "children" he means only his legitimate children. I would not be entirely sure of that point. I would suggest that public policy has, in the past, been to place illegitimate children under disability—optimistic that this might discourage their procreation and that this policy has influenced this and other rules of construction. I see no reason why public policy should not now be reflected in the construction of bequests to children et cetera in another direction: the Government accept the moral claim of the illegitimate person to be included unless expressly excluded. If it is the present position that a man in making provision for his children thinks only of his legitimate children, then this is a situation which, of itself, is worthy of change. It is a possible and desirable result of Part I of this Bill, and this clause as one element of it, that, if this is the position now, it is a position which will alter in future.
I hope, therefore, that the noble Lord will find it possible to withdraw the Amendment. In saying so, I should like once again to say that I should like to consider what the noble and learned Lord, Lord Reid, has said and, after further reflection, I would perhaps write 249 both to him and to the noble Lord, Lord Drumalbyn, on any further conclusions I come to on the matter.
§ LORD DRUMALBYN
Before withdrawing this Amendment, may I first of all support very much what my noble friend Lord Reid has said. I am sure that this would be well worth while looking into, and I hope the noble Lord will be able to make an Amendment along these lines. There is another aspect of this. I imagine that there will be quite a number of deeds and other documents falling to be interpreted in Scotland but which are actually made outside Scoland where the tern "issue" may be used. When the noble Lord is looking into this, will he have regard to the practice in other countries where deeds may be made that the word "issue" may be used without the qualification "lawful", in the belief that the person is limiting the gift, or whatever it may be, to lawful issue. I think this is a point that is also worth looking into, because while it is fairly easy for it to become known in Scotland that "issue" will he interpreted as all issue, legitimate or illegitimate, unless this is also the case in other countries the deeds which fall to be interpreted in Scotland, though made abroad, may not fulfil the intention of the maker of the deed.
§ Clause 5 agreed to.
§ Clauses 6 and 7 agreed to.
§ 5.0 p.m.
§ LORD DRUMALBYN moved, after Clause 7, to insert the following new clause:
§ Restriction on right of illegitimate child to claim legitim
§ ".Notwithstanding anything in the foregoing provisions of this Act, an illegitimate child of any person shall not be entitled to claim a right to legitim after the expiration of six months from the date of that person's death."
§ The noble Lord said: The purpose of this Amendment is simply to bar any claim to legitim after the expiration of six months. I imagine that legitim must be claimed in many small estates where the amounts which the claimants receive are quite small and where, because of the small means of the claimants, those amounts may well be spent unless a claim is made fairly soon. It seems to me that on that ground alone there is a lot to be said for placing a time limit to a claim for legitim. The case for it could 250 also be made simply on grounds of not upsetting arrangements which had already been made by the beneficiaries in the belief that the matter had been finalised and the money was theirs. Otherwise a redistribution would have to take place later because of the subsequent intervention of the claimant to legitim. I hope that the noble Lord will find this a reasonable proposal. I beg to move.
After Clause 7, insert the said new clause.—(Lord Drumalbyn.)
THE EARL or MANSFIELD
I am in full agreement with the purpose of this new clause, but I think it would be fairer if the period proposed were one year rather than six months. Where the deceased who has left one or more illegitimate children is not a very prominent person, it may be that those children are in a different part of the country, or indeed abroad, and may not learn of his death for some little time, nor be in a position to put in their claim. Therefore I hope that the noble Lord, Lord Hughes, will be willing to accept the spirit, if not the letter, of this Amendment.
I now return to the question which the noble Lord, Lord Hughes, properly asked me to postpone until this point in the debate, that is, what happens if this new clause, or something like it, is not accepted. Is a claim to be made legitimately, perhaps ten years afterwards, when somebody returns from Australia, or when somebody living in Bournemouth discovers that his real father had passed away many years before in the North of Scotland? submit that for such a claim to be valid would be an intolerable strain on the beneficiaries who for years had had no idea that any such claim could be made. For that reason, I ask what would be the effect if, in the meantime, the legitimate child or children of the deceased had died and the money or other property which they had received from the deceased had been spread among their children, possibly eight, ten or a dozen of them. It would then be an impossible and ridiculous situation, that the illegitimate child or children, appearing from nowhere, would have to claim from a great many heirs to the original heirs the amounts to which they would 251 certainly have been entitled had they been in a position to make their claim within the statutory period, which I hope the noble Lord, Lord Hughes, will be willing to accept as being six months, or at any rate a year.
§ 5.14 p.m.
§ LORD REID
I venture to hope that the Government will accept this new clause as it stands. I fully appreciate the point made by the noble Earl, but there is a technical difficulty. Executors are normally entitled to distribute the estate if six months has elapsed and no creditors have appeared, or have all been satisfied. A child claiming legitim is, for practical purposes, a creditor. If, as not infrequently happens, the executor does not discover, either from members of the family or from the deceased's papers, that there is an illegitimate child and the child keeps silent for more than six months, everybody is put in a most difficult position.
I am not going to express an opinion as to what would happen if the executor in bona fide distributes the estate after six months and a genuine claimant appears and wants his share. But whatever the law about it, there is going to be very great practical difficulty. It is not asking very much in the ordinary way that any illegitimate child who has any genuine claim should make his existence known within a period of six months. If he does that, all is well. From the practical point of view of the solicitor and the executor administering the estate of the deceased, there is a great deal to be said for this Amendment and I would support it.
§ LORD HUGHES
If I may first of all deal with the point which was raised by the noble Earl, Lord Mansfield, the answer is simple, and I think he will find it acceptable. It is that the claim runs only against beneficiaries so far as they are enriched and is not transmitted against a second generation.
To come to the Amendment, I cannot claim—nor do I claim—that in this case the objection which I have to offer is one of principle, as was the case on previous Amendments. This is not an Amendment which strikes at principle: it seeks merely to regulate the procedure. As I am informed, legitim is a right which under 252 Clause 2 will be shared by the illegitimate child with the legitimate child. It is not something which a person has to claim, although obviously his existence has to be known before he can get it; it is something which he is to be given. If the executors, using due diligence, find someone entitled to legitim they must pay it to him without any initiative on his part.
I am told that it is rare for an estate to be distributed within six months of a person's death. I have had infrequent experience of this, but on the two occasions when I was the executor of a will it was more than six months—in one case nearly a year—before a distribution was possible, yet there was nothing very complicated about it. So that in my own limited experience I cannot argue with the information I am given by my adviser, that it is rare for an estate to be distributed within six months. Indeed, executors who distribute more quickly than this put themselves at risk of personal liability from creditors under an Act of Sederunt of 1663—which is going back a bit. Whether or not there should be a limitation on the right to legitim, it seems quite unnecessary to restrict it to so short a period as six months, which comes back to the point made by the noble Earl. Lord Mansfield.
I can see the point that delay in the discovery of an additional beneficiary, or a person holding himself out to be a beneficiary, until after the estate has been distributed is undesirable. It disturbs existing property rights or the quiet enjoyment of property rights. I cannot see why the noble Lord has limited his provision to legitim and has not extended it to rights of intestate succession, where similar considerations arise. It would seem anomalous that under the terms of this Amendment an illegitimate child could have his right to a share of an intestate estate under the new rules of intestacy accepted belatedly but not a claim in the same estate to legitim. I am not sure either (I say this just in passing) why the noble Lord has limited the Amendment to illegitimate children, although it could arise with legitimate children—the unknown great-grandchild in Australia.
The present law recognises that there may be good reasons for legitimate issue not being able to have their succession rights recognised timeously and provides 253 in such cases for the disturbance of property rights. In implementation of the principle of equality of status this must surely also apply in the case of illegitimate children. It could well be, for example, that a father had recognised his illegitimate child and supported it in childhood, but that—as in the case of many legitimate children—they had in later life drifted apart and the executor, in going through the papers, failed to light upon his existence. There is also the case of a child who for one good reason or another—perhaps absence on service abroad—did not hear of his father's death.
True, in such circumstances property rights which have been acquired may be disturbed, although I think it is too easy to exaggerate the likelihood of a successful belated claim being made by someone who claims to be an illegitimate child, but of whose existence no one—relatives or executor—knows. I doubt very much whether it will happen to an extent that will cause serious inconvenience. But where such a right exists and can be proved then, as in the case of legitimate issue, I think it is only right that no unreasonable obstacle should be put in the way of its being exercised. For all these reasons I find myself unable to accept the Amendment.
THE EARL OF MANSFIELD
I wonder whether the noble Lord, Lord Hughes, ever reads that admirable Scottish paper, the Sunday Post, because if he does he will see in it, week by week, various legal problems which readers send in. Throughout the years I have noticed on a number of occasions that a child who has been born illegitimate has that fact revealed to it, or finds it out by chance sometimes, only when he has grown up. Therefore the chance of such a claim being made is nothing like so remote as the noble Lord, Lord Hughes, seemed to think. I ask him, therefore, to reconsider this point very carefully.
There is one question arising out of a possible belated claim which the noble Lord might also be able to answer, or at least discuss with his legal advisers. What happens if the legitimate issue of the illegitimate child discover that the illegitimate child would have had a claim had he known that it was possible? Is that claim going to be continued also to the first generation?
