§ 4.5 p.m.
§ LORD HUGHES
My Lords, I beg to move that this Bill be now read a second time. The Bill is for the most part based on recommendations made to the Government by the Scottish Law Commission and other independent bodies. I should like to express the Government's thanks to the Commission, on whose proposals six of the clauses of the Bill are based, for finding the time to formulate 824 these useful proposals when they are so fully occupied with the long term studies they are undertaking as part of their First Programme of Law Reform. The other body to whom we owe much for the provisions of this Bill and to whom we express gratitude is the Committee set up by the previous Government under the chairmanship of Lord Justice Russell to study the succession rights of illegitimate children.
The main provisions of the Bill deal with two fields of law: the law concerning succession and related matters, and the law of evidence. Parts I and II of the Bill and the first two Schedules are concerned with the former, Part III with the latter. Part IV of the Bill deals with four other miscellaneous reforms of the law, while Part V contains what are broadly speaking standard supplementary provisions of any Bill.
Part I of the Bill deals with the succession rights of illegitimate persons. Clauses 1 to 3 implement the main recommendations of the Russell Committee that illegitimate children should enjoy the same rights of succession as legitimate children in the intestate estate of both their parents and to legitim The arguments in favour of extending the succession rights of illegitimate children will, I am sure, find considerable sympathy among your Lordships. First and most obviously, to allot an illegitimate child an inferior or unrecognised status in succession to his parents' estates is to punish him for a situation for the creation of which he was blameless. Secondly, there is the argument to be derived from comparative law that in a not inconsiderable number of countries in the Western world illegitimate persons have rights of succession in the estates of both their parents. Finally, in this country the general trend of legislation this century has been towards the removal of disabilities from illegitimate children. The law already recognises the right of an illegitimate person to succeed in his mother's estate—albeit in very limited circumstances. Appendix III of the Russell Committee's Report lists a number of instances of legislation passed this century which accord some degree of recognition to illegitimate relationships.
Clauses 1 and 2 of the Bill are drafted in the form of amendments to the 825 Succession (Scotland) Act 1964, which is the general code of law on succession. Clause 1 replaces the present Section 4 of the 1964 Act (which deals with the limited circumstances in which an illegitimate person may succeed to his mother's estate); Clause 2 inserts a new Section 10A into the Succession (Scotland) Act to deal with the right of illegitimate children to legitim Clause 3 together with Schedule 1 of the Bill make consequential provision to the 1964 Act. Clause 4 of the Bill implements a suggestion in the Russell Report and gives an illegitimate child exactly the same right to aliment out of his deceased parents' estates as is enjoyed by a legitimate child. Again the aim has been to equate the entitlements of legitimate and illegitimate children.
Clause 5 of the Bill deals with testate succession, and provides that where persons are described in wills and other deeds in term of their relationship to other persons then the description shall be taken to refer to illegitimate as well as legitimate relations and to persons related by illegitimate as well as by legitimate links. This provision will not affect the normal type of bequest or gift, which is to a named person, but it will mean that in future when a person makes a bequest in favour of his "children" that bequest will be construed as benefiting both his legitimate and any illegitimate children. If he wishes to exclude his illegitimate children from his will—which, subject to their claim to legitim, he is perfectly entitled to do—he will have to make it clear that the bequest is in favour of "legitimate children" only. These new rules of construction apply only in relation to deeds executed after the commencement of the Bill. The Scottish Law Commission have also advised the Secretary of State that in the light of Clause 5 it would be desirable to extend the scope of three legal principles bearing on the construction of deeds so as to apply the benefit of those principles to illegitimate persons as they apply to legitimate. The Government have accepted this proposal also, and Clause 6 gives effect to it.
Clause 7 of the Bill implements a further recommendation of the Russell Committee that special protection should be provided for those who distribute estates — trustees and executors — in 826 ignorance of the existence of an illegitimate person who could have claimed a share in the estate. The main effect of Clause 8 is to abolish primogeniture and preference of miles in intestate succession to crofting tenancies and to assimilate such succession to the general rules of succession to property which in future will admit claims of illegitimate persons in the estates of their parents. If in this context we were to give effect to the recommendations of the Russell Committee without any further change in the present law of succession to crofting tenancies, the result would be that the tenancy of a croft might pass to an illegitimate son of the crofter (if he were the eldest son) to the exclusion of the widow, or any subsequent legitimate issue which the crofter might have had. This, obviously, is not a situation that could be seriously entertained.
