§ Order for Second Reading read.
§ 7 pm
§ The Parliamentary Under-Secretary of State for Scotland (Lord James Douglas-Hamilton)
I beg to move, That the Bill be now read a Second time.
This morning I was in Falkirk to inaugurate the building of the new sheriff court; if the Bill becomes an Act the new evidential requirements will be practised in that court.
The Bill is the Government's response to the Scottish Law Commission's report on corroboration, hearsay and related matters. That report was published in May 1986. The report is part of the Scottish Law Commission's overall consideration of the law of evidence. That subject was included in the Scottish Law Commission's first programme of law reform.
I am sure that hon. Members who represent Scotland and elsewhere and who are present would wish me to take the opportunity to pay tribute to the detailed consideration which has been given to this particular matter by the commission. The House would not, of course, expect anything less. Since its establishment by the Law Commissions Act 1965, the commission has produced a substantial number of reports dealing with a considerable range of issues. Those issues cover a wide spectrum of activity, some involving complex and technical legal matters, others involving matters of great social importance.
The Scottish Law Commission was set up by section 2 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law of Scotland. Those somewhat formal words might suggest that the proposals put forward by the Commission are restricted to technical legal matters—"lawyers' law"—as some might put it. As I have suggested, that is far from the case. One has only to think of measures such as the Bankruptcy (Scotland) Act 1985 and the Debtors (Scotland) Act 1987 and family law legislation to realise that the areas of law dealt with by the Scottish Law Commission involve, to a considerable extent, the individual people of Scotland. The commission's work goes wider than that, as it can, in concert with its counterpart, the Law Commission for England and Wales, produce joint reports on matters of a United Kingdom interest and application. A recent example of such a report is the joint report on choice of law rules in marriage.
I think that the general regard in which the work of the commission is held can be ascertained from the rate of implementation of its reports. In its 22nd annual report the commission comments in paragraph 1.21:the rate of implementation by Parliament of our proposals continues to be a source of much encouragement to us".I have worked out that, since its establishment in 1965, the Commission has produced 107 reports. That includes of course the commission's programmes of law reform and its annual reports. Of the 82 proposals that have been made for reform of the law, 72 have already been 736 implemented and a number of those remaining unimplemented, include recent reports, one of which is the report that we are considering.
I am sure that my colleagues on the Front Bench will not take it amiss if I say that the Government cannot claim complete credit for the number of reports recently implemented. Over the years, a number of Scottish Law Commission reports have been implemented by private Members' Bills. In the past, as a Back Bencher, I played a part in the removal of the stigma of illegitimacy by promoting the Law Reform (Parent and Child) (Scotland) Bill to implement the recommendations of the Scottish Law Commission in its report on illegitimacy. For that Bill I even rated a minor mention along with the noble and learned Lord Wilson of Langside, in the Scottish Law Commission's 21st annual report covering its work during 1985–86. I have been glad to support the work of the commission and to have the good fortune to secure t he enactment of some of its proposed reforms. So it is especially interesting now to be involved in the law reform process once again.
Hon. Members will know that reports of the Scottish Law Commission generally proceed after a comprehensive consultation process. That usually involves the issue of a consultative memorandum to interested people and bodies. Views on the proposals are then taken into account by the commission in coming up with its final recommendations contained in the report.
The Bill is no exception to that arrangement. in 1980 the commission produced consultative memorandum No. 46 inviting comments on propositions for reform of many aspects of the law of evidence. The commission" in paragraph 1.1 of the report, expressed its gratitude for the many constructive comments it received. In preparing its report, the commission also had the benefit of a research, paper on the law of evidence prepared by Sheriff Macphail. I know that that paper is highly regarded by those with an interest in the law of evidence. Indeed, I note that the hon. and learned Member for Fife, North-East (Mr. Campbell) has a copy.
The report on which the Bill is based is therefore clearly the result of careful consideration by the Scottish Law Commission. It is worth making the point that when the report was submitted to my noble and learned Friend the Lord Advocate he also arranged for views to be sought on the commission's actual recommendations. Those views were, of course, carefully considered by my noble and learned Friend before he formulated the policy now contained in the Bill. On Second Reading in the other place my noble and learned Friend paid tribute to those who had taken the trouble to comment on the consultation carried out on his behalf. I have no hesitation in echoing his tributes. The comprehensive consultation carried out by the commission and by my noble and learned Friend, the detailed scrutiny of the proposals and recommendations and the constructive comments and criticisms received have meant that the Bill has what I believe to be a very sound base for the reforms contained in it.
It would be for the convenience of the House if I took this early opportunity to make it clear that the Scottish Law Commission's proposals are concerned with evidence in civil proceedings only. As the title of the Bill implies, it does not in any way disturb the existing requirements on corroboration and hearsay in criminal proceedings.
737 In arriving at the recommendations contained in its report, the Scottish Law Commission had in mind two guiding principles:First, that the law should be simplified to the greatest degree consistent with the proper functioning of a law of evidence; and, secondly, that as a general rule all evidence should be admissible unless there is good reason for treating it as inadmissible.To my mind those are principles with which all hon. Members present could readily agree. I think that they would commend themselves particularly to those of us who have sought to unravel some of the existing complexities of the law of evidence while advising clients or trying to present a case in court.
When the Scottish Law Commission came to apply those guiding principles to the existing law of evidence, it found that in certain elements the rule requiring corroboration and the rule against hearsay could present barriers to the presentation of an otherwise good case. The commission took the view that, although corroboration had been regarded as a safeguard against the acceptance of unreliable evidence, its consideration of current law and practice led it to conclude that a formal requirement of corroboration was not in the overall interests of justice. It arrived at similar conclusions on the rule against hearsay. It found that the development of the rule against hearsay had led to its acquiring qualifications and exceptions that made the law complex and difficult. It involved fine and difficult distinctions. The commission came to the view that the exclusion of hearsay could, in many cases, lead to a risk of injustice.
I shall deal later in a little more detail with the difficulties of the present law. Suffice it to say for the moment that the commission recommended in broad terms the abolition of the requirement for corroboration and the abolition of the rule against hearsay. The aim is to achieve a situation in which, in very general terms, a court should have available to it all the relevant evidence from whatever source. The Bill implements those recommendations and achieves that aim in clauses 1 and 2.
Having set the scene, as it were, I think that it would be helpful to the House if I dealt with the Bill in detail.
Clause 1 implements the first main recommendations of the Scottish Law Commission, which is to abolish the requirement for corroboration in civil proceedings. I think that it would be helpful to hon. Members if I briefly ran over the position under the present law. This will, I think, serve to illustrate why the House should, in the Government's view, look favourably on the abolition of corroboration.
As hon. Members know, under the present law the general rule is that to be successful a party must establish his ground of action by providing certain crucial facts. The general rule is that a crucial fact cannot be proved by the testimony of one witness alone. That witness's testimony must be supported by evidence from another source—in other words, corroborative evidence.
For example, let us suppose that the hon. Member for Glasgow, Garscadden (Mr. Dewar) were to engage a builder to construct a wall and laid down requirements that it should be a 6 ft high wall made of red brick. Let us suppose also that the result was that the hon. Member found that the wall had been built of yellow brick and to an entirely different specification. Now, if the hon. 738 Member was a prudent man, he would have had all the specifications written down in a written contract. However, if he had not written it down, because the pressures of parliamentary business were too great and he had conducted the matter quickly by telephone, he would not have any corroboration of the fact that he had requested the wall to be built according to certain specifications and colour. In those circumstances, he would have little chance of success if he pursued the matter in law against the builder.
Let me make it clear that I do not for one minute discount the importance of corroboration. However—this is one of the key factors in my argument—what we are considering is whether, as a matter of law, someone should always be precluded from success if he is unable to provide corroboration on every point necessary for the establishment of his case. Hon. Members will, I am sure, agree that such a situation should be avoided if the law of evidence is to cater for the proper resolution of disputes in civil proceedings.
If we were to look at the development of case law in this area, we would come across instances where the courts have found it possible, when satisfied as to a witness's reliability, to be satisfied also that corroborative evidence can be found in what the Scottish Law Commission describes ascircumstantial evidence of flimsy or doubtful import".
Some hon. Members may ask why, if the courts are, in certain circumstances, prepared to find corroboration so readily, the requirement needs to go. However, although such instances can be found, equally there are instances where a court has been compelled, however unwillingly, to come to a decision based on the absence of corroboration. There is therefore a view that in certain circumstances an otherwise honest and credible case is doomed to failure—indeed, is doomed never to be heard—simply because the often technical barriers of corroboration cannot be surmounted.
Parliament has sought to remedy this situation, albeit in piecemeal fashion. For example, in section 9 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968— [Interruption.] Perhaps the hon. Member for Paisley, South (Mr. Buchan) was a Minister involved in that legislation.