§ LORD HUGHES
I think I was to a certain extent mistaken when I said that there was not a principle involved here, because as I went on I realised that a principle was involved. What we are facing on this question is whether or not there should be a period after which the right to receive or to continue to enjoy property should not be interfered with. As I read on I realised that, under the law as at present, where a legitimate child has a right which has net been implemented because of inability Dr lack of knowledge on the part of the executors, the fact that the child comes along belatedly does not prevent him from establishing his right, even to the extent of disturbing the rights of property which have been transmitted to other people.
We therefore come up against the principle that if we are to apply a time limit we shall be following the principle of equality only if we apply it equally against legitimate and illegitimate. children who claim or whose existence becomes known belatedly. To do so, of course, so far as legitimate children or their descendants are concerned, would be to interfere with a procedure which has been in existence for a considerable time. I cannot therefore commit myself to the acceptance on this matter of a solution which involves dealing with the claims of illegitimate children in a different way from the claims of legitimate children.
If the noble Lord, Lord Drumalbyn, wishes to consult me about an alternative form which he would wish to propose at the next stage, which accomplishes what he wants of helping the executors and helping to stop people subsequently having their rights interfered with, and can do so in a way which is acceptable to the profession and which maintains this principle of equality, then it would be quite wrong for me to refuse to look at it or even to refuse to look at it sympathetically. But I must warn the noble Lord that, having regard to the principle in these circumstances about interfering with property rights, it would be a rather difficult hurdle to get over.
As regards the further question put to me by the noble Earl, Lord Mansfield, who asked whether the legitimate children of a dead illegitimate child could exercise their right if they discovered that their father should have been a 255 beneficiary, I think that on this occasion the answer which I give him will not be as satisfactory as the one I gave to the last question, because the answer is, Yes.
May I ask the noble Lord a question, for information? It may be a very elementary question, but I am not "up" in this subject. This clause seems to mean that the right to legitim must be claimed before the expiry of six months. I am thinking of the posthumous illegitimate child, who may not be born until eight months after the testator's death. What would be the position of such an illegitimate child?
§ LORD HUGHES
I think that in those circumstances, if the Amendment of the noble Lord, Lord Drumalbyn, were accepted, the child would be, in the words of Sam Goldwyn, "included out".
§ LORD DRUMALBYN
I am bound to say that the point which the noble Lord, Lord Rea, has put escaped my notice when I put down this Amendment, so I am grateful to him for raising it. I hope that the noble Lord, Lord Hughes, will not be too doctrinaire in his approach to this, and will not be too insistent that the rights should be exactly the same because, for the reasons I have given, one needs to be a little more flexible. For the first time so far, he has shown some flexibility in his reply to this debate, and I welcome that very much.
I think it has to be borne in mind with legitim—and this is the difference from intestacy—that the inclusion in legitim of the illegitimate child could upset a will which on the face of it seemed absolutely cut-and-dried. But I should have thought that that happened very rarely, proportionately, in wills in general. That would be my answer to the noble Lord on the question of equating legitimate and illegitimate children, and also on equating intestacy and legitim. On the question of the time, I would not wish to stand on six months. I thought it was quite a good idea that all claims from illegitimate children to legitim should be lodged within six months, like any other claim.
I shall be very glad to respond to the noble Lord's invitation to discuss this with him. It is easy to conceive how in this case the misdrafting of a claim to 256 legitim could be altered to an exercise of the right to legitim, although I think that that could be quite simply changed. But I do not think we need pursue this at the present time; and although I think this Amendment has perhaps received rather more support than the previous ones I have moved, I would not wish to press it on this occasion.
§ LORD HUGHES
Before we finally conclude this matter, I should like to say that I was rather surprised to find the noble Lord, Lord Drumalbyn, applying to me the adjective "doctrinaire". It is a new one to me in your Lordships' House, and I do not think I have ever heard it applied to me outside your Lordships' House, either. But we must remember that in these matters we are dealing not with problems of politics but with problems of the law, and if there is anybody one could meet who is more doctrinaire than the most doctrinaire Left-Wing Socialist, it is a lawyer.
§ Amendment, by leave, withdrawn.
§ Clause 8 [Application of Succession (Scotland) Act 1964 to tenancies of crofts]:
§ On Question, Whether Clause 8 shall stand part of the Bill?
§ 5.22 p.m.
§ LORD BANNERMAN OF KILDONAN
I propose that Clause 8 be removed from this Bill, first on the general premise that radical change in the great volume of crofter law in Scotland should not be made in a Bill of bits and pieces like this, and, secondly, because the existing law governing succession in intestacy is abandoned and crofters are now to be brought under the general Succession (Scotland) Act 1964, although specifically left out of it only four years ago, I presume for very good reasons. As soon as I, at any rate, see this ubiquitous term "Miscellaneous" appearing in the title of a Bill, I become suspicious. This term seems to convenience the Government and their lawyers, but not always the people these miscellaneous laws purport to benefit. Crofter law in Scotland is the result of a century of fierce endeavour, against strong opposition, to protect the small man, the crofter in agriculture, from extermination.
From the period of the Napier Commission, 1886 to 1911, when the security 257 land laws were finally promulgated, there has been continuing special legislation for crofters, The establishment of the Crofters Commission was a recent further advance by Government to help the crofter, though its powers fall lamentably short of those powers recommended for it by the Taylor Report. There is to-day a great volume of crofter law, and if it is desired to alter the major tenets of succession, why include these changes in a Bill which I see now belatedly concerns itself with the law for computers as well as for crofters—surely the most miscellaneous mixture even lawyers could conceive!
Another more serious case against the inclusion of this clause is the lack of consultation with the crofters' unions or the Land Court. On May 14, 1968, the Federation of Crofters' Unions said of meetings with the Crofters Commission:These consultations were not exhaustive; nor (lid the crofter representatives have sufficient time to study the consequences to crofting should the Bill be published in its present form".In a letter dated as recently as May 27, 1968, from the Scottish Land Court, and signed by Harold R. Leslie, Lord Birsay, to the Secretary of the Lochabor Crofters Union it states:Dear Mr. Cameron, I have received your letter dated 24th May. 1968. I fully appreciate your apprehension about the new legislation and possible consequences to crofting tenure. The answers to your questions are: (1) no consultation has taken place with regard to Clause 8 or any other aspect of the legislation".As to the answer to the second question, the letter says:So far as I am aware, no provision has been made in this Bill for a valuation by the Land Court. The only existing statutory provisions relating to the valuation of a crofter's improvement by the Land Court are those set forth in the Crofters Acts of 1955 and 1961, and are exercisable only on the crofter's renunciation or removal from the croft".I pay one tribute to the forthright replies of Lord Birsay. He is trusted, and is regarded by the crofters everywhere as a friend, and I think his words should have weight with the noble Lord the Minister.
In 1955, Lord Gibson, the then Chairman of the Scottish Land Court, said from the Bench that the question of succession was a legal one, and that in being deprived of the services of the Scottish Land Court the crofters were 258 finding that their ancient birthright was in danger of being sold over their heads. Crofting needs not only law reform but also the restoration of the Land Court's right to administer the law. The crofters remaining in the Highlands and Scotland have emerged from a century of penury and persecution. They are now entering an era of constructive attention by Government, and comparative prosperity. I would ask the noble Lord the Minister to at least take back this clause for further consultation over these fundamental issues of succession. Changes to include the widow as first in succession and the illegitimate in the line of succession are beneficial; but, listening to the noble Lord. Lord Drumalbyn, even that situation is not an easy one.
Of the law as it stands just now, the Highland Development Board had this to say in its first Report on the Highlands and Islands in 1967:Bearing in mind all that has been said about the system"—that is, the crofting system—if one had to look now for a way of life which would keep that number of people on such relatively intractable territory, it would be difficult to contrive a better systemThat is the system before its alteration as proposed in this Bill.
Finally, having regard to the accumulated volume of crofter law, it is reasonable to suppose that a full and deliberate study of crofting law—indeed, tenure and succession—is urgently required, so that all existing legislation can be codified, and amended legislation produced which would be of real benefit to the crofter. But if the Government are too busy for this, the present changes envisaged in Clause 8 are surely basic enough to require real consultation and a special Crofter Act if that is found to be necessary. One could find such a Crofter Act after some search in the large department of crofter law. But Clause 8 is pushed into a computerised miscellaneous law reform Bill far removed from the interests of the crofter or his land or his law, and I think it should be left out of the Bill.
§ 5.30 p.m.
§ LORD HUGHES
I must admit that I find it very distasteful to disagree with the noble Lord, Lord Bannerman, but I must confess that as I listened to what he had to say I found it difficult to maintain my ordinary attitude to his remarks; 259 because while much of what he said might very well have been relevant to a eulogy of the late Mr. Gladstone it had very little relevance to the situation we are facing to-day. There is nothing objectionable in the word "Miscellaneous". For a number of years we have sought to deal with minor reforms of the law in a Bill of this kind.
The reason why the crofters are mentioned in the Bill is because the position of the crofter is affected by other aspects of it. At the present time the principle of primogeniture and the preference of the male in succession which was abolished in 1964 in the general law of succession was retained in respect of intestate succession to the tenancies of crofts. We had to consider how this part of the law was to be affected by the recommendations of the Russell Committee. If we leave as it now is the law of crofting succession while at the same time giving effect to the recommendations of the Russell Committee—which we are doing—it would mean that illegitimate children would be given the same rights as legitimate children. There would then he the possibility of the tenancy of a croft passing to an illegitimate son of the crofter (if that son were the eldest son) rather than to the widow or to any subsequent legitimate issue which the crofter might have.
