HL Deb 26 November 1987 vol 490 cc737-44

3.31 p.m.

The Lord Advocate (Lord Cameron of Lochbroom)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Cameron of Lochbroom.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clause 1 agreed to.

Clause 2 [Admissibility of hearsay]:

Lord Morton of Shuna moved Amendment No. 1: Page 1, line 23, leave out subsection (2).

The noble Lord said: This amendment is to leave out subsection (2) of the clause which states: Nothing in this section shall affect the admissibility of any statement as evidence of the fact that the statement was made". There is nothing in the clause that on my reading of it could possibly affect this. Therefore I move that the subsection be omitted on the grounds that it adds nothing whatever to the meaning of the clause. I beg to move.

Lord Wilson of Langside

I support the amendment. I had the same difficulty in understanding what led the Government to include it in the Bill. I puzzled over it for some minutes. In a very useful and helpful Bill which has obviously been given a great deal of consideration by the Law Commission and by the noble and learned Lord, it would seem a pity if any part of it was disfigured by an unnecessary provision.

Against that background, I assumed that it was my cerebration, which has never really been above average at any time in my life, which caused me to think as I did. Perhaps in my later years my cerebration has been slowing down. In any event, I could see no reason for this provision. I look forward with great interest to hearing what the noble and learned Lord has to say in justifying its inclusion in the Bill. In the meantime, like my noble friend Lord Morton of Shuna, I must say that I can see no purpose whatever in it.

Lord Cameron of Lochbroom

I am grateful to Members of the Committee who have spoken. Without this subsection the Bill would be silent on the admissibility of a statement purely as evidence of the fact that such a statement was made regardless of the truth or otherwise of that statement. I cannot pretend to the Committee that its deletion would represent a major inroad into the Bill. But, on the other hand, I do not regard its presence there as being a disfigurement.

The provision represents useful clarification that nothing in the Bill's provisions on hearsay evidence affects the direct evidence of a statement having been made. When we are entering into an amendment of the law of evidence it is important to have, so far as possible, clear notice of what the effect of the Bill is. Perhaps with that explanation the noble Lord might feel able to withdraw the amendment.

Lord Morton of Shuna

I still remain of the view that the subsection adds nothing to the Bill. But as it takes nothing away it may as well stay. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 2: Page 2, line 1, leave out subsection (3).

The noble Lord said: I spoke about subsection (3) of Clause 2 on Second Reading. I still find it very difficult to understand why an affidavit should be regarded as a less important statement than a statement and why it should be restricted only to allow hearsay. The purpose of the amendment is to leave out subsection (3). I understand that that may meet with some approval from the Government Benches. Therefore, I move the amendment without further explanation.

Lord Cameron of Lochbroom

This subsection was initially included in the Bill so as to ensure that the apparently general admissibility of statements in Clause 2(1)(b) did not prejudice the existing law providing for affidavit evidence in certain categories of proceedings such as, for instance, the simplified divorce procedure.

On further consideration, I am satisfied that the Bill would not have that undesirable effect. Therefore, to that extent, I am happy to accept the noble Lord's amendment. I must say, however, that consideration of this subsection as a result of the noble Lord's comments on Second Reading has led to further concentration upon a different point.

I still wish to consider whether some provision needs to be made in the Bill to make it entirely clear that affidavits and indeed other specified written statements and reports which are provided for in existing legislation are capable of being received in evidence without requiring to be spoken to by a witness if they satisfy the procedural requirements.

I believe that is an important facet of affidavits, but while I understand that they are usually dealt with in that way there are instances in which the legislation is not entirely clear on the point. I am looking into this matter to ensure that all the implications are considered and to ensure that the Bill deals properly with it. If further provision requires to be made in the Bill, an amendment will be brought forward.

Having said that, as I said earlier, I am happy to accept the noble Lord's amendment to delete what in retrospect has turned out to be an unnecessary provision. I likewise commend it to the Committee.

On Question, amendment agreed to.

Clause 2, as amended, agreed to.

Clause 3 [Statement as evidence as to credibility]:

Lord Morton of Shuna moved Amendment No. 3: Page 2, line 7, leave out ("Without prejudice to section 2(1)(b) above.").

The noble Lord said: The purpose of this amendment is to leave out the first few words of Clause 3. Nothing can be perceived in Clause 3, at least by me, that is prejudiced or might be prejudiced in any way by Clause 2(1)(b). Therefore the amendment intends to leave out the words: Without prejudice to section 2(1)(b) above". I beg to move.

Lord Wilson of Langside

I must say that I have the same reservations about the inclusion of these words at the beginning of Clause (3) as my noble friend Lord Morton of Shuna. It is a daunting circumstance that, contrary to both the view of my noble friend and that of the noble and learned Lord the Lord Advocate, I have the feeling that subsection (3) of the previous clause might well have stood. However, as regards the amendment, I would certainly support it.