In section 9 of that Act the requirement for corroboration was removed in actions for damages for personal injuries. More recently, under the powers in section 2(2) of the Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983, my noble and learned Friend the Lord Advocate made orders prescribing undefended divorce cases based on two and five-year separations as actions in which corroboration is not required.
§ Mr. Donald Dewar (Glasgow, Garcadden)
I am encouraging the hon. Gentleman to go on rather more lengthily than he otherwise would. He referred to the debate on section 9 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968. No doubt he will have read of the splendid attack on that led by the present Lord Wylie from the Conservative Front Bench, and will remember that the Conservatives voted to exclude that clause from the Bill. I wonder why there is the change of mind.
§ Lord James Douglas-Hamilton
I am glad to say that we are only too happy to learn from experience. When the Bill 739 was submitted in the other Chamber, both Front Benches gave it a warm welcome. One of the key points was that for over 20 years the Act had been successful in that respect and there had not been any problems.
The House will see, therefore, that the removal of the requirement for corroboration is not a novel idea. In the cases I have just mentioned, the provisions have worked well and have not had any adverse effect on the administration of justice. In addition, hon. Members will be aware that certain types of civil dispute, involving matters of considerable importance to the parties, are determined by tribunals and inquiries. Many of these bodies operate under their own procedural rules in which their deliberations are not bound by the strict rules of evidence applied in the courts. For example, under the rules of procedure for Scottish industrial tribunals, a tribunal is notbound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law".
The position of tribunals is now well established under our present law as an effective and efficient means of resolving certain types of dispute. I have already mentioned the important role that they play in matters which are of substantial importance to the parties involved. Their effectiveness is due in no small measure to their ability to consider all relevant evidence, even though that evidence may be uncorroborated or may be hearsay.
The Bill preserves that important feature of tribunal proceedings, while still allowing the conduct of their proceedings to be specifically regulated by their own tailormade rules.
The example and experience of tribunal proceedings is a useful piece of evidence in support of the relaxation of corroboration and hearsay requirements in all civil proceedings.
§ Mr. Menzies Campbell (Fife, North-East)
Can the hon. Gentleman tell us whether what he has said applies in the case of someone wishing to make a complaint relating, for example, to defective dental treatment? Do not the regulations and rules relating to tribunals of that nature require corroboration? Does the Bill do anything to relax that requirement?
§ Lord James Douglas-Hamilton
The tribunals are able to make their own rules, and in certain cases the parties concerned come to an agreement. The Bill would generally relax the rules relating to civil procedures, but, as the hon. and learned Member for Fife, North-East has said, there may be exceptions. I will look at the case he has mentioned and write to him in due course.
§ Mr. Dewar
The hon. Gentleman is making a virtue of the fact that the Bill ensures that, unless special arrangements are made by the parties to reinstate hearsay and corroboration as it is now, they will have the advantage of relaxation. If I remember rightly, that came about as the result of an amendment from Lord Morton of Shuna and not from the Government.
§ Lord James Douglas-Hamilton
I make it clear to the hon. Member for Garscadden that we welcome good ideas from wherever they come, and the hon. Member's colleague, Lord Morton of Shuna, welcomed the Bill in the House of Lords. There is no dispute between us on that point.
740 When the Scottish Law Commission went to consultation on its proposals, the majority of commentators were in favour of the abolition of the requirement for corroboration. That was true also of the consultation carried out on behalf of my noble and learned Friend the Lord Advocate.
For the reasons that I have outlined, the Scottish Law Commission concluded that the requirement for corroboration should be removed in civil proceedings. I fully endorse that recommendation, and take the same view as the Faculty of Advocates. In responding to consultation on behalf of my noble and learned Friend the Lord Advocate, it said that the retention of the requirement for corroborationis out of keeping with the general trend in the development of the law of evidence to remove technical obstacles from the path of truth finding".I should say to the House that the rules on corroboration and hearsay have substantial practical implications.
The requirement for corroboration can lead to unnecessary expense, delays and inconvenience. One difficulty in this area of the law is that it is not always easy to judge what are the essential facts that must be proved and thus require corroboration. Such a fact may be only a relatively minor link in the chain of evidence and, indeed, may not be contested by the other party. However, a party's advisers may feel that there would be substantial risk of the entire case collapsing because what at first appeared to be a minor point was uncorroborated. That leads to their producing as much corroborative evidence as possible with consequent extra work, expense and taking up of court time.
Under the Bill, while a party would still seek to produce corroboration on major points in dispute, he would be able to do without such corroborative evidence on matters that, although technically essential, are, in practice, formalities. If that were so, I believe that there would be valuable savings both for the parties in preparing cases and in court time.
I appreciate what the hon. Member for Garscadden said about the importance of the best evidence being available to the courts—[Interruption.] Well, that was the implication behind his question.
§ Lord James Douglas-Hamilton
Hon. Gentlemen can elaborate on their comments in due course.
I should perhaps stress that we are here dealing with questions of admissibility. The Bill does not in any way fetter the power of the courts to decide what weight should be placed on a particular item of evidence. That is an important point, and I am glad to take this opportunity to stress it. The Bill seeks to remove the technical barriers of corroboration, while at the same time retaining the judge's power to decide whether he is satisfied with any particular piece of evidence before him.
The Bill takes the opportunity in clause 1(2) to abolish specifically the concept of corroboration by false denial. That is a special rule applicable only in cases for the establishing of paternity. Under the rule, denial by a defender in the witness box of a material fact which is later proved to be true may be accepted as corroboration of the pursuer's evidence as to paternity. The rule has been described asat best a doubtful doctrine".
741 The second main recommendation proposed by the commission is the abolition of the rule against hearsay. That is implemented in clause 2. I think that it would be of benefit to the House and might again serve to illustrate the need for reform if I dealt briefly with the existing law. Under the present law, hearsay evidence is generally not admitted. The rule is, broadly speaking, to the effect that statements made other than by a witness giving evidence in court are inadmissible. The rule applies to both oral and written statements.
However, the present law admits a number of exceptions to the general rule of hearsay. I have mentioned already the practical problems of the requirement for corroboration. Similar problems arise through the exclusion of hearsay evidence. In many cases, the point to which the evidence is directed is a minor or uncontroversial one which the other party is unlikely to dispute. I have already said that in practice such hearsay evidence is often admitted—that was the view of the commission.
However, as with corroboration, a party seeking to establish that fact cannot be certain of the evidence being admitted and thus may go to considerable trouble, expense and time to ensure that direct evidence is available to prove a fact that is not a major issue in the case. The expense and difficulty may be out of all proportion to the importance of the point and in such a case, the rule against hearsay may be said to operate to increase the cost of litigation unnecessarily. Abolition of that rule would therefore contribute to savings both in expense and in court time.
In considering whether the law relating to hearsay should be reformed, the Scottish Law Commission felt that the number of problems and inconsistencies pointed towards the need for relaxation.
For example, res gestae forms an exception to the general rule against hearsay. [HON. MEMBERS: "Define it."] Hon. Members have asked me to define it. Res gestae are statements which form an integral part of, or are closely connected with, the facts in issue and go to the essence of a case. Thus, a witness could give evidence that he heard an injured colleague at work shout, "Look out," just before an accident. Although strictly speaking hearsay, that evidence would be admitted under the res gestae rule. The difficulty is in deciding how closely connected with the event the statement has to be.
Problems also arise with what are termed extra-judicial admissions. For example, an admission by one party is admissible as evidence against himself or herself but not as evidence against a co-defender. That is an example of a court having the difficult task of having to admit a statement for one purpose, but to ignore it for another.
The Scottish Law Commission concluded, therefore, that the existing law, with its general prohibition and detailed exceptions, was unduly complicated. Hon. Members will say that a lot of our law is unduly complex. More importantly, however, the commission took the view that exclusion of hearsay evidence operated unreasonably to exclude potentially valuable evidence. I fully accept that view. There are numerous instances where hearsay evidence is quite simply the best evidence available. To exclude it because of technicalities serves only, in my view, to deny the courts the opportunity to hear all the relevant evidence.
742 I am supported in that view by reference to the comments of Lord Wilberforce in Waugh v. British Railways Board, a case heard in the Appeal Court in 1980. Speaking of a report made shortly after a railway accident, Lord Wilberforce said:It is clear that the due administration of justice strongly requires disclosure and production of this report. It was contemporary. It contained statements of witnesses on the spot. It would be not merely relevant evidence but almost certainly the best evidence as to the cause of the accident.The present exceptions to the rule against hearsay do not provide a satisfactory solution. They have, as the commission states, been developed ad hoc to meet particular difficulties.