If there is one thing which I am certain that the crofting community would not want it would be that a situation of that kind could develop. But if we leave out Clause 8 there remains this possibility. I would remind the Committee that it is at least more likely than not that the illegitimate son would have been horn before marriage rather than during the marriage; so there is a fair chance that the widow would be deprived of the tenancy of the croft in favour of the eldest illegitimate son. Alternatively, from the law of succession relating to crofting tenancies, we could have disapplied altogether the provisions implementing the Russell recommendation. This, in effect, would mean that there would be no improvement in this field for illegitimate children and would isolate the law of crofting succession even further from the general law of succession.
260 If I had to disagree with the noble Lord, Lord Drumalbyn, on the previous Amendments on the basis that what the Government were seeking to do was to extend to illegitimate children the same position as was given to legitimate children, I could not possibly accept the situation that merely because the father was a crofter the inequality of illegitimate children should be perpetuated in this field. I should be guilty of the grossest discourtesy to the noble Lord, Lord Drumalbyn, if I were to accept that position.
§ LORD BANNERMAN OF KILDONAN
I should make it clear that the crofters do not set their faces against the direct succession of the widow and the illegitimate son being taken in line of succession. I stated that when I spoke. That is not the point which I was trying to make concerning this clause.
§ LORD HUGHES
It matters little what the noble Lord intends to do. We have to deal with what the noble Lord is doing. If the Committee delete Clause 8 from the Bill, as the noble Lord proposes, there will be created a situation where the widow and the legitimate sons can be deprived of the croft because the law of primogeniture will result in the croft going to the eldest son, even though he be illegitimate. We could have created that situation by leaving out Clause 8. Alternatively, we could have said: "No. there is to be only one field in which the illegitimate child is to be subject to disability and that is where he is fathered by a crofter." We thought that wrong.
On this subject of consultation, the Crofters Commission were consulted about this matter; and the noble Lord, Lord Bannerman, has gone out of his way to pay a compliment to them. It seemed to the Government that they were the obvious people to consult on matters affecting the crofters. The advice of the Crofters Commission was that rather than adopt either of the two unsatisfactory solutions to which I have referred, the Bill should abolish the principle of male primogeniture in intestate succession to crofts and bring this part of the law into line with the general law of succession.
261 Clause 8 accordingly applies the provisions of the Succession (Scotland) Act 1964 to the succession to the tenancy of a croft. The main effect of that Act is that in the case of an intestate estate which is less than £2,500 (or, where there is no issue, £5,000) the widow will receive the whole estate including, as the result of this Bill, the tenancy of the croft. Where the estate is greater than these figures the widow is entitled to a £2,500 or to a £5,000 share of the estate. Where there is no widow or where the estate exceeds these limits, the executor will have to choose a successor to the crofting tenancy from among those entitled to a share in the estate and to transfer the tenancy to him or to her towards that share.
The Government are in complete accord with the views of the Commission. We have no doubt whatever that this provision is superior to the present situation where the heir-at-law may well take over the tenancy of the croft to the exclusion of the widow. Reverting to this question of consultation, the Crofters Commission panel of assessors were brought into account. The Crofters panel was recently reconstituted in all the areas where there are grazings committees (that is, in almost all the main crofting areas) and the committees elected their representatives for the area to the panel of assessors. As some noble Lords may know, and as the noble Lord, Lord Bannerman, must certainly know, the grazings committees themselves are elected by the crofters of the township and are, perhaps, the smallest unit of democratic government to be found anywhere in the world.
Since there are grazings committees in the vast majority of the crofting areas, and certainly in almost all the main crofting areas, your Lordships will appreciate why I feel able to assure you that the explanation of the provisions of the Bill which have been made to the grazings committees can be regarded as a true reflection of the crofting position. I understand that at the most recent meeting of the Federation of Crofters' Unions in Inverness they expressed no objections to the basic provisions of the Bill, although they had reservations on certain aspects of it.
A long time has been spent on this question of consultation and, as happens 262 in any case of consultation, we have had criticism in the other place about what the Government have done—despite the fact that we consulted the body whose statutory duty it is to advise the Secretary of State on crofting matters. I am not aware that any consultations which were undertaken by the Government of the day in 1964 have not been again undertaken by the present Government. There are enough difficulties in the Highlands for any Government without the Government going out of their way to make difficulties. The one thing we know is that there should be consultation and that it should be on the widest possible basis. This is what the Secretary of State did. We are satisfied that we are doing the right thing.
If I may, I will sum up what the clause as it stands does. In essence, the State is trying to make a will for the crofter who dies intestate. The question is whether the will that the State will make as a consequence of present legislation is better than the will which the State makes under the law as it stands at present. I am advised that in the large majority of cases the bulk of the crofter's estate consists of the croft, and the most important asset there is the croft house. The kind of will it is proposed that the State should now make gives the primary estate to the widow. Then, apart from the widow, the remainder of the estate is divided equally among the members of the family or relations nearest to the crofter. The Crofters Commission, my right honourable friend the Secretary of State and I are in no doubt 'whatever that this proposed new will that the State will make will be an improvement on the present situation, in which the widow may very well be omitted altogether, and where, so far as the croft is concerned, one person among the members of the family is picked out to have the lot.
I think this is the first time I have had occasion to disagree with the noble Lord, Lord Bannerman of Kildonan, for a long time. It may not be the last—although I sincerely hope it is—but your Lordships will agree that if I had to choose a subject on which to disagree with him I could not have disagreed more fundamentally.
§ LORD BANNERMAN of KILDONAN
I thank the noble Lord, Lord Hughes, for his exhaustive answer, 263 but he has not referred to the consultation aspect as fully as perhaps he should have done. The Land Court is the judicial body in Scotland concerned with the valuation, if you call it so, of the croft—though it is not a valuation at all, as it would seem to be in this Bill, but merely a claim to improvement. This claim has to be assessed by the Land Court as the judicial body, not by the Crofters Commission. It would appear to be a serious omission from this Bill and this clause that there is no reference to the Land Court, although it is clearly concerned with the bequest of the crofter. Surely, so far as the croft is concerned, there can be no capital value, but merely a claim to improvement.
I would impress on the Committee that, as the noble Lord himself has said, this is not an easy matter of law. It is a most complicated matter even to discuss legitimacy in a Bill, and to throw this matter into a very controversial sphere and branch of law, the crofter law of Scotland, is to invite tremendous difficulties. The Land Court cannot assess a claim to improvement on a croft until the croft is renounced, or the crofter removed. So far as I can see, there is no reference at all to this. Lord Birsay, the Chairman of the Land Court, the judicial Court concerned with succession in crofts, says that there has not been any consultation about this. Surely the Government and the Minister should take cognisance of his viewpoint and at least agree to take back this clause and look at it again, so placating a great deal of worry which is prevalent throughout the Highlands concerning this clause.
§ LORD HUGHES
I must completely repudiate the suggestion that there is a great deal of worry throughout the Highlands about this clause. All the evidence the Government have is that the crofters accept this position. According to the information which I have been given, at their most recent meeting those on whose earlier proceedings the noble Lord, Lord Bannerman, is relying did not maintain their attitude when they fully appreciated what was the position.
I cannot possibly agree to the deletion of this clause without knowing what is to go in its place. I must repeat, for the benefit of the noble Lord. Lord Banner 264 man, what the consequences would be. If I take out this clause, the position would be that a widow could be deprived of the tenancy of a croft. The noble Lord has said that is not what he wants to do, but the onus is not on me to take out of the Bill a clause which deals satisfactorily with the position and then to find something else to put in its place. If the noble Lord wishes to do something quite different from his present motion, it is for him to work out what he proposes to do. I have pointed out that what he seeks to do is totally unacceptable. He must work out his own salvation, and I suggest that this would be achieved by his going back to the Federation of Crofters' Unions, and I am certain that if he does so he will find that he is flogging a dead horse.
§ LORD DRUMALBYN
May I get the point clear? If I may put it in a colloquial way, this question of adapting the succession in croft to the Succession (Scotland) Act has been "knocking about" for quite a long time, and it seems rather strange if, in the course of all that "knocking about", the Chairman of the Land Court has not been consulted. I should have thought it would satisfy my noble friend if the Chairman of the Land Court were consulted to see whether there are any points arising out of this on which he could help, and on which it would be possible to introduce an Amendment if necessary—we do not put it any higher than that—at the next stage of the Bill. It seems to me that is all my noble friend is asking for. He has raised it in this form as the only way in which he could raise it because of the great complication of the matter. I suppose it would have been possible for him to consult Lord Birsay, but I think it would be less appropriate for him to do so than that the Government should do so—if indeed they have not already done so. Perhaps the noble Lord could clear up this point.
§ LORD HUGHES
I should be very surprised to discover that when this matter was last considered in 1964 the then Government found it necessary or desirable to consult the Land Court in this matter. The obvious body to consult is the body which looks after the interests of crofters; that is the Crofters Commission, and through them the direct 265 representation of the crofters. The Land Court is concerned with the valuation of crofts. It is a judicial body which assesses compensation when a crofting tenancy is renounced. There is no need to have a special provision for valuing crofts on death. There is machinery for doing so, as there is for estate duty purposes or in connection with compulsory acquisition. None of these has presented any difficulty. We have not had to create special machinery in relation to this situation. There is no greater difficulty at the present time in settling a crofter's estate than there will be in the future. The suggestion is that we should have consulted the Land Court. Consulting the Crofters Commission as I have suggested, is the next best thing to consulting individually every crofter in the Highlands. I do not see how we could possibly carry consultation further than that.
