§ 7.7 p.m.
§ Lord McIntosh of Haringey rose to move, That the draft order laid before the House on 13th April be approved [15th Report from the Joint Committee].
§ The noble Lord said: My Lords, on behalf of my noble and learned friend the Lord Chancellor, I beg to move that the draft order laid before the House on 13th April be approved.
§ The most fundamental reforms of the civil justice system for over 100 years will come into effect on 26th April. The reforms aim to provide a single system of civil justice based on the fundamental principles of proportionality, clarity and efficiency. The civil procedure rules which will come into force on that day are a key aspect of the reforms, a new unified code of civil procedure to implement the expressed objectives of the new system.
§ There are other steps to be taken in this process of reform which, although apparently minor, still make an important contribution to the achievement of the modernisation of the civil justice system. One of those steps is the implementation of the Civil Procedure (Modification of Enactments) Order 1999 which is before the House today. The order is made under Section 4(2) of the Civil Procedure Act 1997, the Act which provided the machinery for the reform of civil procedure. It established the civil procedure rule committee and gave it the task of drafting the new rules of court. When the 1997 Act was passed, it was recognised that certain aspects of the reform might 1292 conflict with existing provisions of primary legislation. Parliament recognised that some changes of substance might be necessary in order to make the new reforms effective. However, it rightly wanted an opportunity to debate the changes before they were made. Section 4(2) of the 1997 Act therefore permits amendments to be made by order to primary legislation in order to facilitate the making of civil procedure rules. Those orders, such as the one before the House today, are subject to the affirmative resolution procedure.
The amendments which this order makes to primary legislation are small but significant. First, the order amends Section 11 of the Courts and Legal Services Act 1990. Section 11 permits the Lord Chancellor by order to provide that there shall be no restriction on the persons who may exercise rights of audience or rights to conduct litigation in relation to proceedings in a county court. That power is restricted to the types of proceedings listed in Section 11(2). Section 11(2)(e) currently provides that the power is exercisable in respect of proceedings,
referred to arbitration in accordance with county court rules made under section 64 of the County Courts Act 1984 (small claims)".
§ These are currently the only proceedings for which an order allowing lay representation in county court proceedings has been made.
§ The civil procedure rules have moved away from treating small claims cases in the county courts as if they had been referred to arbitration. It is a fiction now to think of small claims as arbitration. Article 3 of the draft order amends Section 11(2) of the Courts and Legal Services Act 1990 by referring to small claims instead of arbitration. This will reflect the new rules and allow the current successful practice of permitting lay representation in small claims cases to continue.
§ The other amendment proposed is to the Civil Evidence Act 1995. This Act made new provisions for the admissibility of hearsay evidence and the proof of documentary evidence in civil cases. Before the implementation of the 1995 Act, the law on hearsay evidence was governed by the Civil Evidence Act 1968 which contained an elaborate system of notices and counter-notices to enable parties to adduce hearsay evidence. Parliament greatly simplified the procedures in the 1995 Act by providing that hearsay evidence should generally be admissible in civil proceedings and by providing for notification to be given to the other parties in accordance with the rules of court. Section 16(3) of the Act provided that transitional provisions could be contained in the commencement order but, subject to any such provisions, the Act would not apply to cases begun before the commencement of the Act.
§ The Act was brought into force on 31st January 1997 but, by an oversight, the power to provide transitional provisions was not exercised in the commencement order. As a result, cases commenced before that date were not brought under the new Act and had to continue to apply the cumbersome and expensive provisions of the 1968 Act. Part 33 of the Civil Procedures Rules (1998) contains the mechanism for the admissibility of hearsay evidence under the 1995 Act. The amendment proposed in Article 4 of the draft order allows for rules of court or practice directions to make transitional 1293 provisions for the application of the Act to cases commenced before the 31st January 1997. It is intended that such provision will be made, thus providing that there will be only one set of rules for hearsay in all cases. That in itself will be beneficial. The regime which the uniform rules will apply will be simpler and more economical for litigants.
§ I have explained why the various provisions of this order are necessary. Together they will help to contribute towards the achievement of the objectives of the civil justice reforms. I commend the order to the House.
§ Moved, That the draft order laid before the House on 13th April be approved [15th Report from the Joint Committee].—(Lord McIntosh of Haringey.)
§ Viscount Bridgeman
My Lords, as your Lordships will know, this programme of tidying up the civil legislation has been very much supported on this side of the House. Indeed, much of it was instituted under the previous administration. I therefore commend the order to the House.
§ Lord. McIntosh of Haringey
My Lords, I am grateful to the noble Viscount for his support. I commend the order to the House.
§ On Question, Motion agreed to.