We have, of course, examples already of the relaxation of the rule against hearsay. In practice, it is quite common for hearsay evidence to be admitted by the courts in matters which are not of overwhelming importance. In addition, I have already cited the relaxation of corroboration requirements in proceedings before tribunals and inquiries. Those proceedings also allow hearsay evidence without any apparent diminution of the standard of justice.
It is fair to say that the consultation carried out on behalf of my noble and learned Friend, the Lord Advocate revealed a number of substantial comments and criticisms against the proposal to abolish the rule against hearsay. For example, the sheriffs association opposed the recommendation largely on the grounds that hearsay is not the best evidence. It was suggested also that the law should be reformed by extension and clarification of the existing exceptions to the general rule against hearsay.
§ Mr. Kenneth Hind (Lancashire, West)
My hon. Friend has no doubt had an opportunity to consider the Civil Evidence Act 1968 for England and Wales. It is interesting to note that the Scottish Law Commission drew a parallel between the Bill and the 1968 Act, and recommended that the party against whom hearsay evidence is to be used should put the other party on notice. Has my hon. Friend now totally discounted that as a possibility? Such an action would be taking one by surprise and would be almost ambush evidence. Has my hon. Friend decided not to pursue that?
§ Lord James Douglas-Hamilton
My hon. Friend has raised an important point to which I shall come in a moment. On consultation, the Association of Sheriffs Principal made it quite clear that it was not in favour of the notice procedure. The Association of Reporters of Children's Panels was against the notice procedure, as was the Convention of Scottish Local Authorities, Lord Elliot of the Lands Court and the Faculty of Advocates. However, I shall come to that in a moment, together with the reasons why the Government rejected that view.
The Association of Sheriffs Principal was concerned that reform of the law might make the situation more complex. I think it fair to say, however, that its comments were directed more at what it saw as procedural difficulties.
On the other hand, the Faculty of Advocates expressed broad agreement with the proposed abolition. A working party of Court of Session judges also conceded that some judges of the Court of Session held the view that the hearsay rule might, with advantage, be abolished. The Bill has got it right in its abolition in clause 2 of the rule against hearsay. While I fully appreciate the views of those who were opposed to, or at least wary of, such a reform, I do 743 not think that retention of a complex rule or its modification would meet the needs of a law of evidence whose rules must cope with the problem of ensuring that all relevant evidence is available to the court.
§ Mr. Michael Fallon (Darlington)
My hon. Friend has referred to evidence being relevant. Can he confirm that the admissibility of hearsay evidence is changed under clause 2 and that hearsay evidence admitted will be subject to the same, and no less strong, tests of relevance as any other evidence?
§ Lord James Douglas-Hamilton
It will be for the court to give appropriate and due weight to all the evidence before it. The more distant the evidence, the less weight it will carry, which stands to reason.
§ Mr. Hind
My hon. Friend the Member for Darlington (Mr. Fallon) has raised an important point. If one of the parties has no notice of the evidence and is not able to test it, it will be difficult to cross-examine on that evidence. The judge must consider that it is of less probative value than first-hand evidence that he hears.
§ Lord James Douglas-Hamilton
The Government came down against that view because they felt that it would lead to the reintroduction of hearsay by another route, would be complicated and would make the reform not worth following through.
As hon. Members have pointed out, the Bill departs from the commission's recommendations about a notice procedure for the admission of hearsay evidence. The commission proposed that a party wishing to rely on hearsay evidence would have to convince the court that it was neither reasonable nor practicable to bring along the maker of the hearsay statement to give evidence. If the court came to the view that the maker of the statement could have been brought to court, it could refuse to admit the hearsay evidence.
As an adjunct to that proposal, the commission's Bill contained a notice procedure, to which my hon. Friend the Member for Lancashire, West (Mr. Hind) has referred. That would have enabled a party to notify his opponent that he intended to rely on hearsay evidence. Unless his opponent served a counter-notice objecting to the hearsay evidence, he would lose his right to object at the proof itself.
A number of those who responded to the consultation on behalf of my noble and learned Friend the Lord Advocate were of the view that, while reform was necessary, the commission's proposal to allow the courts to retain a power to refuse to admit hearsay evidence, together with an associated notice procedure, could have the effect simply of reintroducing the rule against hearsay.
The Government were persuaded by this argument, and the Bill simply abolishes the rule against hearsay by providing in clause 2(1)(a) that evidence cannot be excluded solely on the grounds that it is hearsay. I should emphasise to the House that that leaves untouched any other means whereby evidence might be considered inadmissible. For instance, the court might hold that evidence was irrelevant and could be excluded on that ground, whether or not it was hearsay.
As with corroboration, the court retains its power to attach due weight to the hearsay evidence. Therefore, the Bill seeks to ensure that potentially valuable evidence is not lost to the court, resulting in injustice to any of the 744 parties. The court, however, is still able, and indeed obliged, to consider and evaluate the evidence put before it.
Those hon. Members who followed the debate on the Bill in the other place will have noticed the references ma de by my noble and learned Friend the Lord Advocate to the position of civil juries in questions of hearsay evidence. The Lord President of the Court of Session said that civil juries in the Court of Session might have some difficulties in evaluating hearsay evidence. [Interruption.] Hon. Members are being extremely provocative. I have absorbed every word of the report, which makes it clear that these difficulties might arise.
While my noble and learned Friend appreciated the problem, the small number of civil jury trials in the court—there were only four in 1985, as hon. Members know—did not merit the rejection of what is seen as a valuable and important reform. Rather, my noble and learned Friend took the view that consideration might be given to abolishing civil jury trials in the Court of Session. That has already been done for the sheriff courts by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980. My noble and learned Friend the Lord Advocate has riot of course arrived at any conclusions yet, but he intends to consult interested parties on this important subject.
I should draw to the notice of the House the provisions of clause 2(3) and (4) which were inserted by the Government during consideration of the Bill in the other place. At first sight, these subsections seem merely technical, but they are important additions to the Bill. They refine the existing powers of the Court of Session to make procedural rules for actions in the Court of Session and the sheriff court for the admission of statements, including affidavits and reports instead of oral evidence.
§ Mr. Frank Doran (Aberdeen, South)
Is the Minister aware that the Second Reading debate in the other place, which involved three of the most prominent Scottish Ministers, took only 34 minutes? He has already managed to exceed that, and he has not yet reached clause 3.
§ Lord James Douglas-Hamilton
Our Committee proceedings may be brief, and it is only fair that hon. Members should have a clear picture of an extremely important Scottish legal measure. It is appropriate that matters of supreme importance to the legal system of Scotland, which is one of the finest in the western world, should be debated fully on the Floor of the House.
The existing rules of court provide for the admissibility of statements in certain circumstances. For example, rule of court 152 provides:In any Admiralty or commercial cause the Court m ay accept as evidence affidavits. Where in the opinion of the Court any affidavit produced is insufficient to enable the question at issue to be disposed of, the party lodging the same may be called on to lodge a supplementary affidavit, or, where the circumstances reasonably permit, to provide the relevant facts by the ordinary rules of evidence.In rule of court 168, which deals with undefended actions of divorce and separation and aliment, subsection (4) provides:Proof in all actions shall, unless in any particular action the Court otherwise directs, be by way of evidence submitted in the form of affidavits and such evidence shall not be treated as being insufficient for the purpose of proof by reason only that it is not supported by parole evidence".To that extent, the rules are overtaken by clause 2(1)(b), which provides for the general admissibility of statements. Subsections (3) and (4) therefore amend the existing 745 rule-making powers to remove the power to provide for the admissibility of statemens. Such a power is unnecessary and could also be said to be in conflict with the provisions of the Bill.
However, as well as providing for the admissibility of statements, the powers and rules also serve the secondary purpose of providing that those statements may be capable of being received in evidence without requiring further proof as to authenticity. It appears to be generally accepted in practice that that is the position, but it is not entirely clear whether all statements admitted in this way will be capable of being received without further authentication—in short, to be self-proving. There is some doubt whether the existing powers would be sufficiently wide to enable rules to specify that a document is self-proving in isolation from specifying its admissibility.
Therefore, these subsections restate the rule-making powers in a form designed to deal with the self-proving aspect. In this way, the Bill establishes the proper distinction between statements which are simply admissible under clause 2(1)(b) and those statements to which the court has decided to accord special status as being not only admissible under clause 2 but self-proving in the circumstances prescribed by rules of court.
I have dealt with the main proposals implemented by the Bill and I shall now deal with the third main aspect of the Bill, which is the type of proceedings in which the new evidential rules are to apply. That is governed by clause 9, but I think that it will be for the convenience of the House if I deal with it now.
I have mentioned that the Bill applies only to civil proceedings. It does not deal with the question whether certain types of proceedings can be classed as civil proceedings. For example, proceedings in respect of breach of interdict may be regarded as civil, criminal or quasi-criminal. This classification will continue to be a question for determination by the courts in each particular case.
