Civil Evidence (Northern Ireland) Order 1997 (Hansard, 4 December 1997)

§ Lord Dubs
rose to move, That the draft order laid before the House on 28th October be approved.
The noble Lord said: My Lords, the order implements the report of the Law Reform Advisory Committee for Northern Ireland on hearsay evidence in civil proceedings, published on 27th October 1996. I pay tribute to the expertise of the committee, under the then chairmanship of Sir Robert Carswell, in its work on this difficult area of law reform.
This is a fairly short but very technical order. It effectively abolishes the common law rule excluding the admission of hearsay evidence as far as civil proceedings are concerned. It also abolishes the common law exceptions to that rule, but with certain safeguards which I shall mention. It also re-states the rules of evidence relating to the admission of previous statements of witnesses in proceedings in line with the changes to the hearsay; and it makes provision for the proof of certain documents and records.
The order is broadly similar to the Civil Evidence Act 1995 for England and Wales. That Act implemented the Law Commission's report on the hearsay rule in civil proceedings, published in September 1993. The order is similar to the 1995 Act, but there are some differences in the recommendations of the Law Reform Advisory Committee, which are being implemented in this order, and the order reflects those differences. I shall mention one of the main differences. The order, unlike the 1995 Act, does not contain a specific requirement to serve a notice of intention to adduce hearsay evidence, although the question of notice and its sufficiency goes very directly to the consideration of the court in weighing 1496 the hearsay evidence. I emphasise that the draft order implements all the recommendations of the Law Reform Advisory Committee.
I turn briefly to the main provisions of the order. Article 2 provides for the interpretation of the order and I draw particular attention to the definition of "civil proceedings". In essence the order applies to civil proceedings in which the strict rules of evidence apply. Article 3 abolishes the common law rule against the admission of hearsay in civil proceedings, subject to the safeguards in Articles 4 to 6.
Article 4 paves the way for other parties to call the maker of a hearsay statement and cross-examine him as a witness. Article 5 sets out guidelines for the court in weighing hearsay evidence and Article 6 contains various rules as to the competence of the maker of a hearsay statement and the credibility of that person.
Article 7 re-states, with amendments, the rules relating to previous statements of witnesses. Articles 8 and 9 provide for the admission and proof of statements in various documents and records. Article 10 re-enacts, for Northern Ireland, provision already contained, for England and Wales and Northern Ireland, in Section 10 of the Civil Evidence Act 1995, which section is not yet in force. The order is a technical but useful measure of law reform. I beg to move.

§ Lord Cope of Berkeley
My Lords, the Minister says that the order follows the 1995 Act covering Great Britain. Can he tell us whether the early days of the working of that Act have been regarded as satisfactory by those involved with it in the courts? It seems to me that those of us who are parliamentarians and politicians cannot complain about the use of hearsay evidence since we rely continually on hearsay evidence. Is there any hearsay evidence about the operation of the 1995 Act in Great Britain?
I understand that the reason for the non-admissibility of hearsay evidence in criminal cases is thought to be that it might mislead juries. In Northern Ireland, in the Diplock courts, there are no juries. It is thought possible that the principle of hearsay evidence might be extended to such courts. I think that that would be difficult but I should like to know whether the Government are considering it.
I echo the thanks of the Minister to Lord Justice Carswell and to the committee for its work in preparing the ground for the order.

§ Lord McConnell
My Lords, I too welcome the introduction of this order. As we were told, it is broadly similar to the Civil Evidence Act 1995. But what puzzles me is why the provisions for Northern Ireland were not included in that Act when it was a Bill before this House and the other place. Why do we need such an unsatisfactory procedure whereby an order, which cannot be amended—not that I seek to amend it—has to be brought separately before the House? The process whereby Northern Ireland legislation is brought before us as an order and we are told to take it or leave it 1497 has gone on for far too long. It is time the Government reconsidered this procedure which they so frequently bring before us.
I agree that the exclusion of hearsay evidence is no longer necessary in Northern Ireland because in civil cases there is no longer a jury and the decisions are made by the judge. The original idea in excluding hearsay was in case the jury attached too much weight to evidence that was not reliable. When it is being considered by a judge, he will be able to assess the weight of the evidence before him, and therefore this safeguard is no longer necessary.
I join in congratulating the Law Reform Advisory Committee on the work it has put in on this subject.

§ Lord Molyneaux of Killead
My Lords, I rise briefly to support what was said by my noble friend Lord McConnell and also to say that I particularly welcome Article 8 regarding proof of statements contained in documents. When, in a previous incarnation, I was sitting as a justice of the peace, time and again one was hampered by the unavailability of a certain document. On those occasions when a copy was obtained, I was required by law to reject the document because it was not the original.
I know that technology has moved on greatly since then, with copying and fax machines, and sometimes they need to be scrutinised carefully. But that is provided for in the words, in such manner as the courts may approve". A district court, a county court or a High Court therefore has the discretion at its disposal to judge the authenticity and validity of documents. I have pleasure in supporting the order in general.