Alternatively we could have disapplied altogether in relation to crofting tenancies the provisions implementing the Russell recommendation. This in effect would mean that there would be no improvement in this field for illegitimate children, and the law of intestate succession to crofting tenancies would be isolated even further from the general law of succession. We consulted the Crofters Commission, who advised that rather than adopt either of these unsatisfactory courses the Bill should abolish the principle of primogeniture and preference of males in intestate succession to crofts.
The Government fully support the Commission in the conclusion they have come to on this important issue. Your Lordships may have noticed from proceedings in another place that there has been some criticism, and I do not think I am wrong in saying it is misinformed criticism, which has suggested, first, that there has been lack of consultation, and second, that the provisions were not welcome to crofters generally. I am able to assure your Lordships that proper consultation took place with the Crofters Commission who are, as your Lordships know, appointed by Statute to advise my right honourable friend on crofting matters. My right honourable friend has just received a memorandum from the Federation of Crofters' Unions. The Federation suggest that the Bill has some disadvantages compared with the 827 law as it stands, but the Memorandum appears to be based largely on misunderstanding of the proposed measure, which has had widespread approval throughout the crofting community. Subsequent to the publication of the Bill, the Commission explained its provisions to their assessors at a series of conferences. These conferences now provide as democratic a cross-section of crofting opinion as the Commission have found it possible to arrange for. Your Lordships will remember that the assessors are elected assessors now. I am glad to say the assessors gave the proposal their almost unanimous support.
I should now like to turn to Part III of the Bill, which is concerned with two aspects of the law of evidence in civil proceedings in Scotland. Clause 9, which was the subject of lengthy discussions in another place, implements a recommendation of the Scottish Law Commission. The present law of corroboration is rather complex but, broadly its effect is that a court cannot accept as sufficient proof of a material fact the evidence of a single witness unless he is corroborated by other evidence. Looking to the generality of cases, the Commission found this rule of law unnecessary and the cause of possible injustice, and concluded that, having regard to the hardship which the present rule is causing particularly in accident cases, reform is a matter of some urgency and should not await their presentation of a draft code of the whole law of evidence. In the preparation of the necessary legislation we reached the conclusion, in consultation with the Commission, that the most satisfactory reform was that the rule requiring corroboration in such actions should be removed, not only where evidence is given by a witness in person (which was the circumstance to which the Commission specifically re-referred in their report) but from all types of evidence. Clause 9 of the Bill applies accordingly both to oral and documentary evidence.
The effect of the clause is that corroboration will cease to be a sine qua non in the type of civil case covered by the clause. This does not mean, however, that corroborating evidence will never be required in future. After the evidence in any particular case has been led, the court will have to consider 828 whether they are satisfied that the material facts in the case have been established by it, and where evidence is not corroborated the court may well be less easily satisfied about the matter. Parties will still no doubt lead corroborating evidence if it is available, but lack of corroboration will no longer, as at present, be fatal to the case and result in the party being unable in law to establish his claim.
It should be noted that the clause in no way affects the rule of corroboration in criminal proceedings. The Law Commission reserved their position on this, and, of course, quite a different set of considerations may arise in that field. They also recommended that consistorial actions and actions for affiliation and aliment should be reserved until they could consider the consequences of the fact that, to some extent, they attract criminal standards of evidence. The Bill excludes such actions and for similar reasons proceedings before juvenile courts. The Government accept that the balance of Scottish legal opinion—although by no means unanimous—is against its abolition. The point I would make is that a rule of law, unless it serves some useful or necessary purpose, is a disadvantage; it comes between the parties and the court and the establishment of the truth on the balance of probabilities. Few other countries—only Portugal among Western nations—find the need for this rule of law, and it is the Government's view that it is right to abolish it for ordinary civil proceedings in Scotland.
I do not think that I need spend much time on Clauses 10 to 12, which some of your Lordships may recognise as old friends. They came before this House in respect of the law of England and Wales in the Civil Evidence Bill, and are based on a report of the Law Reform Committee. The Scottish Law Commission, whom the Government consulted on the report, have advised that the amendments proposed by the Committee should also be made to the law of Scotland. Clause 10 makes convictions on criminal proceedings, so far as relevant, admissible in subsequent civil proceedings. Clause 11 makes similar provision about finding of adultery and paternity. Clause 12 makes criminal convictions conclusive evidence of guilt in any action for defamation.