Lord Cameron of Lochbroom

I wish simply to say that I am fully persuaded by what the noble Lord opposite has said. I should be happy to accept the amendment.

On Question, amendment agreed to.

Clause 3, as amended, agreed to.

Clauses 4 to 8 agreed to.

Lord Cameron of Lochbroom moved Amendment No. 4: After Clause 8, insert the following new clause:

("Application of certain provisions of Law Reform (Miscellaneous Provisions) (Scotland) Acts 1966 and 1968.

. Section 7 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1966 (admissibility in evidence of certain records in civil proceedings) and sections 9 and 13 to 15 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 (corroboration not required in certain actions of damages, admissibility of statements produced by computers, matters supplementary to such admissibility and procedures relevant to such admissibility) shall not apply to civil proceedings (as defined in this Act).").

The noble and learned Lord said: It may be convenient for the Committee if, in moving this amendment, I speak also to Amendments Nos. 5, 7, 13 and 14. In moving this amendment I am meeting a point which the noble Lord, Lord Morton of Shuna, raised with me during the Second Reading debate. As it is drafted at present, the Bill does not apply to proceedings before tribunals or to arbitrations. This is because they are commonly regulated by their own rules or by the agreement of the parties. I remain of the view that the Bill should not apply to proceedings in which the evidential regime can be set by procedural rules which are made for all proceedings of a certain category. As I said to the noble Lord during Second Reading, a substantial number of such rules already dispense with the strict rules of evidence.

However, the noble Lord asked me to consider whether it might be advisable to ensure that those who wish to enter into an arbitration agreement should have the benefit of the relaxations contained in the Bill unless they specifically choose otherwise. I have to say that I agree with the noble Lord's view on that. I should not wish to have a situation in which parties wishing to deal with a dispute in an informal manner were unwittingly locked into an evidential regime which was stricter than that which they might encounter in the ordinary court. The first amendment of this group deals with this point but goes further than the limited field of common law arbitrations. I think it is right to allow the relaxations in the Bill to be available for other proceedings in which the parties have an option to choose which evidential rules should apply.

This amendment, together with Amendments Nos. 5 and 7, therefore directly meets the point which was raised by the noble Lord opposite at Second Reading. I see that he has himself put down an amendment along similar lines. I am bound to say, however, that his amendment would in my view go further than is necessary or desirable. It would, for example, cover statutory arbitrations which should continue to be regulated by their own statutory provisions. I hope that the noble Lord will accept that this amendment satisfies the point he raised at Second Reading and indeed goes a little further.

The two remaining amendments in this group are consequential upon Amendment No. 4. At present the Bill repeals Section 7 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1966 and Sections 9 and 13 to 16 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968. On further consideration, I take the view that those repeals go too far. For example, the provisions of Sections 13 to 16 of the 1968 Act which deal with computer evidence, while they are now replaced by the hearsay provisions in the Bill in proceedings to which the Bill applies, might still be of benefit to parties who are involved in proceedings to which the Bill does not apply, such as, for instance, industrial tribunal proceedings. The new clause contained in Amendment No. 4 therefore disapplies those provisions in respect of the civil proceedings covered by the Bill. The amendment to the schedule is consequential upon that.

With that somewhat lengthy explanation, I commend the amendment to the Committee and beg to move.

Lord Morton of Shuna

I am grateful to the noble and learned Lord for taking the point that I endeavoured to make on Second Reading and meeting it so fully. I had also endeavoured to cover the point in Amendment No. 6. In the short time I have been in this Chamber, I have learnt that one of the rules is that any Opposition amendment is not to be accepted because of its drafting. Amendment No. 6 has a certain merit compared to the amendments of the noble and learned Lord, but that may only be that it covers four lines instead of several more. However, I am very pleased with the amendments of the noble and learned Lord and I shall not move Amendment No. 6.

On Question, amendment agreed to.

Clause 9 [Interpretation]:

Lord Cameron of Lochbroom moved Amendment No. 5: Page 3, line 29, after ("law") insert ("—(a)").

The noble and learned Lord said: I spoke to this amendment in moving Amendment No. 4. I beg to move.

On Question, amendment agreed to.

[Amendment No. 6 not moved.]

Lord Cameron of Lochbroom moved Amendment No. 7:

Page 3, line 34, at end insert— ("(b) any arbitration not prescribed by an enactment, except in so far as the parties have made specific provision as regards the rules of evidence which are to apply; and (c) any other proceedings conducted wholly or mainly in accordance with rules of procedure agreed between the parties themselves (or as respects which it would have been open to them to agree such rules had they wished to do so) except in so far as any such agreement makes specific provision as regards the rules of evidence which are to apply:").

The noble and learned Lord said: I spoke to this amendment in moving Amendment No. 4. I beg to move.

On Question, amendment agreed to.

3.45 p.m.

Lord Cameron of Lochbroom moved Amendment No. 8: Page 4, line 4, leave out ("and includes") and insert (", proof on commission and").