§ Lord Alderdice
My Lords, I too thank the Minister for his description of this fairly technical but nevertheless important piece of legislation. I also tender my thanks to the Law Reform Advisory Committee for Northern Ireland for its work on the matter.
I do not want to refer to the details of the legislation; they are basically welcome, as other noble Lords have said. I want to pick up on a comment made by the noble Lord, Lord McConnell, though from a slightly different point of view, and seek some advice from the current Government on their view.
The noble Lord mentioned that in most senses—not absolutely, but in most senses—this piece of legislation is a reiteration of the Civil Evidence Act 1995. It was asked why such legislation should not incorporate Northern Ireland. I am one of those who is absolutely committed to devolution and obviously there is a case for keeping a separate Northern Ireland statute book.
Given the evidence of the past couple of weeks, which has been positive in terms of the talks in Northern Ireland, I hope that we may be looking towards some kind of legislative body in Northern Ireland within a reasonable time. In the light of that—this may apply to other parts of the United Kingdom—have the Government given any thought to how to approach the question of which pieces of legislation will be carried 1498 forward by a Bill which refers to England, Wales and Northern Ireland (Scotland has a different form of law) and which will be carried forward separately for Northern Ireland even when Northern Ireland has its own legislature?
I am not sure that the Minister will be able to reply. However, it is an important time. Government have not fully considered the implications of this and should perhaps be giving some thought to it. I hope that it may not be long before it will be very relevant indeed. I await with interest to hear what the Minister says.

§ Lord Dubs
My Lords, I thank those noble Lords who have contributed to this short but interesting debate. Perhaps I may try to deal with the various questions that were asked.
The noble Lord, Lord Cope, asked what experience we had had with the Civil Evidence Act operating in England and Wales. It is too early to comment fully on the Civil Evidence Act because it only recently came into force. However, we have had no negative feedback, and evidence from other common law jurisdictions suggests that the order should work well in practice. Until we have a longer period of experience in England and Wales I cannot be more helpful to the noble Lord.
The noble Lord asked also about the Diplock courts. The remit of the Law Reform Advisory Committee does not extend to the criminal law in Northern Ireland. Hence that committee made no recommendations on this issue. The Law Commission's report on hearsay evidence in criminal proceedings is under consideration but the Government have no plans to extend the changes suggested by the noble Lord to the Diplock courts.
The noble Lords, Lord McConnell and Lord Alderdice, with a somewhat different emphasis, asked about the use of the procedure of Order in Council legislation. That is an issue which goes well beyond this order and covers a great deal of Northern Ireland legislation. Let me state the principles.
Orders in Council are an established means of making primary legislation for Northern Ireland in the circumstances of direct rule. The Government recognise the defects of the system but it is not practical, nor necessarily desirable, that all the Northern Ireland provisions should be enacted by a Bill at Westminster. However, we are always ready to consider with an open mind whether a Bill should be used to legislate on a matter which might otherwise be dealt with by an Order in Council. For reasons of practicality, that cannot always be the case; each instance is looked at on its merits. The Bill that is under debate in this House dealing with processions in Northern Ireland is a precise example of a Bill that it was thought should go through the full parliamentary process.
Let me also refine the answer in terms of this specific measure. It was decided not to extend the Civil Evidence Act 1995—which was based on a Law Commission Report—to Northern Ireland because at that time Northern Ireland's own independent law reform body, the Law Reform Advisory Committee for Northern Ireland, was examining the subject with a view to bringing forward its own proposals. Civil evidence has 1499 always been dealt with in Northern Ireland by way of separate legislation and in a number of respects the law in Northern Ireland differs from that of England and Wales.
Against that background of a separate legislative framework, the Law Reform Advisory Committee, under its chairman, now Lord Chief Justice Sir Robert Carswell, put forward recommendations which in some respects differed from the 1995 Act. The Government accepted the committee's recommendations in full. That meant that the most appropriate method of implementing the recommendations for reform in Northern Ireland was by the procedure we have before us today.
The noble Lord, Lord Alderdice, covered the same point but with somewhat different emphasis. The Government are not dogmatic in their attitude towards legislating for Northern Ireland. We look at each piece of legislation on a case-by-case basis. There are benchmarks used in coming to decisions about how to legislate for Northern Ireland that are based on the Northern Ireland Constitution Act 1973. That categorises legislation as accepted, transferred or reserved matters. Civil evidence falls between transferred or reserved matters and as such is suitable for legislation by way of an Order in Council under the Northern Ireland Act 1974.
I appreciate that the noble Lord, Lord Alderdice, was asking more about the future than about the present. It is something that will have to be considered as the talks process develops. But the noble Lord will understand that it is difficult for me to give a broad and significant long-term answer this afternoon, as I was not prepared for his question when he asked it. However, I agree that it is an important and reasonable question at the present time.