829 I should now like finally to turn briefly to Part IV of the Bill, which gives effect to four minor reforms—three of them recommendations of the Scottish Law Commission. Clause 14 implements a recommendation of the Commission that the law restricting the creation of liferent interests in property in favour of unborn persons should be amended and re-enacted. The present law in Scotland recognises that it is against public policy to allow liferents to be created for too lengthy a period. The Law Commission do not question this policy but have pointed out inadequacies in the form and drafting of the present statutory restrictions. Clause 14 gives effect to their proposals for improvement of the law. Clause 15 of the Bill is designed to remove a doubt whether a probate or other title of an executor granted by the court in England, Northern Ireland, or certain other Commonwealth countries, duly resealed in Scotland in accordance with the normal procedure, can be used by the executor as a link in title to heritable property in Scotland comprised in the estate.
Clause 16 implements another recommendation of the Commission. It has come to light that some moneylenders require their clients to enter into agreements to submit, when court proceedings relating to their indebtedness are raised, to the jurisdiction of a sheriff court convenient to the moneylender. The court which would normally have jurisdiction in such cases is, of course, the court where the defender is resident. Similar agreements to submit to the jurisdiction of a particular court in the case of hire purchase transactions were rendered void by Section 4 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940; and Clause 16 of the Bill extends that section to cover moneylenders' agreements.
Clause 17 is a simple measure to remove anachronistic restriction which at present prevents trade unions in Scotland from owning or dealing in more than an acre of land. The restriction was imposed by the Trade Union Act 1871, which first gave trade unions the right to possess land. The restriction was removed in England by an Act of 1922. We have come to the conclusion that we cannot be accused of rushing into hasty legislation on this matter! I hope that I have been able to give your Lordships a reasonable explanation of the Bill, though I fully appreciate 830 that in a Bill dealing with miscellaneous subjects it is difficult to cover every item fully in a Second Reading speech unless one were to go to such a length as to become an abomination to everybody present. I beg to move that the Bill be now read a second time.
§ Moved, That the Bill be now read 2a.—(Lord Hughes.)
§ 4.22 p.m.
§ LORD DRUMALBYN
My Lords, I should like to start by thanking the noble Lord for a painstaking explanation of the purposes of this Bill. I join with him in thanking the Scottish Law Commission and the Russell Committee, but I should not like our congratulation; necessarily to entail accepting blindly all their recommendations.
The Bill contains an astonishing variety of provisions and covers such a wide field that there is no single principle to be debated on Second Reading. I should have thought that it was essentially a Committee stage Bill, in much the same way as, for example, an Expiring Laws Continuance Bill is a Committee stage measure. Most of the provisions have a strong social content, and to that extent it is possible for a layman to express an opinion on them with rather more conviction than he could do on a law reform Bill which is purely lawyers' law. All the same, I approach the task with diffidence, and I should like to make it clear that any opinions I may express are mine and mine alone—although I have reason to believe that some, at any rate, are shared by quite a number of people.
First, may I say that it seems to me clearly right to bring the law of succession in crofting tenure into line with the general law of succession in Scotland. I was glad to hear that there was consultation with the Crofting Commission and with the crofters' representatives, since I know that in another place some doubt arose on this matter. May I also, in passing, express satisfaction that the Government have provided a Keeling Schedule for the convenience of all concerned, to show the alteration in the Crofters Act. I do not want to deal with the provisions in Clauses 10 and onward because these can be dealt with more conveniently in Committee.
831 I should like to say a word about Clause 9. I was glad to see that just at the moment when the noble Lord, Lord Hughes, started to talk about Clause 9 my noble and learned friend Lord Reid came into the Chamber. I believe that he, too, wishes to say something about Clause 9, so I shall keep my remarks very short. It seems to make a far-reaching change in the law of Scotland by abolishing the rule of law requiring corroboration in civil proceedings. The Scottish Law Commission stated the case for this change in the Report which they submitted in February, 1967. As a layman, I found the Report very clear. They had, however, to admit that the comments of the Lord President of the Court of Session, the Faculty of Advocates and the Law Society of Scotland were generally unfavourable. These comments evidently related not to the proposal contained in Clause 10 but to a much more limited proposal confined to corroboration in actions for damages for personal injuries.
I understand that the Faculty of Advocates objected in principle to the change and also objected to the difficulties and anomalies which would arise from confining any new rules to that particular class of actions. The Law Commission seem to have decided to adhere to the principle to which the Faculty of Advocates objected and to widen their original proposal to all civil actions except consistorial and affiliation proceedings. They did so apparently on the ground that in their view there was "some urgency"—to use their expression—for a change so far as actions arising out of personal injury are concerned. I cannot see the logic of this. Since such urgency as there may be relates to personal injury cases, surely the logical thing would be to confine the change to personal injury cases, in spite of any temporary difficulties that may arise.