I have no objection to finding out, between now and the next stage, whether in the past the Land Court have ever been consulted on a matter of this kind and whether the Chairman of the Land Court thinks that an illegitimate son should have preference over a widow. But we are being asked to take something out of the Bill and I am pointing out that I find the consequences of taking this clause out to be totally unacceptable. Therefore I advise your Lordships to let the clause remain.
§ LORD BANNERMAN of KILDONAN
Is it not possible then for us to have an Amendment to this clause produced at the next stage, as the noble Lord, Lord Drumalbyn, suggested, and that in the meantime those who complain, whether rightly or wrongly, that they have not been consulted, should be consulted? The representatives of the crofters are the unions, not assessors appointed by the Crofters Commission.
§ LORD HUGHES
The noble Lord should at least do me the justice of listening to what I say. The present assessors are not appointed by the Crofters Commission: they are elected. And what can we do better than to consult the elected representatives?
§ LORD BANNERMAN OF KILDONAN
I am asking that the crofters' unions, representing crofters throughout the Highlands, should be con 266 sulted and not just the selection of crofters that the Crofters Commission might have. Apart from that, surely the Land Commission, as a judicial body determining the amount of money to be distributed among the succesors—the widow, the illegitimate son or otherwise—should be consulted on this matter. They are very much concerned about bequests.
§ LORD HUGHES
The noble Lord started by asking me whether it was possible to have an Amendment. Almost anything is possible in your Lordships' House. What I cannot guarantee is that the noble Lord will be successful in finding an Amendment which will be preferable to what we have in the Bill. For my part, I am content with what is in the Bill. I think that it is good. I have grave doubts about whether it is possible for the noble Lord, even with consultation with the Federation of Crofters' Unions, to find a better one. But if, after further consultation, he can find a better one, I shall be delighted to look at it. I merely cast doubt on the likelihood that this will be possible.
§ On Question, Clause 8 agreed to.
§ Clause 9:
§ Rule requiring corroboration not to apply in certain civil proceedings
§ 9.—(l) Subject to subsections (3) and (4) of this section, any rule of law whereby in any civil proceedings evidence tending to establish any fact, unless it is corroborated by other evidence, is not to be taken as sufficient proof of that fact shall cease to have effect, and accordingly, subject as aforesaid, in any civil proceedings the court shall he entitled, if they are satisfied that any fact has been established by evidence which has been given in those proceedings, to find that fact proved by that evidence, notwithstanding that the evidence is not corroborated.
§ 5.54 p.m.
§ LORD REID moved, in subsection (1), to leave out "subsections (3) and (4)" and insert "subsection (3)". The noble and learned Lord said: There are five Amendments on the List in the names of my noble and learned friend Lord Guest and myself. The second is the substantial one; the other four are consequential. Accordingly, it may be convenient that I should discuss the second one and that the others should stand or fall with it. I raised this matter on Second Reading in order to give adequate notice of the point which I intended to make, and I 267 shall only restate briefly the point I had in mind.
§ Corroboration is a somewhat technical subject. It means that a case cannot be proved with the evidence of one witness alone. There must be a second witness to the essential facts, or something in the nature of circumstantial evidence, built up by the general picture which the evidence paints, so that the story of the single witness appears to the court to be more consonant than not with the rest of the evidence as disclosed by the rest of the case. That is not an onerous requirement. The problem in cases of corroboration is this. If we loosen the law we may let in one or two cases where a man is telling the complete truth but cannot get any support anywhere, either circumstantial or otherwise, but, on the other hand, we may create the risk that somebody will succeed when he should not succeed. He might be a deliberate liar but it is much more likely that he is a witness who has persuaded himself that something, which is in fact untrue, is true. Everybody with any experience of the law knows that that happens.
§ The question is: what is the best solution? This is a matter which comes within the general law of evidence, and the Law Commission very properly took as one of their early subjects the general examination of the law of evidence. They gave priority to it and they were right. It is here, above all things, that it is essential that there should be proper consultation between the Commission and those who practise the law. Here, more than in any other chapter of the law. theory must give way to practice. And the only way to assess practice is to have the widest consultation with those who have day-to-day practice in the courts. Sometimes it is said that the advice of practising lawyers is biased to some extent, but that cannot possibly be said here, because the profession cannot get anything out of retaining the present situation as against the change.
§ That being the position, the Law Commission received certain information or representations and thought that there was a special case for urgency in altering the present law with regard to one—and only one—chapter of the law; namely, actions for damages for personal injury. 268 Very properly they consulted all the legal bodies on that narrow question. They received, it is true, unfavourable replies, but they did consult and did all that was proper. Unfortunately, in the course of some representations objecting to the change a false point was taken. It was said that if we dealt with this matter as a single small chapter by itself we should create anomalies. It is perfectly true that in theory one can imagine cases where this would create, not anomalies, but certain difficulties which would require some care on the part of the judge who was hearing the case in order to separate it up, but such a case is not going to happen once in five years. This is purely a theoretical objection. To my mind, if one or two cases did happen, what would it matter?
§ The alternative has been most unfortunate. The Law Commission were apparently impressed by this theoretical objection and decided that it would be better to avoid it by greatly widening the scope of their first proposal. So far, so good. But then they absolutely failed to consult anybody about that much wider proposal. I have gone into this matter; I have had letters, and one thing and another, and I have not a scrap of information to show that anybody at all outside the walls of the Law Commission was consulted about widening the small proposal to alter the law with regard to actions for personal injury to cover the whole of the civil law, with one exception which I shall come to in a moment.
§ This has created the utmost dissatisfaction in the legal profession. In the Second Reading debate I read out to the House excerpts from two letters, one from the President of the Law Society and one from the Dean of Faculty. In the course of the letter from the Dean of Faculty he said that the Lord Advocate and the Law Commission had agreed that there had not been adequate consultation. The Lord Advocate has sent me a letter in which he objects to that and says that he has never so agreed. I accept that at once. But he has said things which have made it perfectly plain that there was no consultation. Let me read out the first paragraph of the Minute which was settled with regard to the meeting at which all these bodies met together in 269 order to arrange a better system for the future. Why it should have been necessary to have a meeting to arrange for a better system for the future if all had been well up to date, I just do not understand.
Be that as it may, here is what was said by the Lord Advocate:
The purpose of the meeting was to discuss the question of consultation on reforms in the law proposed or to be proposed by the Law Commission.
He referred to the case of
corroboration in which the Commission had only informed itself with the Faculty of Advocates and with the Law Society of Scotland in connection with a proposal which was different from that ultimately submitted to Ministers.
That is all argument. It was a very different proposal; and, in fact, there has been no consultation. It does not matter whether the Lord Advocate agrees or not. If he says that he does not agree, I accept that implicitly. But the fact remains that there was no consultation. Why not?
§ What is the position to be? If this Bill goes through, is it to be a final settlement of the law of Scotland, so that there is to be no going back on it because it is something which has been determined; or is it a purely interim measure awaiting a further measure later on? If it is a final measure, then I must insist on my Amendment and seek to divide the Committee. But if it is not a final measure, what is it? What is the point in making a much bigger bite than the one about which there was consultation? I do not understand why we should not go back, as my Amendment proposes that we should, to the point on which there was proper consultation. That is the only point that the Law Commission had in mind before it was suggested to them that they should make a wider change. If any point has any urgency, that is the only point which has urgency. Why make it any wider? really do not understand.
§ What the Commission have done is very odd indeed. They have extended this provision to all civil evidence except consistorial actions, actions of affiliation and alimony, and proceedings in a juvenile court. How can anybody draw a line there? For generations the courts of Scotland have been trying to ease the position with regard to actions of affiliation and alimony. If there was to be 270 a change at all, I should have thought that that must come right at the top of the list for a change. But that has been left out. Anybody who knows anything about the practice of divorce knows quite well that thin cases get through in the divorce court just as much as they do anywhere else. Looking to the way the law is administered, why on earth have actions about property, contracts, trusts and all the rest of it, in so far as oral evidence will prove them, had the law altered in respect of them, and not these other matters which are just as clamant? I do not understand it.
§ Therefore it seems to me that if this is a final decision, it is a very bad one. If it is not a final decision, the line has been drawn entirely in the wrong place. It would be much better if we dealt with the matter logically and restricted our change at the moment to that change about which there has been consultation, leaving for further consideration the other, much wider, change about which there has been absolutely no consultation. That is the purpose of my Amendment. I do not intend to say any more about the merits of the matter, because I think my noble and learned friend Lord Guest will probably wish to say something. I beg to move.
Page 6, line 8, leave out ("subsections (3) and (4)") and insert ("subsection;3)").—(Lord Reid.)
§ 6.7 p.m.
§ LORD GUEST
It is not disputed that Clause 9 makes a substantial alteration in the law of Scotland. The law of corroboration is firmly embedded in our legal system and has existed for hundreds of years. I do not intend to elaborate on the explanation of the doctrine which has been given by my noble and learned friend Lord Reid. I should add, however, that it is probably the most important principle in the law of evidence, because it arises in every single, what you call in England, witness action. In every proof, and in every jury trial in which witnesses are heard, the question of corroboration arises. I had always thought until now that it was a salutary safeguard against unreliable or dishonest evidence. As your Lordships have been 271 told, Clause 9 arises from a recommendation of the Scottish Law Commission, who, according to their Report,are engaged on a review of the whole law of evidence with a view to its reform and modification".One would have thought that in those circumstances the Government would have awaited that general review and not made what must at best amount to a piecemeal modification of the law.