Clause 9 defines the types of proceedings to which the Bill applies. These include, of course, proceedings in the ordinary civil courts. The Bill also makes it clear that hearings before the sheriff under section 42 of the Social Work (Scotland) Act 1968 are to be regarded as civil proceedings. That relates to the conduct of children's hearings and applications to the sheriff for findings.
Following the most useful discussions in the other place on the Bill's application to civil proceedings the Lord Advocate introduced amendments so that the Bill applies to proceedings before arbitrations, tribunals and inquiries, and to proceedings that are conducted in accordance with rules of procedure agreed between the parties themselves.
Hon. Members will appreciate that a feature of proceedings before tribunals, arbitrations and inquiries is that they are almost invariably regulated by rules that are contained either in statutory form or in an agreement between the parties. Those rules usually make some provision for the rules of evidence that are to apply. It is right that the Bill should make available to such proceedings the benefit of the more relaxed evidential regime that will be in use in the ordinary courts. It is also right that the ability to make special rules for those proceedings should remain.
746 For that reason, in the Bill's application to arbitrations, tribunals, inquiries and proceedings conducted in accordance with a procedure agreed between parties, an exeption is made for instances in which specific provision has been made for the evidential rules that are to apply. I think that that answers the point made by the hon. and learned Member for Fife, North-East. The Bill thus enables opting out of the new rules and accommodates alternative evidential regimes set down by, for example, tribunal rules or agreement between the parties where that is competent.
I have covered the main framework of the Bill and the background to the considerations applied to it. Much of the remainder of the Bill in clauses 3 to 8 deals with matters related to the main proposals on corroboration and hearsay.
Clause 3 deals with prior statements. Under the present law, the credibility of a witness can be attacked by reference to prior inconsistent statements made by him or her on another occasion. Curiously enough, however, the witness's credibility cannot be supported by reference to prior statements that are consistent with his evidence in the witness box. The Bill corrects that anomaly by allowing prior statements to be admissible for both attacking and supporting credibility. However, there is an exception to that broad rule. By virtue of the definition of "statement" in clause 9, a precognition cannot be used to support or attack credibility. A precognition is simply an account prepared by another person, such as a solicitor, of the evidence likely to be available from a witness. Thus, a statement in a precognition is different in nature from a statement made by the witness himself.
Clause 4 ensures that the fact that a person has been present in court during the proceedings does not prevent him from being called as a witness or recalled to give evidence to clarify hearsay evidence admitted under clause 2.
Clause 5 builds on the present law, which allows certain relaxations of the evidential rules on proof of documents. Normally a document requires to be spoken to by a witness before the document and any statement contained in it can be admitted as evidence. That rule is relaxed under both common law and statute in respect of certain business books and records—for example, bankers' books under the Bankers' Books Evidence Act 1879.
As for other types of documents, I am sure that hon. Members who have been involved in court proceedings will be aware of the difficulties sometimes encountered when witnesses have to be brought to court simply to speak to the fact that they were involved in the preparation of documents that are productions in a case. That can at times lead to unnecessary delay and expense. Clause 5 will minimise the difficulty by enabling an appropriately certified document of any business or undertaking and any statement in that document to be proved in court without the need for a witness to speak to it.
Clause 6 provides further assistance for a party wishing to rely on documentary evidence. Under present evidential requirements, and subject to certain relaxations, original documents rather than copies must be produced unless the parties can agree otherwise. That can lead to difficulties in lengthy cases involving original documents that may be required for other purposes. The clause enables a properly authenticated copy document to be admitted and treated for evidential purposes as if it were the original.
747 The problem addressed by clause 7 has not yet arisen in Scotland, but it is right that the opportunity presented by the Bill should be taken to provide a solution. In civil proceedings, it may on occasion be necessary to prove that a particular record simply does not exist. Clause 7 therefore admits the evidence of an officer of a business or undertaking as to the absence of a record without the need to produce all the existing records, as would be required at present.
Clause 8 clarifies and restates the law on actions on family relationships, such as actions for divorce or parentage. In broad terms, the Bill retains the fundamental requirement that in such cases it is necessary for the pursuer to establish the grounds of action before he or she can be successful. That rule applies whether or not the action is defended. In addition, the evidence to establish the grounds of action must come, at least partly, from a source other than a party to the marriage.
In the context of family relationships, I am sure that hon. Members will agree that, as far as possible, the legislative rules should be capable of reflecting the social and legal requirements of the day. For that reason, the clause gives the Lord Advocate power to disapply the requirement that evidence should come from another source. But I should make it clear to hon. Members that Parliament will have an opportunity to discuss any changes of this nature, since the order is required to be made by affirmative resolution.
The remaining clauses are formal, but I have already mentioned the important definition of civil proceedings in clause 9. I should also draw hon. Members' attention to clause 10(2), which provides that changes in the evidential rules will not apply to proceedings in which proof has commenced before the date of operation of the Act—if the Bill is enacted. That avoids the undesirable situation of parties being subjected to a change in the rules of evidence part way through a proof.
I have dealt in some depth with the provisions of the Bill and the background to it. I did so because the Bill had a commendably rapid passage through the other place. In case the Bill has a similarly brief passage through this house, it is desirable that hon. Members should know in detail what is proposed.
This is an important and, some might say, a radical measure of law reform. Although the Bill contains substantial changes in the rules of evidence in civil proceedings, the Government do not envisage a marked change in the way in which cases will be presented. It is true that, if the Bill is enacted, parties will be able to rely on uncorroborated evidence and hearsay evidence. However, parties will, I am sure, continue to seek to put before the court the best evidence available to them. I expect, therefore, that they will continue to lead corroborative evidence where it is available and bring the makers of statements before the courts whenever possible.
In instances where that is not possible, the Bill will ensure that courts will still have before them as much relevant evidence as possible. As a result, neither party will be penalised simply because potentially valuable evidence is excluded on technical grounds. A party will thus be able to proceed with an otherwise good case which under the present evidential regime would be doomed to fail because of an inability to meet technical requirements of corroboration or to produce evidence that was hearsay.
I am glad that the Bill received a generous welcome in all parts of the other place, and I hope that it will find a 748 similar welcome here. It is a thoroughly valuable law reform measure. I look forward to the speech by the hon. Member for Garscadden.
§ Mr. Donald Dewar (Glasgow, Garscadden)
The Scottish Conservative party conference has had a narrow escape. Obviously, the Minister was anxious to get something off his chest. I understand that he was inaugurating Falkirk sheriff court today. I do not know whether that meant that he was filling up the first legal aid application or locking the first cell door. I am certainly in favour of a total moratorium on public expenditure in that area if it has the effect upon the hon. Gentleman that we have just seen.
The Minister gave an extraordinary performance I recognise, of course, that this is a significant law reform measure, but I wonder whether it is a good use of Civil Service resources to type out, for the Minister to read, the entire report by the Scottish Law Commission and to interpolate into it a few broken fragments from the Lord Advocate's speeches in the House of Lords. That does not reflect a great deal of credit upon the Minister.
I should start by declaring an interest. I am still a partner in a Glasgow law firm and to that extent I have an interest in the law of evidence in Scotland and, perhaps in a more direct sense, in legal aid and litigation in Scotland. However, it is a very remote interest.
We support the Bill. It is well on its way through the legislative process, and has encountered surprisingly little controversy. It has gone through the House of Lords, where there were some brief exchanges, Lord Morton of Shuna exchanging some elegant courtesies with the Lord Advocate in very short order. Members of the other House have habits which could be learnt with some advantage by the Government.
There has been little sign of professional concern. I have not been involved in, or the object of, any lobbying, arid there has been no real stir or controversy over the measure. Although the Minister talked about wide consultation, according to the appendix to the Law Commission report there have been only 17 submitted written comments on the consultative memorandum No. 46. I find that a little surprising. It does something fairly fundamental in removing the need for corroboration and admitting hearsay evidence, even if that is confined to the civil code and does not spill over into the criminal law.
I have a long memory. The Minister has referred to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968. I am glad to see my hon. Friend the Member for Paisley, South (Mr. Buchan) in his place, as he was the Minister who took that Bill through the Commons. He and I are among the few who can say that "we woz there", although the hon. Member for Dumfries (Sir H. Monro) also played a part in the proceedings by voting against the removal of corroboration from actions for personal injury. As I said in a brief intervention, that is one of the slightly strange factors. Section 9 of that Act did exactly what this Bill is doing, but in a much more limited sense, because it related to only one or two specific types of categories of case, of which actions for personal injury were by far the most important.
We heard an extremely spirited attack from the Conservative Benches in 1968. Norman Wylie—a popular 749 and respected Member at the time, now Lord Wylie and on the Court of Session Bench—led from the Front Bench.