I feel fairly sure that while the Scottish Law Commission's recommendation as to civil proceedings may be highly contentious, it is not nearly so contentious as a proposal to dispense with the need for corroboration in criminal causes in Scotland, no matter what the law in other countries may be or what were the personal views of Napoleon, which the Scottish Law Commission quoted with some 832 relish. For my part, I would not advocate carrying the Auld Alliance so far as to adopt the Code Napoleon. Moreover, I should like an assurance that if the proposals in the Bill are accepted we shall not be told later that, because we have accepted the change for civil proceedings, we must in consequence accept them for criminal proceedings.
I come on to the question of the rights of succession which Clauses 1 to 4 would confer on illegitimate children. The noble Lord said that the arguments would command sympathy in many parts of the House. They certainly command my sympathy, but not, I am afraid, my support. These clauses implement the recommendations of the Committee on the Law of Succession in Relation to Illegitimate Persons, which reported in July, 1966. This was a Committee (and the noble Lord did not mention this) of nine, composed of four from Scotland and four residing in England or Wales, under the chairmanship of Lord Justice Russell. Quite rightly, it did not consist only of lawyers, since the subject was one of social as well as of legal significcance. On the other hand, I am not sure that it was right to appoint one Committee to try to apply a single policy on both sides of the Border when the law is fundamentally different in Scotland.
The mere fact that in Scotland legitim involves the absolute right of the legitimate children to claim a specific share in their parent's moveable estate (subject to the prior rights of the other parent), makes it impossible to devise a common policy. For England and Wales the main issue is succession on intestacy, whereas in Scotland it is succession whether there is a will or not. Although the Committee invited views from the public, it seems that they received little response. They had before them no statistics on which they could base conclusions, and they found it impossible to estimate the effect of any extension of rights in relation to illegitimates.
The main general consideration on which the Committee based their recommendation, which was mentioned by the noble Lord, Lord Hughes, was that:to allot to a bastard an inferior or indeed unrecognised status in succession is to punish him for a wrong of which he was not guilty.They want, therefore, to put the illegitimate offspring in the same position as 833 the legitimate offspring, the legitimised child and the adopted child.
I see things quite differently. Are we not nowadays far too ready to confer new rights without any corresponding duties? The position of parent and child in a family is one of reciprocal duty and affection. I cannot believe it is right that one who has never formed part of the family, who may never even have known either of his parents, who has never helped or comforted his parents in any way at all, should have conferred on him by Statute when his parents die, perhaps in old age, intestate, and he has perhaps reached middle age, an absolute right to share equally in an estate with a half-brother or half-sister and to deprive him or her of half his or her birthright. I cannot believe that that is right. In that case, it will be the legitimate child who is punished for a wrong of which he or she was not guilty, and is deprived of half of his or her expectations and of the reward, very probably, of a lifetime of filial devotion.
Of course, I recognise that a father of an illegitimate child has a legal duty to maintain him until he is 16; and in Scotland that duty continues after the father's death and can be enforced against his estate. But that is an extra-family duty, and that is why there is no corresponding duty on the part of the child. Of course, I recognise also that the sort of case I have mentioned, though a common one, is not the only kind of case that arises. There may be no legitimate children, and an illegitimate child already has the right to succeed to his mother's estate, as the noble Lord mentioned, if there are no legitimate children.
I concede at once that if the illegitimate child has been brought up in his mother's family, it is right that he should be treated on a par with any legitimate children. But there ought to be nothing to prevent him from being adopted by his mother and so acquiring equal rights. And in any case his mother can ensure that he is treated equally in her will. To cover the cases where she does neither of these things, I would gladly see the rights of succession extended to the illegitimate child brought up in the mother's family, simply because he is then a member of the family with all the 834 rights and duties of a member of the family.
In my view, the Russell Committee gave far too little weight to the thought, which it expressed in paragraph 31 of its Report, that:provisions for intestacy are basically designed to carry out the presumed wishes of the deceased who has not expressed his or her wishes by will.This is surely so. A person still has during his lifetime the right to dispose of his property at his death as he wishes, subject to the Inland Revenue's cut and to legal rights of legitim in Scotland. If he does not exercise his right, lie is presumed to want his property divided between his spouse and his heirs as the law provides. If he wants it divided differently—for example, by making provision for illegitimate children—he can do so. But if he divides his property without making such provision, I cannot see why one who is not a member of his family should have a right to take part of his estate. He can have no such right in England once he has passed the age of dependency. Nor, indeed, do I see why he should be given a right on intestacy either in Scotland or in England.
