HL Deb 10 December 1987 vol 491 cc310-3

3.21 p.m.

Report received.

Clause 1 [Rule requiring corroboration abolished]:

The Lord Advocate (Lord Cameron of Lochbroom) moved Amendment No, 1: Page 1, line 10, leave out ("in relation to civil proceedings").

The noble and learned Lord said: My Lords, this is a technical amendment to remove unnecessary words from Clause 1(2). I beg to move.

On Question, amendment agreed to.

Clause 2 [Admissibility of hearsay]:

Lord Cameron of Lochbroom moved Amendment No, 2: Page 2, line 2, at end insert— ("(3) In paragraph (e) of section 16 of the Administration of Justice (Scotland) Act 1933 (power to make provision as regards the Court of Session for admission of written statements etc. in lieu of parole evidence), for the words "the admission in lieu of parole evidence of written statements (including affidavits) and reports, on such conditions as may be prescribed" there shall be substituted the words "written statements (including affidavits) and reports, admissible under section 2(1)(b) of the Civil Evidence (Scotland) Act 1987, to be received in evidence, on such conditions as may be prescribed, without being spoken to by a witness". (4) For paragraph (3) of section 32(1) of the Sheriff Courts (Scotland) Act 1971 (corresponding power to make provision as regards the sheriff court) there shall be substituted the following paragraph— (e) providing in respect of any category of civil proceedings for written statements (including affidavits) and reports, admissible under section 2(1)(b) of the Civil Evidence (Scotland) Act 1987, to be received in evidence, on such conditions as may be prescribed, without being spoken to by a witness,".")

The noble and learned Lord said: My Lords, in Committee, when accepting an amendment put down by the noble Lord, Lord Morton of Shuna, to delete what was then Clause 2(3) of the Bill, I indicated that I wished to be certain that the Bill dealt properly with the question of evidence given by way of written statements. Procedural rules made under the powers contained in the Administration of Justice (Scotland) Act 1933 and the Sheriff Courts (Scotland) Act 1971 provide for the admission in certain categories of case of written statements, including affidavits and reports in lieu of oral evidence. Power is also given to prescribe conditions which must be satisfied before the document is admitted.

These rules serve two purposes. First, they ensure that statements are admissible. Clause 2(1)(b) of the Bill provides for the admissibility of statements made other than during the course of a proof; and to that extent the rules would be otiose. The second purpose is to provide in appropriate circumstances that the statement will be capable of being received in evidence without requiring to be spoken to in any further way—in short, to be "self-proving". As I mentioned during the debate in Committee, there are instances where it is not entirely clear on the face of the rules whether production of a statement in satisfaction of the prescribed conditions will render a document self-proving. This appears to he generally accepted in practice, however.

I think it right that we should take the opportunity presented by the Bill to make it clear that the court does have power to provide that documents which are otherwise admissible and satisfy any prescribed conditions can be self-proving. In this way I believe that a proper distinction will be established as between those statements admissible under Clause 2, but requiring authentication, and those statements to which the court has decided to accord special status as being not only admissible under Clause 2 but also self-proving in the particular circumstances prescribed by rules of court.

I have said that the rules will be overtaken by Clause 2(1)(b). It would surely be inappropriate to leave in place a power to make rules purporting to render written statements, including affidavits, admissible. Such a power could not be properly exercisable in so far as all such documents will in future be admissible. The amendment makes it clear that for the future the power to make rules in this regard does not extend to matters of admissibility.

This amendment therefore refines the existing powers in the 1933 and 1971 Acts to clarify that the rules of court may provide that in any specified category of case a written statement otherwise admissible will be taken to be the statement of the person alleged to have made it, provided that it satisfies any prescribed conditions as to authentication.

This is an important matter and one to which considerable thought has been given both inside and outside this House. It has resulted in an amendment which I consider effects a considerable improvement to the Bill. I have sought the views of the Lord President of the Court of Session and he is content with the manner in which, as a result of this amendment, the Bill would deal with rules of court. I beg to move.

Lord Morton of Shuna

My Lords, the noble and learned Lord has taken up at this stage all but one of the points I tried to raise at Second Reading and in Committee. He has taken the areas which I tried to amend and refined and polished my amendments. I am delighted and very much welcome the helpful and constructive approach that he has taken.

On Question, amendment agreed to.

Clause 9 [Application of certain provisions of Law Reform (Miscellaneous Provisions) (Scotland) Acts 1966 and 1968]:

Lord Cameron of Lochbroom moved Amendment No. 3: Leave out Clause 9.

The noble and learned Lord said: My Lords, it may be for the convenience of the House if in moving this amendment I also speak to Amendments Nos. 4 and 5.

This package of amendments is the result of further consideration of the question as to what types of proceedings should come within the ambit of the Bill. At present, as well as applying to ordinary courts, the Bill applies to common law arbitrations and other proceedings where the parties can exercise control over which rules of evidence are to regulate their case. I accept it to be a logical extension of the policy to have the Bill apply on the same footing to statutory arbitrations, tribunals and inquiries. In this way the Bill will provide a uniform basis of evidential rules for all the proceedings mentioned. If this and the succeeding amendments are accepted, the Bill will apply to the whole range of civil proceedings but it will make the important distinction that different evidential rules can be applied to those proceedings where it is competent to do so by, for example, tribunal rules or by agreement of parties in arbitrations.

The remaining amendments are consequential. The inclusion of proceedings which were originally not covered by the Bill enables the provisions of the Law Reform (Miscellaneous Provisions) (Scotland) Acts 1966 and 1968 to be repealed in the schedule to the Bill. With that understanding, I beg to move.

On Question, amendment agreed to.

Clause 10 [Interpretation]:

Lord Cameron of Lochbroom moved Amendment No. 4: Page 3, leave out from beginning of line 42 to ("and") in line 44 and insert— ("( ) any arbitration, whether or not under an enactment, except in so far as. in relation to the conduct of the arbitration, specific provision has been made as regards the rules of evidence which are to apply; ( ) any proceedings before a tribunal or inquiry, except in so far as, in relation to the conduct of proceedings before the tribunal or inquiry, specific provision has been made as regards the rules of evidence which are to apply:").

The noble and learned Lord said: My Lords, I beg to move.

On Question, amendment agreed to.

Schedule [Enactments Repealed]:

Lord Cameron of Lochbroom moved Amendment No. 5:

Page 6, line 7, at end insert—

("1966 c. 19. The Law Reform (Miscellaneous Provisions) (Scotland) Act 1966. Section 7.

1968 c. 70 The Law Reform Miscellaneous Provisions) (Scotland) Act 1968 Section 9. Sections 13 to 16. In section 17(3), the definition of "computer".")

On Question, amendment agreed to.

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