He said:These are provisions to which as a Scottish lawyer I take the strongest possible exception.To be fair to him, he followed it through, and the Conservatives voted against clause stand part at the Committee stage. A certain Mr. Hector Monro was among those opposed to the reform. Who knows? We may even hear a small personal statement about why he has changed his mind. I presume that he is not leading a similar attack on the Government's policy this evening.
Norman Wylie went on to make it clear that in his view the whole proposition was unsound. The principle of corroboration, he said,provided a safeguard against the acceptance of untrue and unreliable testimony. This Bill proposes to abolish that requirement in a large tract of civil litigation…In my career of fifteen or sixteen years at the Bar I can only think of one case in which I had to advise that there was insufficient evidence to enable an action to be raised, and having regard to the later decisions of Cleisham v. the British Transport Commission I would certainly not have given that advice today."—[Official Report, Scottish Grand Committee, 19 March 1968; c. 24–5.]On that basis he consigned, or tried to consign, the whole reform to the dustbin. It was not just a personal quirk; Wylie took the Conservative party with him. Perhaps I should say that I am pleased that Conservative Members have thought again about the matter in the considerable interval that has elapsed.
I notice from reading the reports that I supported the relaxation of the rule then, and I do so again tonight. It was quite an interesting debate. I was followed—this is a real piece of memorabilia—by Sir Hugh Lucas-Tooth. In those days, there was a different kind of hon. Gentleman on the Conservative Benches. In any event, I want to make it clear that we support the proposal on corroboration.
I have some reservations; in a strange way, I have more than I had in 1968. Then, a narrow exception was being introduced to right what was seen as a specific wrong. The House was unashamedly being a pursuer's man. We were saying that there were people who clearly deserved redress, and we strongly suspected that the court felt that they should receive it, but because of the technicalities of the need to find corroboration—even with all the ingenuity and the relaxation of the law—in some cases it was not possible to give that redress. It was very much in that spirit that we were moving to legislate. Now, of course, we are unashamedly removing altogether the rule about corroboration in civil cases. In a sense, that is a much more serious move, and although I give it my support, I think that it is worth stopping momentarily to consider the arguments.
The bare facts are stated, and the Minister quoted from the Scottish Law Commission report. However, let me quote briefly from paragraph 2.1:The requirement of corroboration has been regarded as a safeguard against the acceptance of unreliable evidence. Our consideration of current law and practice in civil proceedings, however, has now led us to the opinion that a formal requirement of corroboration in such proceedings is not in the overall interests of justice.If that position is to be accepted, that is the end of the matter. I suppose that there is now a consensus which I have joined, but I think that the House should recognise that a considerable change is involved.
750 The argument on hearsay is similar. Perhaps I can do a bit of special pleading. I was never very comfortable with the rather artificial rules and definitions that surround the matter, and the niceties of simple and multiple hearsay as discussed in the report that we have, in effect, before us in legislative form.
I agree that there are arguments for retention. I am not particularly impressed with the jury's difficulty in evaluating hearsay evidence. The Minister mentioned that the Lord Advocate is considering the fate of civil juries. I should have thought that it was not a major issue, although I may be wrong. I see that the hon. and learned Member for Fife, North-East (Mr. Campbell) dissents, but I have considerable sympathy with the survival of a form of procedure that has almost fallen into desuetude. No doubt we can consider that on a future occasion.
I should be interested to hear something about the timetable. Perhaps the Minister will say a word about it when he sums up. He said, in his usual way, that there would be further consultation and that all interested parties would have a chance to have their say. But it is now six months since Lord Cameron of Lochbroom spoke on Second Reading in the House of Lords. I should have thought that, even if he had not reached a decison, he would have some idea of when one would be reached.
The main problem is that hearsay evidence admitted under the new relaxation would not be subject to cross-examination. That again was very fairly rehearsed in paragraph 3.21 of the report. The Commission made it clear that there were problems, as I think it was bound to do:in our view under our system of adversary procedure it can often be an essential tool for extracting the truth.There has been some discussion of the departure from the draft Bill prepared by the Scottish Law Commission, under which notice had to be given if hearsay evidence was to be led. There were certain rights for the other side in the case. The Government have decided against that, probably rightly, although certainly the Lord Advocate did not try to argue the case; he merely stated flatly that it had been decided that it would not be right to go down that road. I noted that the Minister repeated that in exactly the same terms a few minutes ago. I hope that I will not depress him when I say that I do not see any possibility of a cursory Committee stage. He will probably be reassured, as he seemed worried about it. I look forward to a fairly full Committee hearing, and perhaps we can look at the matter with some care then.
A theme of some significance runs through the measures. They look at civil litigation in terms of common sense and the courts looking at the facts, trying to get at the truth and perhaps not standing too nicely upon the intricacies of procedure and the rules of court. The point was well made by our colleague who is now in another place, Lord Ross of Marnock, who said on 19 March 1968:If I may interpolate my own view, it is that, where there is a dispute about facts in a civil matter and the matter is brought before a court of law for an adjudication on the facts, justice can best be served and seen to be served if the court, however difficult this may be in certain cases, is allowed to determine what is the most probable reading of what occurred in the light of all the evidence and circumstances. A requirement of law such as the requirement of corroboration must be artificial and tend to come between the court and the most probable reading. Accordingly I am firmly in favour of the Commission's recommendation".— [Official Report, Scottish Grand Committee, 19 March 1968; c.10–11.]751 That recommendation was ultimately section 9 of the 1968 Act.
One can take that argument too far, because if one applied it in the criminal area there would be considerable difficulties, but as a statement of general approach in the civil area it seems to underline what we are looking at now, and I should he prepared to support it.
We are relaxing the laws of evidence, but it seems that many of the court procedures are still narrow, formal and based on textual criticisms of pleadings, which the ordinary client often fails to understand. I remember being a young solicitor, even in the sheriff court, translating and transferring things from adjustment to procedural rolls, and not knowing what I was doing or why, but clutching a bit of paper for the occasion. I was conscious that it was causing a great deal of delay and no doubt frustration to my clients. We should consider that in the longer term to see whether there is a way of simplifying those procedures as well.
I was interested to note that paragraph 2.9 in the section on corroboration in the Scottish Law Commission's report stated:A further criticism of the present law which has been made to us by some commentators and which we think of considerable practical importance is that the requirement can lead to unnecessary expense, delays and inconvenience.I am not sure that the Law Society agrees with that, but I think that there is some force in it. If we are to take that seriously, we should look at some of our court procedures as well and we might get nearer to what was in the mind of Lord Ross of Marnock in 1968 when he suggested that a more common-sense approach was right.
According to the explanatory and financial memoran-dum, clause I will have no impact on public funds. I believe that there will probably be a small impact. If the reform means anything, presumably some cases will go to court which otherwise would not have done so, and some will proceed which otherwise might have been laid to rest. I should be interested if the Minister referred to the workings of the civil legal aid system now that the Scottish Legal Aid Board is in operation. I have looked at the latest accounts of the Scottish legal aid fund for the year to 31 March 1987, when it was under the control of the Law Society. The accounts are signed by Jock Smith and Ken Pritchard on behalf of the Law Society. The cost of solicitors' and counsels' fees and outlays in civil legal aid in 1986–87 was £14.5 million. I do not know whether there is any idea what the figure will be for 1987–88 or for the coming year—it is too early for that. I should be interested to know what trends are beginning to emerge now that the new scheme is in being.
I know that the Minister has been thinking about this and that there may be an opportunity to debate it later in the House, but I ask him to give an idea of the Government's thinking on the contentious issue of when legal aid comes into effect. As some people in the House will know, the old system was that one lodged the application and if the solicitor was reasonably confident that legal aid would be granted, he would continue to process the work. In due course the legal aid grant came through and the solicitor could charge properly for the work back to the date of lodgment. If the solicitor miscalculated, he would end up with unpaid work, but that was a gamble that most solicitors were prepared to take and it was in everyone's interest.
752 This is a point of real substance. Now, one applies for legal aid to the Scottish Legal Aid Board and is paid for the work that is done from the time when the intimation of grant is received. That may take three, six or perhaps more months and even when legal aid is granted, it is often six weeks before intimation is made. As a result, no solicitor of any prudence will do a hand's turn in the interests of his client until he has the intimation in his hand.
Effectively, the civil action will lie dormant perhaps for three to nine months, depending on the circumstances, with nothing happening at all, much to the frustration of those involved, because of the way in which the new system operates. I do not understand the rationale of that, because ultimately the work will have to be done and will be paid for by the legal aid fund. Under the old system it was done promptly, which was an advantage and in the public interest.
I hope that the Minister will reconsider, and reinstate the old system now. There is no doubt that delay brings the law into disrepute and it seems that he is now determined to build delay into the system. The matter arises, at least tangentially, under the Bill. Perhaps we shall be able to discuss it in Committee, but I invite the Minister to tell us his thinking, which must be in an advanced state by now.