The Russell Committee laid considerable stress on the blood relationship. But the law has been tending away from the blood relationships. If an illegitimate child is adopted by foster parents, he becomes part of his adoptive family and loses any rights to his natural parents' estates. There are also the provisions for legitimising children by subsequent marriage, which the Scottish Law Commission recommended and Parliament has recently passed into law. Of course, everyone recognises that it is a grave misfortune for a child to be born illegitimate. But, surely, the right course is to take every possible step at the earliest possible stage to see that he becomes part of some family, not to give him rights of succession 30, 40 or 50 years later to the estate of the head of a family to which he has never belonged or contributed in affection or service or in any other way. But it is one thing to try to give every child as far as possible an equal start in life. It is a quite different thing to present, at somebody else's expense, an occasional bonanza to an illegitimate child late in life who may 835 or may not stand in need of it. I believe that this will cause quite disproportionate strife and unhappiness. After all, it is far worse in life to be disappointed about something which one has long had reason to expect, than not to get what one has never expected, even though one may resent that one cannot get it.
I believe that attempts to claim entitlement under these proposals will be difficult to justify, difficult to prove, and will cause untold complications and anxiety. At the very least, I beg the Government to fix some limit of time from the death of the owner of the estate within which such a claim must be made. I suggest to your Lordships that it is a bad thing to introduce so strong an element of uncertainty into the law. The Succession (Scotland) Act abolished the principle of primogeniture and removed the distinction between heritable and moveable property except, I think, in respect of legitim. It seems to me absurd that an illegitimate child should have conferred on him a right to legitim.
If they really meant to bring the law as regards the rights of illegitimate children into line on both sides of the Border, it seems to me that there were three courses open. One was to leave the law as it is. The second was to abolish legitim and leave the testator free to dispose of his property as he thought fit, subject to the right of dependants to apply to the courts. The third was to confine the succession rights of illegitimate children to cases where is no will.
There is something to be said for the law allowing illegitimate children to share with legitimate and adopted children in an estate on intestacy, although I think there is much more to be said against it. In my view, there is nothing to be said for giving an illegitimate child a right to override the expressed wishes of a testator, even in cases where the testator is not even aware of his existence. I hope, therefore, that when we come to the Committee stage the House will at least agree to omit Clause 2.
§ 4.38 p.m.
§ LORD REID
My Lords. I think that the noble Lord, Lord Hughes, and his colleagues in the Scottish Office are to be congratulated on finding a fairly high place in the legislative queue in such a busy Session. I make no complaint of 836 the fact that this is in every sense of the word a "miscellaneous" Bill. In present circumstances, it is probably impossible to expect anything else. I do not intend to say very much on the earlier part of the Bill. On Part II have no very strong views, but I feel great sympathy with what has been said by the noble Lord, Lord Drumalbyn. This is a most difficult field, in which I think it is quite impossible to prophesy the result.
The different circumstances in which these proposals may come to be applicable will vary enormously. I have no doubt that in some cases, if these proposals become law, there will be a just result; but equally I have little doubt that in a great many other cases there will be a very unjust result. It is a question of proportion—and I cannot offer any useful views on this question—as to how many cases there will be in which these proposals will promote justice and how many there will be in which the proposals will do exactly the opposite. I still have an open mind on the matter, but, as I say, I am inclined to agree with the noble Lord, Lord Drumalbyn.
With regard to Part II, I shall say nothing. Clauses 10 and 11 seem to be admirable technical improvements, and the sort of thing that one expects to find in a "miscellaneous" legal Bill of this kind. Clause 12 certainly makes some improvements, although I am bound to say that I have my doubts about making anything conclusive evidence. I think that is a point which may require to be looked at when we come to the Committee stage. It is going a very long way to say that when a man has been found guilty in some remote magistrates' court he is for ever forbidden to dispute the validity of that conviction, however strong his evidence may be. But I quite see that there are arguments the other way, and again I do not wish to press that matter at all strongly.