The justification which is given by the Scottish Law Commission of urgency is that injustice occurs in actions of reparation due to the failure to obtain corroboration; and it is said that a number of these actions have failed due to lack of corroboration. I have spent 35 years in the law in Scotland, partly at the Bar and partly on the Bench, and I have never heard any criticism until now of the law of corroboration. I have never heard of any agitation; I have never known a case in which I have had to advise a pursuer that he had no case because there was no corroboration. It is easy to imagine how simple it can be in cases to obtain sufficient corroboration; that is to say, not another witness, but some fact or circumstance which makes the evidence of that witness more consistent with his case than any other. If there is such a number of cases, I suggest it is comparatively recent and that the cases are comparatively few.
I would remind your Lordships that when it is said that an injustice is done to a pursuer because he has not got corroboration, that is really begging the question, because until the case is tried and until the jury or judge determine no-one can tell who was telling the truth. It may well be that injustice to a defender has been prevented by the necessity for securing corroboration. The case therefore made out on the Commission's Report is for urgency in actions of personal damage, personal injuries. If that is so—and I take up the point made by my noble and learned friend Lord Reid —there is no suggestion in the Report or in any other publication that the injustice occurs in any other cases at all except personal accidents and personal damage. why, I ask, extend it to all civil proceedings?
The reasons, apparently, given by the Law Commission for extending it are two in number, and I should like to read, 272 in the first place, paragraph 16 of their Report, which starts off in this fashion:We have already indicated our view that the law of corroboration requires immediate reform. Any serious and unexpected difficulties or anolomies to which that reform may give rise can be dealt with as opportunities occur and as the branches of law in which they arise become the subject of examination".I read that to mean that the Law Commission are saying: "Let us have a trial run of corroboration in all cases, and then we will see by the time we come to our general review of the law of evidence whether there are any difficulties or anolomies". It strikes me that that is a most extraordinary method of procedure: throw the matter into the melting pot and then see, after you have tried it out, whether it works or not. I should have thought it would be better, and I suggest it should be better, to wait and deal with the matter in the large way after they have reviewed the matter generally.
The next matter which is referred to, and was referred to by my noble friend Lord Hughes on the Second Reading of this Bill, is the difficulties and anomalies which it is said the modest proposal made in this Amendment would cause. I just do not see these difficulties occurring at all. In the first place, it is suggested that where an action of damages for personal injuries and for damage to a motor car occurs, then there may be a different standard of proof. I never, in all my experience in Scotland, raised an action for a pursuer concluding for damages for his personal injuries and his motor car, for the simple reason that in every case where insurance companies are involved there is a "knock for knock" agreement and you do not include the damages for the motor car: so that is not a case of difficulty or anomaly.
Then it is suggested that there may be a difficulty or anomaly in a case of professional negligence; that is to say, where a solicitor fails to raise an action due to negligence and the client suffers loss. In that case there is no difficulty about it. The action of damages for personal injuries would require only one witness, and the claim for professional negligence would require two witnesses. There is no difficulty at all. In fact, our procedure, which is by means of pleas in law, would advise the judge before 273 the case came to trial. If this question arose it would be a case which would be tried by a judge and not by a jury; and I really cannot see that there would be any difficulties at all in having these two different standards of proof.
The last matter, which of course has already been referred to by my noble and learned friend Lord Reid, is that the legal profession in Scotland are opposed to this general change in the law; and one would have thought that their advice might have been accepted by the Government. Therefore, I suggest to the Committee that it would be wiser (would it not?) to take the modest step which is suggested by this Amendment and wait for the Commission's Report on the general law of evidence before making such a radical change.
§ 6.15 p.m.
§ LORD HUGHES
These Amendments propose that the abolition of the requirement of corroboration should be limited to personal injuries cases. I do not want to weary your Lordships with a repetition of the reasons which I have already given at Second Reading why the Government are of the view that the requirement of corroboration as a sine qua non in civil proceedings is wrong and should be abolished or of the social considerations that have led them to include this clause in this Bill. I would only remind your Lordships that it is the requirement of corroboration as a sine qua non which is being abolished; that is not to say that corroborating evidence will never be called for in future. It is a rule of law that has not been found necessary in any other Western country, with the exception of Portugal. As an unnecessary rule of law so far as it has effect it is likely to come between the court and the best decision to be reached in all the circumstances of the case before it.
One of the principal reasons for the putting down of these Amendments was the question of consultation. It is true, as the noble and learned Lord, Lord Reid, has said, that the Law Commission consulted the Faculty of Advocates and the Law Society about a proposal to abolish the requirement of corroboration in personal injuries cases. The arrangements for these informal consultations were agreed previously with the two bodies concerned. They did not again 274 consult them before they submitted their Report recommending its abolition over the generality of civil proceedings. But the question must be considered whether or not there has been ample opportunity for those concerned with the working of the law in Scotland to study the proposals and their effects. If there has, then I cannot think that your Lordships should be asked to refrain from making a useful change in the law because it is suggested that, at an earlier stage, some different course of consultation should have been pursued.
There has been this ample opportunity. The Law Commission's Report was published in April, 1967, and the Government immediately announced that they were considering it with a view to legislation and would welcome views on it. That is over a year ago. The Government have had useful memoranda on the subject from the Faculty of Advocates, the Writers to the Signet, the Royal Faculty of Procurators in Glasgow and the Glasgow Bar Association. The noble and learned Lord, Lord Reid, was good enough at Second Reading to accept that consultation does not necessarily mean acceptance of the views of those consulted. I agree that a substantial body of legal opinion in Scotland is opposed to the abolition of the requirement of corroboration—alike in the field of personal injuries and in the wider field. But, despite the ample opportunity for study of the extended proposals since the publication of the Report, none of the legal bodies who have commented have brought out any practical working difficulties—granted that the requirement of corroboration is to be abolished—in its abolition over the wider field.
I accept, of course, that apprehensions have been expressed—the noble and learned Lord, Lord Reid, touched on this himself—about the possible effect of abolition, relating it to the periods of prescription under Scots law and the possibility that litigants will be put at risk in actions in respect, say, of old contracts and old property rights. I think that too much can be made of this risk. If there has been unreasonable delay in raising an action the standard of proof required to establish any part of it increases, and the courts would in any case be slow, on the evidence of a single 275 witness, to disturb a long-standing situation. There is also the point that this clause will in no way encourage the use of a single witness where other evidence is available. Again, the court would be slow to accept the party's case if other evidence was available or likely to be available and there was no adequate explanation of why it was not led. I do not think that these apprehensions are any substantial argument against the clause.
However, the Commission's consultations elicited one practical difficulty about their original limited proposals which they felt it impossible to ignore. This, of course, has already been referred to by the noble and learned Lord, Lord Reid, although he disagreed with the conclusions which the Commission drew from it. The members of the Bar who commented when the Faculty of Advocates was consulted made strong objection to a proposal to abolish the requirement of corroboration which was confined to damages for personal injury. It was they who drew attention to the fact that in actions based on delict the same delict frequently gave rise to damage to property which was greater than personal injuries If a pursuer wishes to claim damages both for personal injury and for damage to property, with both claims arising out of a single event, are two different sets of evidential requirements to apply in a single action? Is it tolerable that the pursuer might succeed in one claim and fail in the other for lack of corroboration? Is think it is fair to say that it was this objection which led the Commission away from their original proposal in a limited field to their consideration in principle of the requirement of corroboration in civil proceedings and their later proposal for its abolition.
This is a practical objection, not a hypothetical one. No one can deny that cases of joint claims for personal injury and damage to property do occur. My own Department has to deal with them, for example, in actions where it is alleged that the condition of the road is responsible for a car crash. I do not make any claim about the frequency of such cases. The noble and learned Lord, Lord Reid, did not say that they would not arise; he said that they would be infrequent and that there might not be more than 276 one in five years. But since this has resulted from the objection made by the profession which the Law Commission has found to be one of substance it would be quite wrong for the Government to ignore it. For this reason, I must advise the Committee against accepting the Amendments proposed by the noble and learned Lord, Lord Reid.
I have been asked by the noble and learned Lord whether this is an interim measure. It is certainly not a final measure. I have explained to the Committee why the Government regard the requirement of corroboration as a sine qua non as wrong in principle; that is the Government's firm view on the subject. But as the noble and learned Lord has stated, the Law Commission are at present engaged in a full review of all aspects of evidence, both in civil and criminal proceedings, with a view to producing a comprehensive code on the subject. In that review all possible aspects of evidence, including corroboration, will be open for consideration. The Government will certainly look with an open mind on any proposals that come out of that review.
Since I am speaking of possible further legislation, I might refer to consistorial actions, on which the noble and learned Lord merely touched. The Government have sympathy with the view that the requirement of corroboration should also be abolished in all, or at least in most, of these proceedings. They are not included because this is not a final measure. The Law Commission were not at the stage of reaching any conclusion on the question of the requirement of corroboration in criminal proceedings, which may well be found to raise quite different considerations. When they came to consider consistorial proceedings they found—a difficulty which does not arise with the civil proceedings dealt with by this clause —that the standards of evidence in consistorial proceedings were to some extent influenced by those in criminal proceedings.