I should like to conclude my speech because I do not want to rival the Minister in any way—thinking about it, I say that absolutely, but I say it particularly in regard to length of speech. I believe that we can have a useful, although not necessarily protracted Committee stage. There will be many points that are worth examining in Committee, one or two of which I have mentioned.
I am particularly interested in the reference to proofs before the sheriff under section 42 of the Social Work (Scotland) Act 1968. My hon. Friend the Member for Aberdeen, South (Mr. Doran) has had a great deal of experience in that. The distinction that is made between grounds of referral under section 32 of the Act—the majority of them—and section 32(2)(g), which depends upon an offence, is logical. However, it raises some interesting queries. I can envisage difficulties when there is a case under one of the grounds of referral which involves, for example, child abuse or sexual abuse, and where the relaxation of the laws of corroboration and hearsay will apply. Therefore, a finding might be made on the balance of probability rather than on proof beyond reasonable doubt, and the consequences could be fairly serious.
The very fact that we are relaxing hearsay opens up the argument, which I shall not rehearse now but which we might want to look at in Committee, on how one deals with the evidence of very young children and proofs within the children's hearing system. As the Minister knows, there has been a lengthy debate about video links, recorded statements and the circumstances in which they can be used. There has been interesting experimentation in the Glasgow sheriff courts and probably in other parts of Scotland. The provision, about section 42 of the 1968 Act, allows us to obtain a report of the Government's thinking, and I hope that we shall be able to do so in Committee.
It is good that it is now easier to prove that a record does not exist, or it will be once the measure is on the statute book. No one mourns the passing of corroboration by false denial. I promised the Minister that we shall not look too closely at the Bankers' Books Evidence Act 1879, which is mentioned fairly freely in the Bill. I am even prepared to accept that section 1 of the Evidence (Foreign, 753 Dominion and Colonial Documents) Act 1933 is not affected, and to live with that disappointment. There are much more important matters than that.
I certainly welcome the Bill as it stands. It is the result of work by the Scottish Law Commission. The Minister paid his tribute and I am glad to echo it. I hope that I do not get into trouble for murmuring a judge, but the speech of Norman Wylie back in 1968 had a very funny passage, in which he invited us to look with great scepticism at the report of the Scottish Law Commission on the basis that there was no member of the Faculty of Advocates among its members. I am glad to say that that has been put right—not that that seems to be a particularly sound approach to legal judgment, but it was a long time ago.
I congratulate the Law Commission, particularly its chairman, Lord Maxwell, who will be retiring shortly. I do not know who his successor will be, but whoever it is I hope that he will carry on the good work in the years ahead. I see several other hon. Members wishing to rise so I conclude with a total irrelevancy—which I shall try to get in quickly before you interrupt me, Mr. Deputy Speaker—which is that, on a cut of the cards in Cumbernauld tonight, Labour took power.
§ Mr. Alick Buchanan-Smith (Kincardine and Deeside)
I shall leave the last remark of the hon. Member for Glasgow, Garscadden (Mr. Dewar), which will be welcomed on the Opposition Benches, although it may not be to one hon. Member there. I congratulate the hon. Gentleman on the modesty of his speech, at least in relation to its length, but modesty is purely a relative quality for this debate. I am delighted to see support on these Benches from hon. Friends with legal knowledge from south of the Border. No doubt they will contribute to our debate and enliven the Committee proceedings, ensuring that we have some good speeches.
As a complete layman on legal matters, I am going where I fear to tread, but at least I am prepared to try a little. I hope that that will be commended in the appropriate quarters and that there are rewards for trying as well as for other things. Obviously, I bow to my hon. Friend the Under-Secretary of State who has experience of Law Commission reports and who has even been so brave as to take them to the length of private Member's Bills.
I have respect for the work of the Scottish Law Commission. What it advocates in its reports and what we seek to embody in legislation is well considered. But, like the hon. Member for Garscadden, I believe that it is important that we laymen should not take what it says for granted. Its views should be tested. The legislation removes the need for corroboration in civil cases, so by implication it facilitates the procedures of the pursuer.
But we must also ask: what of the defendant? I hope that the House is a defender of those who may be affected badly by the legislation and I trust that a proper balance is struck and the defendant is not put in a weaker position as a result. I support a move towards simplification, but we have a right and duty to ensure that that is not at the expense of justice. That is fundamental, and I hope that my hon. Friend will address that point.
As the hon. Member for Garscadden said, trenchant comments were made when these matters were 754 considered earlier in relation to personal industrial injury cases. If my hon. and learned Friend the Member for Perth and Kinross (Mr. Fairbairn) were present, we might indeed have had some trenchant comments and it might have made for a livelier, better informed evening. As a poor substitute for him, I ask my hon. Friend the Under-Secretary of State to put any doubts at rest about the rights of defendants.
The Bill puts a particular onus on the judge or sheriff to maintain justice. He must ensure that any claims are properly substantiated. It is important to ensure that proceedings are not based on scraps of uncorroborated evidence or hearsay.
Does my hon. Friend the Under-Secretary of State anticipate that the legislation will give rise to many claims? The courts are already overburdened and I am sure that when he was in Falkirk today, despite the new facilities there, those responsible for the workings of the courts would have used the opportunity to tell him how overburdened the courts are. While our main objective must be to see that justice is done, equally we do not want the courts to be cluttered with spurious claims that have little chance of success.
It would help us to reach a decision—certainly it would guide me how to vote—if my hon. Friend the Under-Secretary of State could tell us whether the 1968 legislation has been successful in terms of damages for personal injuries. Has it increased the claims, has it given a proper opportunity to genuine claims or has it been merely a stimulant of spurious claims? What are the views of the Law Society and the Faculty of Advocates? Apparently the position of the Faculty of Advocates is rectified in relation to the Law Commission, but it would be helpful for laymen like me to know what the learned view is of those whose job it is to administer the law.
The hon. Member for Garscadden raised the subject of legal aid. If the legislation is to simplify legal procedures, I would expect it to give better access to the law for those whose rights need to be upheld. I am slightly surprised that there are no implications for costs and public expenditure as a result of the Bill. Surely we are trying to facilitate procedures through the courts, so that is likely to lead to more cases and applications having to be assessed. How many new cases does my hon. Friend the Under-Secretary of State expect to arise as a result of the legislation, and will that increase the need for legal aid?
To follow the example set so far in this debate, I shall refer to some specific points on which I seek clarification. Clauses 5 and 6 deal with documents. Since these clauses apparently automatically allow true copies or proofs of statement, what procedures are there to ensure that the original can be challenged, thus ensuring that the copies are properly substantiated and followed through?
Clause 9 is the definitions clause. It states that "hearsay" includes hearsay of whatever degree. What are those degrees of hearsay? It would be helpful to a layman like me to have some explanation of that.
The hon. Member for Garscadden passed quickly over clause 10(3), but I should like to know why we have an Evidence (Colonial Statutes) Act 1907, an Evidence (Foreign, Dominion and Colonial Documents) Act 1933 and an Oaths and Evidence (Overseas Authorities and Countries) Act 1963. These are important matters about which the House should know. I hope that when my hon. Friend the Minister replies to the debate—even if his 755 speech is short in relation to the one that he made earlier—he will find time to deal with clause 10(3). That will also guide me in how I vote at the end of the debate.
There is great strength on the Government Front Bench tonight, with a former Deputy Chief Whip, my hon. Friend the Member for Monmouth (Sir J. Stradling Thomas), having been wheeled in to ensure that the legislation goes through properly. There is obviously great anxiety about the Bill.
Corroboration has been removed from personal injury law and civil evidence law. That leaves only the law of criminal evidence. My hon. Friend the Minister made it clear that the Government do not intend to introduce a similar measure for that area, but there has been a gradual progression from 1968 to 1988, and simple people like me may wonder whether in 2008 there will be a move to apply similar measures to criminal proceedings. It would do a service to the House, and it would give us some insight into my hon. Friend's mind, if he would say how he views an extension in 2008 of the principle that started in 1968.
§ Mr. Menzies Campbell (Fife, North-East)
I, too, declare an interest as a member of the Faculty of Advocates. I share the sense of regret expressed by the right hon. Member for Kincardine and Deeside (Mr. Buchanan-Smith) at the absence from this Scottish occasion of the hon. and learned Member for Perth and Kinross (Mr. Fairbairn). I have it by way of uncorroborated hearsay that had he been present he would not have allowed the Minister quite the favourable hearing that he enjoyed from the House.
The debate turns on corroboration and hearsay. It is interesting that the Bill and the Minister defend a set of circumstances in relation to tribunals which the Bill, if properly directed, should have tried to change. Although corroboration and hearsay will be swept away in a civil action—I shall return to the absence of definition of that in due course—if legislation which provides for arrangements in tribunals contradicts the proposal to abolish corroboration and hearsay, that existing legislation will continue to prevail.