But when I come to Clause 9, there is a very different picture. So far as that clause is concerned, it is undoubtedly, from the lawyers' point of view, the most important clause in the Bill by a long way, because it makes a fundamental change in the law of evidence in Scotland. The noble Lord, Lord Hughes, was good enough to give an explanation which I found accurate, I think. One 837 cannot, on an occasion like this, go into great length about the technicalities. but I make no complaint about his legal expertise in explaining this matter. Let me make one or two observations before I come to the real point of my objections.
As those noble Lords who have had any experience in the matter will know, the difference between Scotland and England on this question of the law of evidence is even greater than in most other departments of the law. In England, with very few exceptions, it is possible to prove any case by the evidence of one witness. He may be contradicated by other witnesses, but if the court or the jury choose to accept that one witness they may do so. I am not at all sure that that is a good thing; and, indeed, I have noticed that lately there has been a good deal of criticism in the Press about mistaken identification on the evidence of one witness. I have a shrewd suspicion that if one could look closely at a great many of these cases one would find that this one-witness rule does a good deal of injustice in England. But it is not for me to start discussing that now.
In Scotland, however, for hundreds of years there has had to be corroboration. That sounds formidable, but it is not. You can have corroboration by having two witnesses, of course, speaking to a fact—that is straightforward. But you can also have corroboration if the circumstances of the case as disclosed by circumstantial evidence, or as disclosed by other oral evidence, are such as to make it more probable than not that the one witness who is speaking to the crucial facts is telling the truth. There cannot be very many cases where it is not possible to discover that amount of evidence if the witness is telling the truth, and therefore this is, I would have thought, a dubious change.
I am bound to say that until very recently—in fact, during the whole time I was practising in Scotland—I never heard any serious criticism of this system at all, even with regard to the matters which are now put in the forefront. But I quite agree that there has been some criticism in recent years, as noticed by the Law Commission, although only in one class of case. I have not seen any reference anywhere to any criticism going beyond cases of actions of damages for personal injuries. Of course, there are 838 a few cases where an honest pursuer, by some misfortune, is not able to satisfy even the simple elements of corroboration to which I have alluded. But then one must also remember that there are dishonest people in this world, and if we remove this bar we are undoubtedly increasing the risk that undeserving people will succeed when they ought not to succeed. I would remind your Lordships that whereas in England accident cases are almost all tried now by a judge alone, in Scotland we still preserve the jury, and it is very much easier for a plausible witness to mislead a jury than to mislead a judge. But I agree that there is a case here, and I do not suggest that there are not two sides to this argument: there are.
That limited change I really would not object to, but it is a very different thing when we come to this very extensive change which is proposed. I do not intend at this stage to enter into a detailed explanation of all the difficulties —that will be more appropriate later—because the objection I have to make is a very different kind of objection, and I shall come to it in a moment. But I might just say that litigants will be put at risk with regard to evidence about old contracts, old property rights, one thing and another. Our law of prescription allows much longer periods than the law of limitation in many cases in England, and I think it is very risky.
But the real trouble about this clause is this. When the Scottish Law Commission looked into the matter they found, as they thought, that this question of corroboration in actions of damages for personal injury ought to have priority—and I do not question that: it is more or less in a class by itself. They consulted the Scottish Law Society and the Faculty of Advocates, and no doubt others, and the reactions were unfavourable. That is only a factor, and tie Law Commission were quite entitled to say, and the Government are quite entitled to say, backing them up; "We prefer the other view". If the matter had stopped there, if the original proposal of the Law Commission had appeared in this Bill, I should not have opposed the proposal. I should have feared that it would do more harm than good, but I should not have opposed it. But then a very unfortunate thing happened. Haying 839 received these unfavourable comments, the Law Commission suddenly changed their minds and, instead of bringing in a proposal for a very limited measure relating only to actions of damages, they expanded the thing to cover the whole of civil procedure, with one exception. And they consulted nobody about that—not one single person, so far as I can discover. I think that that is extremely unfortunate when we have a proposal of this very great importance in the way of legal reform.
The legal profession is extremely worried about this. There is very great dissatisfaction. I have received letters from a number of persons, and I propose to read from two of them. Before I do so, let me also say that the Lord President, on behalf of the Judges, has written to me to say that the new proposal was put forward without any consultation with the Judges and that the Judges are very strongly opposed to it. I know that there is an idea that lawyers should not have the final word—or indeed, perhaps, the most important word—in legal reform; but here, at least, it cannot possibly be suggested that there is any personal advantage to be gained by the legal profession in supporting this change. If the change will make any difference at all it will promote more litigation and not less. The Lord President goes on to say that he would not object, broadly speaking, to the original proposal of the Commission.