§ LORD HUGHES
It may well be, but I can assure your Lordships that it is new to me. I think your Lordships will appreciate that, particularly with my right honourable friend, the Lord Advocate, 277 sitting on the Steps of the Throne, I must stick closely to the brief which is agreed both by my own Department and by the Lord Advocate, and I am certainly not departing from the wording when it is on strictly legal aspects.
I appreciate that there is room for argument about the extent and importance of this influence; but it cannot be denied that it exists. In these circumstances, the Law Commission took the view that they would not be justified in bringing consistorial proceedings within the scope of their recommendation until they had had time to consider corroboration in criminal proceedings and its effects on consistorial proceedings. The Committee will no doubt accept that since, for this reason, no detailed consideration has been given to the requirement of corroboration in consistorial proceedings, the Government would have been unwise to include such proceedings in this clause.
I think it was also the noble and learned Lord, Lord Reid, who spoke of actions of affiliation and aliment in juvenile court proceedings, and I am advised that these actions are excluded for the same reason as the consistorial proceedings were excluded. I was asked for an assurance that the legal profession would be consulted and have an opportunity for discussion and the expression of views during the preparation of the proposed full code of evidence. I should perhaps interject here, on the subject of consultation generally, that, in the light of the experience gained from the controversy over these proposals, a meeting was convened by the Lord Advocate at which the Law Commission and representatives of the legal profession and the Scottish Office had a full and useful discussion on the machinery of consultation in respect of future proposals by the Commission.
So far as consultation on this subject of evidence is concerned, I can give both the noble and learned Lords, Lord Reid and Lord Guest, the assurances for which I have been asked. The Law Commission have asked me to say it is their intention that there should be consultation under the new arrangements as part of their full review of evidence, and that there will be ample opportunity, in accordance with these arrangements, for consideration of the rules relating to 278 corroboration as part of the whole law of evidence.
I have said why the Government believe that the clause as it stands is justified. I have explained the practical difficulties to which the Government must have regard in their attitude to the Amendments put down by the noble and learned Lord, and I have given assurances about the position of future proposals on this subject and about future consultation on the review of the law of evidence. I hope that, in the light of what I have said, the noble and learned Lord will find it possible not to press his Amendments.
§ 6.29 p.m.
§ LORD DRUMALBYN
It is difficult for a layman to intervene in what are essentially legal matters, but I think my noble and learned friends and I would certainly feel that the procedure which has been adopted, and indeed the arguments in support of that procedure, are both most peculiar. There seem to be three courses open. The first is that, as the Amendment says, we limit the change to that section of the civil law where there is said to be urgency. This seems to be a sensible suggestion. Then it is said that this will give rise to some practical difficulties, which is generally admitted, though the amount of those practical difficulties seems to be in some dispute. The noble Lord, Lord Hughes, and his Department seem to think that these practical difficulties can arise fairly frequently, while the noble and learned Law Lords who have spoken think that they are unlikely to arise at all.
§ LORD HUGHES
I think I would be being unfair if I allowed it to proceed on the basis that I said it would arise frequently. I said I was not prepared to argue about its frequency, but I said the noble and learned Lord, Lord Reid, had said it might be about once every five years. I did not venture to give a frequency myself at all.
§ LORD DRUMALBYN
At any rate, this is the proposition. The second proposal is that over all civil cases now, with the exception of the consistorial and affiliation cases, we should make this change in the law, about which it is admitted that there was not full consultation, and the noble Lord gives assurances about consultation in the future. The 279 third proposal is that we should wait until the Law Commission has carried out its inquiries into the effects on criminal as well as civil cases and then at that stage we should cover the whole area of corroboration. I should have thought that common sense would indicate that the Government were unwise to make up their mind on the general principle until they had had experience in the matter which is giving rise to the greatest urgency. I should have thought, speaking as a layman, that the sensible thing, if it is at all practicable, is to make a change in one sector and see how it works in the particular conditions of Scotland, given the legal traditions in Scotland. That is what we ought to do, and not for the Government to make up their mind that this is a useful change that they have determined upon, without consultation, and carry it out over the whole field of civil law except in the case of consistorial and affiliation actions. I should have thought this was all the more so as the Law Commission has not yet completed its study of the effects on criminal actions.
I should have further thought that if we do this now in so far as civil actions are concerned over the wider field the Government want, it is virtually certain the Government will later come along and say that this will apply also to all criminal actions. I should have thought that this was bound to be so. I do not think that we ought to prejudice the case in this way. It would be very much better to limit it to the particular area about which consultation took place and which is said to be the area of urgency. I hope that the noble Lord will agree to accept the advice of those who are so very experienced in these matters, rather than rely only on the advice of the Law Commission. It seems, on what we have been told, that, by and large, the legal profession does not share the Law Commission's view on this subject and, that being so, it would be discretion on the part of the Law Commission to say, "If you do not accept this, let us do it in the area in which there is special difficulty now". That would be the sensible course.
§ LORD HUGHES
The only point of comment I wish to make on what the noble Lord, Lord Drumalbyn, has said 280 is in regard to the danger he envisaged that the acceptance of this clause as it stands would lead on inevitably to the acceptance of this principle in criminal proceedings. In the notes from which I read I was very careful to emphasise that there were very different considerations in relation to criminal proceedings and that the Government did not feel that anything which was done on civil proceedings necessarily gave any guide to what the Government would do in relation to criminal proceedings. I must emphasise that.
THE EARL OF MANSFIELD
Not necessarily; but surely it is a logical sequence that if one is put into effect the other will be later on.
§ LORD HUGHES
Not at all. If one is considering different circumstances it could be illogical to arrive at the same conclusion. If you are considering two sets of circumstances which are the same it is logical to arrive at the same conclusion, but if you are considering different circumstances it would be illogical.
§ LORD REID
I find this position most astonishing. The Government know that the great bulk of the profession support the necessity for corroboration, and yet they make up their mind as a matter of principle that corroboration is bad, without having given the profession a chance of stating their reasons. For these reasons I can do nothing else but support this Amendment in the Division Lobby.
§ THE EARL OF PERTH
As a layman, even more hesitant on these things, I feel that the Government ought to consider accepting this Amendment. I have tried to understand it. I remember that the noble Lord a short while ago, when answering the noble Lord, Lord Bannerman of Kildonan, said it was a principle that one should consult on the widest possible basis. I know he was talking about the Highlands. If that is true of the Highlands, why is it not true of Scotland as a whole? Here we have something of major importance for Scotland, and yet the Government admit that, without having consulted, they have decided to do something which is going to affect the whole of Scotland, which is going against the advice of two noble and learned Scottish Lords to whom we must listen with the greatest possible respect.
We are told that there is shortly to be a general review and that then it can be 281 looked at again; if there are some anomalies they can be corrected. That is the wrong way round. Do not bring in an important change now and then afterwards, if it does not work, say, "We will make an amendment here and there". Do the most limited damage, if it is damage, on the case of urgency now, and let the other wait for the full report. I feel sure that any others of your Lordships who are laymen must have the same sort of feeling as I have on this particular matter.
§ LORD HUGHES
On this point I think the noble Earl, Lord Perth, does the Government injustice, quite unwittingly. He has confined his remarks on consultation to what took place before the Law Commission submitted their Report. Whether or not the Law Commision undertook adequate consultation, there can be no dispute at all that the Government gave perfectly full opportunity for the expression of views to the whole of the legal profession. Their Report was submitted in April, 1967, and here we are legislating on this matter in the spring and summer of 1968. The views of the legal profession were made known to the Government. If we had acted immediately we received the Report and produced these proposals before receiving the views of the profession, we should in fact have been guilty of doing the thing of which the noble Earl, Lord Perth, has accused us. But the Government did not do that. We received all those views and, having received them, decided to act on the views of the Law Commission rather than on the views of the legal profession. That may or may not be a proper way to do it in the view of any individual, but it is obvious that the Government cannot properly be accused of having failed to consult on the matter.
As I pointed out, if you ask people for advice and find you have to accept the advice, you are not in fact receiving advice; you are receiving orders. We sought advice. We sought the opinions of the profession. We received that and weighed it against the opinion, the advice
§ which had been given by the Law Commission, and we elected to act on the Law Commission's advice. That is a perfectly fair statement of the position, and the position is not as the noble Earl has, I think quite unwittingly, represented it.
§ THE EARL OF PERTH
I certainly should not wish to misrepresent the Government's position, but the fact is, as I understand it, that the feeling has been that this method of consultation was so unsatisfactory that there has been consultation subsequently so that in the future things should be better done.
§ LORD STRATHCLYDE
In view of all the circumstances, would it not be wise to await the Report of the Royal Commission?
§ LORD HUGHES
All I can say further on the matter is that my right honourable friend the Lord Advocate has sat on the Steps throughout the whole of these proceedings, and I have no doubt—
I think that, unwittingly, the noble Lord is breaking a custom of the House in referring to someone who is sitting on the Steps, however distinguished he may be.
§ LORD HUGHES
I am grateful to the noble Viscount for not drawing my attention to that fact earlier, so that at least I got the information over. I apologise for infringing the custom of the House. I do not know how I can usefully draw attention to the fact, but I can refer to the Lord Advocate. I have no doubt that, in the circumstances to which I have improperly referred, the Lord Advocate is fully apprised of the consideration which your Lordships have given to this proposal, and I should be most surprised if he did not have further consultations with me in future. Once again, I apologise to your Lordships.