In an intervention I mentioned to the Minister a case that has recently come to my attention in which someone trying to prosecute a complaint of poor dental treatment has discovered that the inquiry set up by the local health board requires corroboration to establish the validity of the complaint.
§ Mr. Campbell
If it is possible in a civil action to sue for £10 million and to be successful on uncorroborated evidence, it is curious that a similar relaxation of the rules of evidence is not available in cases where someone tries to establish poor or improper treatment.
The starting point for the relaxation of corroboration was section 9 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968. But following its enactment, the decisions of the Court of Session have been by no means consistent. I cite for the information of the House, but not for that of the Minister, who will be more than familiar with them, the cases of Maclaren v. Caldwells Paper Mill Company and Morrison v. Kelly. Although the Court of Session did not blunt the effect of the legislation 756 in those cases, it interpreted the law in such a way that it did not fulfil the considerable expectations that many people in the House had for it.
For example, it appears to be accepted that the existence of the exception—currently the law under section 9—is no excuse if corroborative evidence is available and has not been led. What evidence do the Government have that section 9 has fulfilled the function for which it was passed into law? What evidence do they have that that section has alleviated many of the hardships that were in the minds of those who promoted that provision vigorously?
Although I cannot speak on behalf of the Faculty of Advocates and give the right hon. Member for Kincardine and Deeside the informed collective view that he sought, as someone who has practised in the Court of Session for the 20 years since section 9 became law, I can say that it has had little effect on the conduct of cases and, perhaps more significantly, has had little or no effect on the settlement of cases. That may be due more to the interpretation placed on section 9 by the court than to the terms of the legislation. My researches have revealed that no case that has come from Scotland to the Judicial Committee in another place would remove some of the apparent inconsistencies that those two decisions have thrown up.
If corroboration is no longer required, the evaluation and assessment of the evidence of a single witness will require special care and attention. That is no more than one would expect when a judge is sitting alone. But when a judge sits with a jury in civil cases, which is still common in the Court of Session and which is still a pursuer's right, unless special cause can be shown to the contrary, the requirement for careful and analytical direction of the jury will be paramount.
I was taken aback by the Minister's somewhat light-hearted suggestion that the civil jury trial in Scotland may not last much longer. In my professional experience, as someone who has appeared on behalf of pursuers and of defendants, in some cases juries are especially appropriate in determining the issues that are in dispute. I am thinking particularly of what, south of the Tweed, is called the running-down case, but which in Scotland is more frequently referred to as the case arising out of a road traffic accident.
I hope that the Government will not embark lightly on proposals to remove civil jury trials from the procedure available to the Court of Session. The mere fact that the opportunity to have a civil jury trial is infrequently invoked does not mean that it should necessarily be removed from a litigant's advisers if, in their judgment, that is the best way for the case to proceed.
A number of difficult matters arise with regard to corroboration. I should be grateful if the Minister could deal with one matter. I have observed that much is being heaped on his head for the closing speech. No doubt, if there are matters with which he cannot deal, he will, with his usual courtesy, write to those whom he has been unable to satisfy. What concerns me is that, if in an action of reduction of a document, such as a will or a disposition of heritable property, the evidence of a single witness will be sufficient, if believed, to bring that action to a successful conclusion, how does the Minister square that with the fact that the execution of a document—the coming into effect of the document—by law in Scotland requires that the signature of the person executing it be witnessed by two witnesses? One would have the paradoxical 757 circumstance in which it would take two people to vouch that I have signed a disposition of heritable property, but only I myself, if believed—I hope that that would be the case—would be sufficient to cause that document to be regarded as no longer being of any legal effect.
§ Mr. Norman Buchan (Paisley, South)
I follow the hon. and learned Gentleman's argument, but we are dealing with two different circumstances. When a will is being made, the parties and witnesses can be present. When proving it on a later occasion, perhaps only one person may be present, or perhaps none, except for hearsay evidence of some sort. It may not be possible to have the same requirement at the later stage of the execution of a will.
§ Mr. Campbell
I hesitate to embark on a detailed discussion with the hon. Gentleman about the requirements of the execution of wills and dispositions, but it is worthy of note that the requirement for two witnesses is to establish the bona fide of the signature of the person executing the document. That is corroboration because two witnesses, not one, are required. It is noticeable that, when documents are issued by English finance houses or their equivalent, only one witness is sought. In Scotland, the rule remains that two witnesses are required. That is a question to which the Minister might address his mind, and in so doing he may be able to satisfy not only me but the hon. Member for Paisley, South (Mr. Buchan).
I wish to take more serious issue with the Minister about the absence of a definition of civil proceedings in the Bill. He said that interdict was a civil or, perhaps more correctly, a quasi-criminal process. It is more correctly defined as being a civil process that may have quasi-criminal consequences. An action for interdict, which is the Scottish equivalent of an injunction, is commenced in a civil court. The point at which the consequences become quasi-criminal is if a person is guilty of a breach of an order of the court, which is treated as contempt of court and can be visited with punishments such as a fine or, if thought appropriate, imprisonment.
The difficulty that the Bill necessarily creates for practitioners is that, if there is no definition of "any civil proceedings", and if the Minister accepts that interdict may be civil or criminal on his own analysis, a practitioner who is asked to raise an initial writ in the sheriff court, or a summons in the Court of Session, will not be aware of what volume of evidence he is required to have before embarking on proceedings. If corroboration is required, it would be improper for a solicitor to raise an initial writ in the sheriff court or for an advocate to draft a summons for the Court of Session without corroborated evidence—evidence from two sources.
I suspect that the absence of a definition may give rise to considerable difficulty in circumstances in which urgency is often a paramount consideration. I hope, therefore, that the Government will give further consideration to whether it would not be appropriate, for the purposes of the Bill, to give a definition of what they regard as "any civil proceedings."
Like the hon. Member for Glasgow, Garscadden (Mr. Dewar), I welcome unequivocally the ending of the rule that evidence might be corroborated by false denial. That rule applied only in actions of affiliation and aliment, in 758 which, to echo the archaic language used in these matters sometimes, there was a peniuria testium—a shortage of evidence arising out of the circumstances in which affiliation and the concomitant aliment might become necessary. It was a curious anomaly that something could be established because someone was found to be telling lies about it. The relaxation of the rule of corroboration, which the Bill necessarily embraces, removes something from our law that sat very uneasily in it.
I am much less sanguine about the value of allowing hearsay evidence to be admissible than about the relaxation of the rule of corroboration. I can do no better than quote from the late Lord Normand in the case Teper v. King, where he said:The rule against the admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony would be lost.One is entitled to ask what experience the Government have and what representations have been made to them that the proposition to which I have referred from the observations of Lord Normand is one that should necessarily be departed from and is justified by the terms of the Bill.
As to clause 3, I welcome the fact that statements made previously may be available to support or attack credibility. Up until now, by virtue of the terms of section 3 of the Evidence (Scotland) Act 1852, such statements were available only as a means of attacking credibility, not supporting it. I wonder whether the Minister will say something about the fact that a precognition is excluded, by clause 9, as being a means by which credibility might be supported or attacked. Is the Minister satisfied that the exclusion of a precognition is justified for that purpose?
I am surprised by clause 8(3), which talks about evidence consisting of the evidence of a person other than the person seeking the remedy. If I read that correctly, it means that a person might be in a position to obtain one of the remedies referred to in clause 8(2) without giving evidence himself. That seems a rather curious feature of the language of that part of the Bill. I should have thought that there was a strong argument, having regard to the remedies and types of action referred to in clause 8(2), that there should be evidence from a source other than the person seeking the remedy. I find it difficult to understand how the alternative evidence might be treated as the only evidence available in the case.
The Minister has said that there is no intention, especially with regard to hearsay and corroboration, that these principles should be extended from the civil law to the criminal law. Even from this short debate he must by now appreciate that the Government will find no welcome for any attempt to do that. I am by no means entirely cynical, but one can imagine reverberations at some future Conservative party conference when the law and order lobby is in full cry and the Lord Advocate has his not inconsiderable back to the wall. It is not difficult to imagine it being suggested that one reason why too many people escape justice is the somewhat archaic rules about corroboration and hearsay, with the argument that, as it has already been abolished in civil cases, it should be abolished in criminal cases, too. The Minister should mark the considerable opposition to any such suggestion, which he will find to be as vehement among Conservative Back Benchers as it is in the Opposition.