Now I come to the Law Society of Scotland who represent all the solicitors there. Solicitors in Scotland are a much larger body of legal practitioners than their English counterparts and, in proportion to their number, they have a much larger experience of court work than is the case in England; because, whereas in England you have the Provincial Bar who do a great deal of work at assizes, county courts, quarter sessions and the other courts, in Scotland comparatively little work is done in any other court but the Court of Session by anyone but solicitors.
The President of the Law Society of Scotland says this:Earlier, in February, 1966, the Council were informed by the Commission that they were undertaking a general review of the law of evidence and that they proposed in 840 the meantime to make a recommendation more restricted in scope than that contained in their paper of February, 1967, namely, that corroboration should not be required in actions of damages for personal injury. The Council were asked for their observations on this restricted recommendation and informed the Commission that they did not support it, and took the view that the proposal should be considered when the Commission had completed their general review of the law of evidence. Subsequently, without any further reference to the Council, the Commission published their paper making a recommendation on the lines of Clause 9 of the Bill.He goes on to say:… any such alteration ought not to be made without full consultation with interested bodies including the Society, the Faculty of Advocates and the Judiciary.That seems to me to be an extremely reasonable position to take up.
My Lords, I come now to the Faculty of Advocates. The Dean of Faculty writes in these terms:Paragraph 19 of the Law Commission's Report is misleading. Two Members of Faculty each advised the Law Commission that, in his opinion, the Faculty would be opposed to the only suggestion submitted for comment, viz., a change in the law of corroboration in actions of damages for personal injuries. It was made clear that the general question of corroboration as a principle would require thorough study in the context of a review of the Law of Evidence as a whole before any reliable expression of Faculty opinion could be given upon it. At no time thereafter was the Faculty's opinion sought on the general question whether the whole law of corroboration should be altered, or upon the particular recommendations which were presented to the Secretary of State in the Commission's Report.The letter goes on to state that as a result of representations made by the Dean of Faculty there was a meeting with the Lord Advocate attended by the Dean, the Vice-Dean, the President of the Law Society and the Chairman of the Law Commission,at which it was accepted by the Lord Advocate and the Law Commission that no proper consultation with the profession had taken place on the subject of corroboration, and that in future no recommendations affecting the principles of the law of Scotland would be made by the Commission, until it had obtained the considered views of the profession as a whole.My Lords, how it comes about that, having admitted that there was no proper consultation, they still ask the Government to proceed with this Bill just passes 841 my comprehension. However, here we are; we have the Bill. What is to be done? It seems to me that we have to try to heal this rift—because it is a rift —between the legal profession in Scotland and the Scottish Law Commission, and it seems to me that the only way to put things right is to revert in this Bill to the original proposal of the Law Commission which was the subject of consultation with these bodies although it was not accepted by them.
As I do not oppose the Second Reading, I propose to put down Amendments on Committee in the name of my noble and learned friend Lord Guest who has authorised me to say (because owing to illness he cannot attend this afternoon) that he entirely agrees with my views. I shall put down Amendments to restrict Clause 9 to the scope of the original provision for actions for damages for personal injuries. I would not ask the noble Lord, Lord Hughes—or, if he is going to speak, my noble and learned friend the Lord Chancellor—for any reply on the matters which I have raised to-day; unless, of course, they have inside knowledge of the matter. But I think that something will have to be said before this Bill comes to an end to clear up this very serious misunderstanding.
My Lords, I think I had better leave it there until the Committee stage, subject to this one remark: that, in any event, there will have to be a further examination by the Law Commission of the law of corroboration because there has been omitted from this proposal—for reasons which have no practical significance at all to my mind—actions of divorce and the like. Looking at the practical realities of the situation, I can see no justification for that. And, of course, nothing has been said about criminal law. It is not as if we are asked to accept the law of England; we are asked to accept half the law of England —for reasons which I find it difficult to understand. But as, in any case, there has to be another review before the matter is finally settled, I think it will be very much better to go back to the very limited proposal, about which alone is there any urgency, and to take out this additional proposal and keep it until we can have a proper review after proper consultation.
§ 4.59 p.m.