§ 6.41 p.m.
§ On Question, Whether the said Amendment (No. 8) shall be agreed to?
§ Their Lordships divided: Contents, 43; Not-Contents, 27.283
|Atholl, D.||Burton, L.||Craigavon, V.|
|Auckland, L.||Cohen, L.||Cullen of Ashbourne, L.|
|Audley, Bs.||Conesford, L.||Daventry, V.|
|Boston, L.||Cork and Orrery, E.||Dilhorne, V.|
|Drumalbyn, L.||Jessel, L.||Redmayne, L.|
|Dundee, E.||Killearn, L.||Reid, L. [Teller.]|
|Elliot of Harwood, Bs.||Mansfield, E.||St. Aldwyn, E.|
|Falkland, V.||Mar, E.||Sandys, L.|
|Glasgow, E.||Merrivale, L.||Sempill, Ly.|
|Goschen, V. [Teller.]||Milverton, L.||Somers, L.|
|Grimston of Westbury, L.||Monckton of Brenchley, V.||Strange of Knokin, Bs|
|Hanworth, V.||Nugent of Guildford, L.||Strathcarron, L.|
|Hawke, L.||Perth, E.||Strathclyde, L.|
|Hodson, L.||Rankeillour, L.||Vivian, L.|
|Addison, V.||Garnsworthy, L.||Moyle, L.|
|Beswick, L.||Hill of Wivenhoe, L.||Plummer, Bs.|
|Birk, Bs.||Hilton of Upton, L. [Teller.]||Rowley, L.|
|Bowles, L.||Hughes, L.||Serota, Bs. [Teller.]|
|Burden, L.||Kennet, L.||Shackleton, L.|
|Crook, L.||Latham, L.||Sorensen, L.|
|Douglass of Cleveland, L.||Leatherland, L.||Strabolgi, L.|
|Fiske, L.||Longford, E.||Strang, L.|
|Gardiner, L. (L. Chancellor.)||Mitchison, L.||Willis, L.|
On Question, Amendment agreed to.
§ Resolved in the affirmative, and Amendment agreed to accordingly.
Page 6, line 9, leave out ("civil proceedings") and insert ("action of damages for personal injury").—(Lord Reid.)
§ Amendments moved—
§ Page 6, line 12, leave out ("civil proceedings") and insert ("such action").
§ Page 6,line 15, leave out ("those proceedings") and insert ("that action").
§ Page 6,line 20, leave out subsection (3).—(Lord Reid.)
§ Clause 9, as amended, agreed to.
§ Clause 10 agreed to.
§ Clause 11 [Findings of adultery and paternity as evidence in civil proceedings.]:
§ On Question, Whether Clause 11 shall stand part of the Bill?
§ LORD DRUMALBYN
I should like to ask a question about affiliation proceedings here. The Russell Committee recommended in paragraph 39:We cannot regard affiliation orders as sufficiently reliable to be taken as conclusive proof, for the purposes of succession, of paternity."—284 I am not certain how far this clause would make for conclusive proof for the purposes of paternity.
§ LORD HUGHES
Perhaps the noble Lord would forgive me if I defer an answer on that point to a later stage. He did not give me any notice of his intention to raise it, and this is a somewhat complicated matter. Rather than chance my arm I should like to have a completely legally backed answer to this question.
§ Clause 11 agreed to.
§ Clause 12 agreed to.
§ 6.52 p.m.
§ LORD HUGHES moved, after Clause 12, to insert the following new clause:
§ Admissibility of statements produced by computers
§ ".—(1) In any civil proceedings a statement contained in a document produced by a computer shall, subject to the provisions of section (Procedure) of this Act, be admissible as evidence of any fact stated therein of which direct oral evidence would be admissible, if it is shown that the conditions mentioned in subsection (2) of this section are satisfied in relation to the statement and computer in question.
§ (2) The said conditions are—
- (a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by any person;
- (b) that over that period there was regularly supplied to the computer in the
285 ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;
- (c) that throughout the material part of that period, the computer was operating properly or, if not, that any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and
- (d) that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.
§ (3) Where over a period the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in subsection (2)(a) of this section was regularly performed by computers, whether—
- (a) by a combination of computers operating over that period; or
- (b) by different computers operating in succession over that period; or
- (c) by different combinations of computers operating in succession over that period; or
- (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,
§ (4) In any civil proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say—
- (a) identifying the document containing the statement and describing the manner in which it was produced;
- (b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer;
- (c) dealing with any of the matters to which the conditions mentioned in subsection (2) of this section relate,
- and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (which, ever is appropriate) shall, subject to the provisions of section (Procedure) of this Act, he sufficient evidence of any matter stated in the certificate; and—
- (i) for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it;
- (ii) any such certificate as aforesaid shall be lodged within such time as may be pre-
286 scribed, not being later than the expiry of the time prescribed for the furnishing of information under section (Procedure) (3) of this Act;
- (iii) any person lodging such a certificate as aforesaid shall. within the time prescribed under paragraph (ii) of this subsection, send a copy thereof to every other party to the proceedings.
§ (5) For the purposes of this Part at this Act—
- (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
- (b) where, in the course of any activities carried on by any person, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
- (c) a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
§ (6) Subject to subsection (3) of this section, in this Part of this Act "computer" means any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived therefrom by calculation, comparison or any other process."
§ The noble Lord said: It would perhaps be for the convenience of the House if I discussed together all the new clauses and the Amendments to Clauses 13 and 18, since they are all related to the same subjects. I admit that these new clauses appear formidable, and I say with some trepidation, having made that remark, that they deal with a comparatively simple point; that is, to make prevision regarding the admissibility in civil proceedings of records kept by the modern business methods such as computers and microfilms.
§ This is not the introduction of any new principle. There are already provisions in the law facilitating the introduction of business records in evidence. The modern provisions will be found in Section 7 of the Law Reform (Miscellaneous Provisions) (Scotland) Act, 1966. This is only an extension of the principle to cater for modern developments. This House has already approved the extension in English law in the Civil Evidence Act which it passed earlier this Session. Indeed, your Lordships will possibly have 287 recognised the provisions of the new clauses as being the English provisions adapted to meet the existing Scottish law. In these circumstances I do not think that I need say much about the detail of the provisions.
§ The first new clause (Amendment No. 13) makes provision for the admission of computer records. The next two are procedural provisions, consequent upon the first clause. The fourth clause (Amendment No. 16) amends Section 7 of the 1966 Act to make it clear that records kept, say, in the form of microfilm copies are admissible under that Section. The Amendments to Clause 13 define "document" and "copy of document" to enable the provisions of the four clauses to be worked.
§ Perhaps I might say just a word about the reason the Government are moving these Amendments. One of the incidental purposes of the comparable provisions in the English Civil Evidence Act was to facilitate the use by business of modern and economical methods of record keeping. After this Bill had been published the Government received an approach from a business association to the effect that businesses, particularly large businesses operating throughout Great Britain, would not be able to take advantage of the provisions of the English Act if they were in doubt about the position in Scotland. They pointed out that it would not be practicable to introduce modern forms of record keeping for England and Wales only or to introduce them for the whole of their business, unless they were sure about the position in civil proceedings in Scotland. They therefore felt that the introduction of similar provisions, if approved in Scotland, was a matter of some urgency.
§ Informal inquiries following this approach showed that there would be advantage and no practical difficulties about making similiar provisions for Scotland. Of course, it is the position that the whole of civil evidence is under review by the Law Commission. The Government have consulted them and have established that this minor change is acceptable to them without prejudice to their general review. I should also say that the Lord President of the Court of Session has been consulted by the Lord Advocate, particularly in view of the pro 288 cedural nature of the change, and that he has no objection in principle to the admission of such evidence. We are satisfied, as a result of the consultations, that the new clauses constitute a workable arrangement for the admission of evidence from modern business records. I beg to move Amendment No. 13.
After Clause 12, insert the said new Clause.—(Lord Hughes.)
§ LORD DRUMALBYN
This is a long and complicated series of Amendments, but for my part—and I am sure my noble friends will agree with me—I think it is obviously right that we should do this. The only doubt, of course, is whether the actual proposals give full and reasonable effect to what the Government intend here. I am afraid that it is a matter for the lawyers to judge whether, in the light of their knowledge of computers and modern machinery, the kind of evidence that they will get will be such as they require. Subject to that, I certainly would not oppose these Amendments.
§ LORD REID
It appears to me that this is an admirable Amendment, and I do not take the least objection to this being done before the general review, because it obviously stems from the chapter by itself. There is only one thing I should like to say. There must surely be something wrong with our methods of drafting if it takes five pages of close print to introduce what is apparently a simple Amendment of this kind. I am not complaining, because I have no doubt that it is drafted—and I have read it not as carefully as I should have done because it would take too long—in the traditional style, but it seems to me to add point to the growing demand that the traditional style of drafting ought to be radically altered.