The noble and learned Lord said: It may be for the convenience of the Committee if, in moving this amendment, I speak also to Amendments Nos. 10 and 11. During the debate at Second Reading I said to the noble Lord opposite that I should look at the commencement provisions in the Bill. The broad purpose of these amendments is to ensure that, if enacted, the Bill will not on the date of commencement force a change in the evidential rules applying to a proof which is under way at the time. The amendment to Clause 10 therefore applies the Bill's provisions to all civil proceedings whenever commenced but makes an exception for those proceedings in which the proof has itself commenced before the date of coming into operaion.

The amendment to Clause 9 deals with the situation in which evidence is taken on commission to lie in retentis pending a proof. As noble Lords will be aware, this can happen for a number of reasons. For example, a witness might be too ill to contemplate attending a trial or proof and in those circumstances a commissioner would be appointed to take his or her evidence. In such circumstances it would seem to me to be unfair for the party requiring to take evidence in that way to be confronted with a change in the rules of evidence between the taking of evidence and the more formal proof itself. The very circumstances requiring him to take evidence in this way might militate against his returning to ask the witness to give further evidence which was excluded but which would now be admissible under the new rules, if the Bill was enacted and had commenced.

The noble Lord, Lord Morton, has put down an amendment to Clause 10, which is Amendment No. 12. I acknowledge his drafting skill in this matter. Perhaps I criticised it on a previous occasion because it went further than I was prepared to go. On this occasion, I hope that he will agree that the amendments to Clause 10 which I have put down have the slight edge in drafting elegance. For that reason, and on the basis that my amendments achieve the effect which the noble Lord sought to achieve in his amendment, perhaps he will feel sufficiently persuaded not to move his amendment. I beg to move.

Lord Morton of Shuna

I am very willing to accept the amendment of the noble and learned Lord and I am also willing to acknowledge that it covers a point which Amendment No. 12 omitted. I congratulate him on that. It is quite easy to do, with my amendments. I wish that the co-operation which has been shown on this Bill had been shown on the Criminal Justice Bill, and I hope it will be shown on the copyright Bill. However, perhaps that is too much to hope.

On Question, amendment agreed to.

Lord Morton of Shuna moved Amendment No. 9: Page 4, line 10, after second ("undertaking") insert ("any local authority").

The noble Lord said: This amendment adds what appears to be a necessary word to a definition. The words "local authority" should be added because it is not certain that they are included in the definition of an undertaking. It is clear that they should be included. I beg to move.

Lord Cameron of Lochbroom

On this occasion I do not cavil at all with the drafting of the noble Lord opposite. It seems to me that the amendment provides a useful clarification to the Bill, by including the reference to "undertaking" and extending it to any local authority. Let me remark that the reference to "any" is notable since it ensures that the Bill, in relation to proceedings in Scotland, also covers the records of local authorities outside Scotland as well as those within Scotland. That is entirely appropriate since the Bill deals with the records of businesses and is not limited to businesses within Scotland. I therefore commend the amendment to the Committee.

On Question, amendment agreed to.

Clause 9, as amended, agreed to.

Clause 10 [Repeals and application]:

Lord Cameron of Lochbroom moved Amendments Nos. 10 and 11: Page 4, line 16, leave out ("the proof has,") and insert ("proof commenced"). Page 4, line 17, leave out (", been concluded").

The noble and learned Lord said: I have spoken to Amendments Nos. 10 and 11 with Amendment No. 8. With the leave of the Committee I move both amendments en bloc.

The Chairman of Committees (Lord Aberdare)

Amendments Nos. 10 and 11 are moved en bloc. I have to point out that if Amendment No. 11 is agreed to I cannot call Amendment No. 12.

On Question, amendments agreed to.

[Amendment No. 12 not moved.]

Clause 10 as amended, agreed to.

Clause 11 agreed to.

Schedule [Enactments Repealed]:

Lord Cameron of Lochbroom moved Amendments Nos. 13 and 14: Page 5, leave out lines 8 to 10. Page 5, leave out lines 11 to 14.

The noble and learned Lord said: I have spoken to Amendment No. 13 along with Amendment No. 14 in speaking to Amendment No. 4. With the leave of the Committee I move both amendments en bloc.

Lord Elwyn-Jones

May I ask the noble and learned Lord whether Scottish legislation always goes through as smoothly and as sweetly as this? If it be the case with regard to Scottish legislation, will be exercise his influence to achieve the same willingness and preparedness to concede as he has on this undoubtedly important measure when we return to the Criminal Justice Bill next Tuesday?

Lord Cameron of Lochbroom

In these matters concessions come from both quarters, or both halves, I should say. I have been very happy in what I have been able to achieve today on this Bill. I hope that it might be an augury for the approach which the Opposition Benches will take to the Criminal Justice Bill and indeed to the Patents Bill next week.

On Question, amendments agreed to.

Schedule, as amended, agreed to.

House resumed: Bill reported with amendments.