§ LORD HUGHES
My Lords, when I was furnished with a list of speakers in this debate—it was, I must confess, a very limited list, consisting of the noble Lord, Lord Drumalbyn, and the noble and learned Lord, Lord Reid—it filled me with greater foreboding than would a much longer list such as we had on the Highlands debate. I have had the opportunity of working across the Floor with the noble Lord, Lord Drumalbyn, many times and I know that he will go into the subjects he proposes to raise in meticulous detail, having previously briefed himself. To-day was no exception. He was, of course, good enough to give me prior intimation of that part of this very miscellaneous Bill with which he was primarily to deal. I agree with him that what he said would be much more appropriate for a speech in Committee; because by its very nature this Bill—and this point was also made by the noble and learned Lord, Lord Reid—is essentially a Committee stage Bill.
I cannot pretend that I am in agreement with much of what the noble Lord said in relation to the position of the illegitimate child, but it would be wrong to enter into what are really arguments of principle on what is most important in this matter—the rights of the legitimate members of the family, family affection and so on. The noble Lord, Lord Drumalbyn, it could be argued, talked as if it was the illegitimate child who reused to give family affection. We know, of course, that in many cases it is the other way round; the illegitimate child is denied the opportunity either of receiving or of giving family affection. It could be argued I do not put it any stronger than that—that what the noble Lord was advocating was adding to the deprivation of family affection this subsequent and final deprivation of the right to share in property. But these are arguments which I think we could more properly examine when Amendments to the Bill are tabled.
I had my trepidation in relation to the noble and learned Lord, Lord Reid, somewhat tempered by the recollection of some very pleasant meetings which I had in London when I was a member of a Committee which was fortunate enough to be presided over by the noble and learned Lord. My recollection of that assured me that whatever weight of legal opinion the noble and learned Lord might throw at 843 me, it would undoubtedly be done with the greatest fairness, and I have no reason to be dissatisfied on that point.
In relation to this question of corroboration, about which both noble Lords spoke, the point emerged that whatever disagreement there might be about any change in the law, both noble Lords would, to a certain extent, accept the change if it were limited to personal injury cases, about which, as the noble and learned Lord, Lord Reid, has pointed out, there was considerable disagreement with at least some of the legal opinion consulted. At any rate, there can be no question at all that there was consultation. A note has been passed to me on this subject in an attempt to put me in a position to answer the question about consultation, pointing out that the full proposals of the Law Commission were published a year ago, in April, 1967. There has therefore been a lot of opportunity for comment on those proposals since that time, and the Government in fact have encouraged comment.
§ LORD HUGHES
I do not quite agree with that, because at least one of the bodies, the Society of Writers to the Signet, have expressed themselves as being in agreement with the proposals, and there is no reason to expect that even in a body of lawyers unanimity is any easier to get than it is anywhere else. I was about to say that although I have been given this note, I incline to the view that the opportunity to comment after proposals have been published is not exactly the same thing as the opportunity to be consulted before proposals are published. Having said that, I would also say that I, and I am sure my right honourable friend the Secretary of State, would wish to consider very carefully what has been said on this point by both noble Lords this afternoon; and we shall, of course, look with considerable interest at the Amendments which the noble and learned Lord, Lord Reid, has stated that he will submit.
844 My Lords, if we had done what has been suggested by both noble Lords and confined the change to personal injury there might well have been criticism, but we might not have had much difficulty in getting your Lordships to accept the provision. The difficulty in which we were placed—and this is all I propose to say about the matter at this stage—was that there is difficulty in drawing a line. I must confess that in this matter I am not talking about anything of which I have personal knowledge, but the advice which I am given is that to draw a line between personal injury cases and other civil actions, other than the ones which have been excluded, would be extremely difficult; that there could arise within a single action a claim which related to personal injury and other aspects of civil action, and it would be very difficult to have two different sets of evidence applied in the single case. I mention that with extreme trepidation because, as I said. I have no personal knowledge; and in this place, unlike another place, I do not have the advantage of having a legal Officer sitting alongside me, as in years gone by Ministers in another place had when the noble and learned Lord sat there in another capacity.
I will say that I am completely satisfied with the reception which your Lordships have given to this Bill. One of the advantages of bringing forward a Law Reform (Miscellaneous Provisions) Bill is that even the most wilful Government could not possibly bring forward a collection of proposals which did not include some which commended themselves to one or other section of your Lordships. I am fortunate that so much in this Bill excites nothing other than a welcome. I shall be happy to co-operate with your Lordships in looking at those two particular aspects which have been the subject of disagreement to-day, and I hope that what emerges will be another Law Reform (Miscellaneous Provisions) (Scotland) Act which will prove generally acceptable to the people of Scotland.
§ On Question, Bill Read 2a, and committed to a Committee of the Whole House.