§ LORD HUGHES
I have two things to say. First of all, I am extremely grateful to the noble and learned Lord, Lord Reid, for what he said in the first part of his remarks, which must allay any fears which the noble Lord, Lord Drumalbyn, might have. It certainly allayed my own fears, because the thought which immediately occurred to me was that if, in fact, we had gone the wrong way about it, it must have been the longest detour to arrive at the wrong 289 destination that anybody has taken for a very long time indeed. I am also grateful to the noble and learned Lord for his remarks about the drafting of the Amendment. What I should like to ask him to do—and I do not intend this in any way to be impertinent; it is because he has had such a long experience in this matter—is, if he ever has the time, to sit down and look at our Amendment and draft a simpler form of covering this point, it would give me the greatest of pleasure to pass it on to those where it might serve a useful purpose. I doubt, however, whether his Lordship will ever have time to do it. If he has, he will render a service to Her Majesty's Government and to your Lordships' House.
§ LORD HUGHES
Even if it were delayed to the Long Vacation, if we were undertaking consolidation it would be magnificent to substitute four lines for five pages. Perhaps I could give a bonus to the noble Lord, Lord Drumalbyn, by answering the question which he put a little earlier on the subject of affiliation and aliment. The answer which I have been given is that the clause does not make a decree of affiliation and aliment conclusive evidence in an action for paternity. It makes them admissible, but the party to whom the decree is made will still be able to bring evidence to disprove paternity.
After Clause 12, insert the following new clause:
§ Provisions supplementary to section (Admissibility of statements produced by computers)
§ ".—(1) Where in any civil proceedings a statement contained in a document is proposed to be givin in evidence by virtue of section (Admissibility of statements produced by computers) of this Act it may be proved by the production of that document or (whether or not that document is still in existence) by the production of a copy of that document, or of the material part thereof, purporting to be certified or otherwise authenticated by a person responsibile for the making of the copy or in such other manner as the court may approve; 290 and any such copy shall be taken to be a true copy unless the contrary is shown.
§ (2) In estimating the weight, if any, to be attached to a statement admissible in evidence by virtue of section (Admissibility of statements produced by computers) of this Act regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement and, in particular—
- (a) to the question whether or not the information which the information contained in the statement reproduces or is derived from was supplied to the relevant computer, or recorded for the purpose of being supplied thereto, contemporaneously with the occurrence or existence of the fact; dealt with in that information, and
- (b) to the question whether or not any person concerned with—
- (i) the supply of information to that computer, or
- (ii) the operation of that computer, or
- (iii) the operation of any equipment by means of which the document curtaining the statement was produced by that computer,
After Clause 12, insert the following new clause:
§ ".—(1) Subject to subsections (6) to (8) of this section, a statement shall not he admissible in evidence in civil proceedings by virtue of section (Admissibility of statements produced by computers) of this Act unless the procedure laid down by or under this section has been complied with.
§ (2) A party to any civil proceedings who wishes to rely on any such statement as is mentioned in the said section (Admissibility of statements produced by computers) stall, at such time as may be prescribed, send to every other party to the proceedings a copy of the statement together with a notice in writing
- (a) intimating that the party intends to rely on the statement;
- (b) stating that the statement is contained in a document produced by a computer;
- (c) directing the attention of the other party to the provisions of subsection (3) of this section enabling a counter-notice to be given.
§ (3) Any party who receives such a notice as is mentioned in subsection (2) of this section may, within such time as may prescribed, by counter-notice in writing addressed to the party who served the notice, require him, within such further time as 291 may be prescribed, to furnish him in writing with all or any of the following information—
- (a) any such information as might be the subject of a certificate under the said section (Admissibility of statements produced by computers) (4), except in so far as such information is the subject of a certificate lodged under that subsection;
- (b) particulars of a person occupying at the material time a responsible position in relation to any of the matters mentioned or referred to in sections (Admissibility of statements produced by computers) (4) and (Provisions supplementary to s. (Admissibility of statements produced by computers)) (2)(b) of this Act, and, if he is not included among such persons, of any person who signed any certificate lodged as aforesaid.
§ (4) Within a prescribed period after receipt of the information requested under subsection (3) of this section, the party to whom the information was furnished may require that the party wishing to rely on the statement should call as a witness any person of whom particulars were furnished under paragraph (b) of the said subsection (3), unless that person is dead, or beyond the seas, or unfit by reason of his bodily or mental condition to attend as a witness, or cannot with reasonable diligence be identified or found, or cannot reasonably be expected (having regard to the passage of time and to all the circumstances) to have any recollection of matters relevant to the accuracy or otherwise of the statement in the document.
§ (5) In deciding for the purposes of this section whether or not a person is fit to attend as a witness, a court may act on a certificate purporting to be a certificate of a fully registered medical practitioner.
§ (6) Without prejudice to the generality of the powers conferred on the Court of Session by sections 15 and 34 of the Administration of Justice (Scotland) Act 1933 to regulate by act of sederunt its own procedure and that of the sheriff court respectively, the said powers shall include power—
- (a) to prescribe the form of any notice or other document authorised or required to be used under section (Admissibility of statements produced by computers) of this Act or this section;
- (b) to prescribe the manner in which, the time within which, and the conditions on which any thing authorised or required to be done under section (Admissibility of statements produced by computers) of this Act or this section shall or may be done;
- (c) to prescribe exceptions to any of the requirements prescribed by or under this section; and
- (d) to modify, amend or repeal any of the provisions of this section; and in section (Admissibility of statements produced by computers) of this Act and this section "prescribed" shall be construed accordingly.
§ (7) Any act of sederunt made for any of the purposes mentioned in subsection (6) of this section, in so far as it relates to civil proceedings in the Court of Session, shall 292 (except in so far as its operation is excluded by agreement) apply, subject to such modifications as may be appropriate, in relation to any other civil proceedings (other than proceedings in the sheriff court) in like manner as it applies in relation to civil proceedings in the Court of Session and if any question arises as to what are, for the purposes of any such civil proceedings, the appropriate modifications of any such act of sederunt, that question shall, in default of agreement, be determined by the court before whom the proceedings take place.
§ (8) The court in any civil proceedings shall have a discretion, where it appears to them that the interests of justice so require, and subject to such conditions (if any) as to expenses or otherwise as the court may think fit, to allow a statement falling within section (Admissibility of statements produced by computers) (1) of this Act to be given in evidence notwithstanding that any requirement laid down by or under this section has not been complied with.")—(Lord Hughes.)
After Clause 12, insert the following new clause:
§ Amendment of section 7 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1966
§ (". Section 7 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1966 shall be amended as follows
- (a) in subsection (1) the words "on the production of the document" shall be deleted:
- (b) after subsection (3) there shall be inserted the following subsection—
§ "(3A) Where a statement contained in a document is proposed to be given in evidence by virtue of this section it may he proved by the production of that document or (whether or not the document is still in existence) by the production of a copy of that document, or of the material part thereof, purporting to be certified or otherwise authenticated by a person responsible for the making of the copy or in such other manner as the court may approve; anti any such copy shall be taken to be a true copy unless the contrary is shown.".").—(Lord Hughes.)
§ Clause 13 [Interpretation of Part III and savings]:
Page 10, line 23, at end insert ("and "court" shall be construed accordingly.").—(Lord Hughes.)
§ Amendment moved—
§ Page 10, line 27, at end insert—
("( ) In this Part of this Act—
computer" has the meaning assigned by section (Admissibility of statements produced by computers) of this Act;
document" includes, in addition to a document in writing—
§ (2B) In this Part of this Act any reference to a copy of a document includes—
- (a) in the case of a document falling within paragraph (c) but not (d) of the definition of "document" in subsection (2A) of this section, a transcript of the sounds or other data embodied therein;
- (b) in the case of a document falling within paragraph (d) but not (c) of that definition, a reproduction or still reproduction of the image or images embodied therein, whether enlarged or not;
- (c) in the case of a document falling within both these paragraphs, such a transcript together with such a still reproduction; and
- (d) in the case of a document not falling within the said paragraph (d) of which a visual image is embodied in a document falling within that paragraph, a reproduction of that image, whether enlarged or not;
§ Clause 13, as amended, agreed to.
§ Clauses 14 to 17 agreed to.
§ Clause 18 [Short title, interpretation, repeals, extent and commencement]:
§ LORD HUGHES
It might be for the convenience of the Committee if I move Amendments numbers 19, 20, 21 and 22 en bloc. I beg to move.
Page 13, line 7, leave out ("12") and insert ("(Procedure)")
§ Page 13, line 9, leave out ("12") and insert ("(Procedure)")
§ Page 13, line 11, at end insert ("and different days may be appointed under this section for different purposes.")
§ Page 13, line 14, leave out ("12") and insert ("(Procedure)")—(Lord Hughes.)
§ LORD DRUMALBYN
When we talk about procedure, I am entitled to ask the noble Lord, Lord Hughes, to give us an assurance that we shall no: have another five pages of Amendments introduced among the miscellaneous pro visions on the Report stage of the Bill. I understand that the Government have to take such opportunity as they can to gut miscellaneous law provisions through the House, but one does not want to feel that opportunities are abused. The introduction of these very long provisions in this House, which have to go back to another place and which have not yet been considered there, comes fai:1:r close to an abuse. Perhaps their length has been responsible in part for the fact that they have been delayed so long—I do not know. But, whatever the reason, I hope that our patience will not be tried too far and that we shall not have what is virtually further legislation introduced on the Report stage.
§ LORD HUGHES
I think that t le furthest I can go is to say that I should be very surprised if we tried to repeat this on the Report stage.
§ Clause 18, as amended, agreed to.
§ Schedules agreed to.
§ House resumed: Bill reported, with Amendments.