759 In this context, I can do no better than remind the Minister of the Thomson committee's third report on criminal procedure. Paragraph 1.09 puts the matter succinctly but in a form that every lawyer practising in the criminal court should know as well as any other piece of information available. It states:The greatest safeguard against a miscarriage of justice is—and should continue to be—the rule of law that the Crown must prove its case beyond reasonable doubt on corroborated evidence.I for one will allow no departure from that fundamental part of our criminal law. My justification for that statement is drawn from the fact that I once led the Minister in a murder trial and since then have appeared in the High Court of Justiciary both as Crown counsel and as defence counsel. That experience leaves me in no doubt, whatever may be the case in civil matters, of the fundamental importance in criminal matters of corroboration and the exclusion of hearsay. Any diminution of that is a price that cannot be paid. It is a part of our procedure which cannot be given up.
In that spirit, subject to the comments and observations that I have made, I welcome the Bill and trust that it will have the same speedy and effective progress through this House as it apparently enjoyed in another place.
§ Sir Hector Monro (Dumfries)
The skill and success of the hon. and learned Member for Fife, North-East (Mr. Campbell) as an international athlete is surpassed only by his knowledge of the law. I am therefore reluctant to follow him, as I certainly could not on the track, down the route that he has taken today.
The hon. and learned Gentleman raised a number of interesting points and I hope that my hon. Friend the Minister will refer to them when he winds up the debate. It would save a great deal of trouble if he would elucidate the point whether there should be one or two witnesses for such legal documents as transfers of stocks and shares in the future. As a trustee of various trusts, I find it a frightful nuisance when solicitors send transfer documents to be signed and one has to find two witnesses, neither of whom may be one's wife. That is often quite difficult at short notice. If that is to go by the board, let the Minister say so today and, if not, why not. I take the point that if two witnesses are required in drawing up a will and all that that means in terms of the law, it should not be too easily altered or cancelled with just one witness to the signature. My hon. Friend the Minister may not have considered that detail in drafting the Bill, but the repercussions are important and it would be interesting to hear his views.
The hon. and learned Member for Fife, North-East dealt similarly with clause 9, which contains four subsections defining civil proceedings. I hazard a guess that those provisions will occupy the Standing Committee for a good deal longer than many other provisions in the Bill. The clause deals with important items such as arbitration. We know of the importance of agricultural arbitration. It also deals with tribunals. Most of us have experience of constituents appearing before tribunals and there is often some conflict of evidence. If, as my hon. Friend the Minister seemed to indicate, each tribunal is to draw up its own system of evidence, it will certainly take the Committee some time to reach a decision on that.
I hope that my hon. Friend the Minister will also deal with the subject of legal aid. In the past year, many of us 760 will have had experiences with legal aid which have been unfortunate, to say the least. Not only are there delays in decisions, but there is the important question of the stage at which the solicitor taking on a case can be assured that legal aid will be awarded for the work undertaken. At present, a substantial period may elapse while a solicitor is working on the case when it is far from clear whether legal aid will ultimately be available. I know that there is a running inquiry. I know that inquiries are currently taking place and that my hon. Friend the Minister is deeply involved in these issues, but I hope that he will be able to say something on the subject today.
I am tempted to point out with regard to the cutting of cards in Cumbernauld that, although things have worked out well for the Opposition there—the hon. Member for Glasgow, Garscadden (Mr. Dewar) may have invoked the assistance of Paul Daniels—things may not work out so well later in the week when an equally important cut has to take place. I am also sad that my hon. and learned Friend the Member for Perth and Kinross (Mr. Fairbairn) cannot be with us today as I am sure that he would have had some interesting and perhaps hilarious comments to make on the Bill, given his lukewarm approach to corroboration and hearsay evidence as altered by the Bill.
I note with interest that the Scottish Law Commission report is number 100. The commission has been a tremendous boon to Scotland. It has been looked after by many distinguished lawyers and we should express our gratitude to them, not just for the present report but for the 99 that presumably went before it, assuming that they are indeed numbered in sequence. We should thus give praise to Lord Maxwell and his team for their recommendations. The present report may be shorter than most but, as my hon. Friend the Minister has said, it was produced after the most detailed consultation.
The hon. Member for Garscadden was ragging me for having supported the then Opposition view of the legislation before the House in 1968. As a dutiful Whip, it was my duty to ensure that everyone supported the then Opposition. Twenty years later, after much consultation and further experience, if my hon. Friend the Minister now takes a different view I am sure that it is the result of experience in the courts and I am thus quite happy that there should be a change of attitude.
The Government have brought the Law Commission's reports into use year by year. I am glad that the Bill, which was based on the report dated February 1986, had its Second Reading in another place as soon as November 1987. That shows commendable speed on the part of the Scottish Office in getting on with legislation and implementing the recommendations in the Law Commission's reports.
Like the hon. and learned Member for Fife, North-East, as soon as I read that the Bill dealt with the corroboration of evidence, I sat up and thought, "Heavens! This is a major change in Scots law. Will civil or criminal evidence be affected? Have the Government taken leave of their senses if it is criminal evidence?" I am glad that it subsequently emerged that the Bill dealt only with civil cases. I would have the gravest reservations if the Bill affected criminal cases too. I hope that my hon. Friend the Under-Secretary of State will confirm that there is nothing in the pipeline that might change that aspect of Scots law, which has been extremely important for centuries. Scots law has frequently been copied in England 761 and Wales to the benefit of those countries. However, I would certainly not want any part of our system of evidence in criminal cases changed in Scotland.
I also raised an eyebrow when I heard that we were to change the rules of hearsay evidence. My experience of the law is very limited, and I think back with horror to the time when, as a young officer, I was sent to deal with a summary of evidence for a court martial, never quite understanding what hearsay evidence was. I am only glad to think that no one was successfully convicted as a result of any of my recommendations. The matter was incomprehensible to me then, as it is now. I hope that we shall not make major changes in the rules of hearsay evidence, other than what is proposed in the Bill.
I listened carefully to my hon. Friend the Under-Secretary—[Interruption.] It was worth listening to. I am sure that he will clear up some points of information when he winds up. Perhaps he will tell us whether the present rules, while desirable, are not likely to be sensible in every case. I suppose that a layman might say that, under the Bill, rules for the corroboration of evidence will be more flexible than the present rigid rules. Sometimes that inflexibility prevents cases from coming to court, but I hope that the Bill will not have the reverse effect. I hope that we shall not have many more cases coming to court in which there is a competition between witnesses to tell the most outrageous story because they do not need to have corroboration. My one fear is that there may be too much of a swing from difficulty in obtaining correct evidence to ease of providing evidence in civil cases. I hope that my hon. Friend the Under-Secretary will allay our fears on that.
Judging by the Law Commission's report, the key issue seems to be the credibility of witnesses and how they stand up to cross-examination rather than having two or three witnesses trying to tell the same story. The Minister gave a number of helpful examples to illustrate the point about the credibility of witnesses. Presumably, most of the proceedings will be heading towards major damages cases.
I return to the more serious question of the criminal law and reiterate that I strongly agree that we must not change that in Scotland. One paragraph of the Second Reading debate, which took place on 12 November 1987 caught my eye. The Lord Advocate said:The commission concluded that the existing law offended against its main principles by being unduly complex and excluding potentially valuable evidence. The current rule is that hearsay evidence is generally inadmissible but is subject to certain exceptions. I agree entirely with the commission's broad conclusion."—[Official Report, House of Lords, 12 November 1987; Vol. 489, c. 1541.]The commission was right to bring forward the report on corroboration and hearsay and my hon. Friend the Under-Secretary and my right hon. and learned Friend the Secretary of State were right to introduce the Bill with the support of the Lord Advocate.
One also reads in the Second Reading debate in the other place that in 1985 there were only four jury trials of civil cases. That may not be of major importance. I hope that we shall address the issue of tribunals, of which we have all had experience. It is important that we get the provisions right—including clause 9, with respect to the definition.
762 We return to the most important point, which is that the reliability of evidence is all-important. That sways me to support the Bill, and I commend it to the House.
§ Mr. Norman Buchan (Paisley, South)
I am pleased to have the chance of listening to the rustle of dead leaves, because I bear some responsibility for the Bill. I do not recall that it was simple to get my proposal past my Secretary of State at the time. I was a very junior and fresh Minister and those who knew Willie Ross will know some of the difficulties that we had. However, I am sure that I was right and I am sure that the Law Commission was right. I cannot remember which came first—its evidence or my cases.
It is important to know what gave rise to the report. For me, it was two cases. In those days, my constituency covered Port Glasgow. A man who was removing the scaffolding from a ship in the shipyard was found dead, with the scaffolding broken. There was no corroboration of the incident. I fought as hard as I could and went to various lawyers and various places, but I could not win the case because it required corroboration so that everyone knew what had happened. The second case, which was cited by the Scottish Law Commission, involved a woman cleaner on a train. Shunting occurred and she was killed. Everyone knew the cause.
We recognised that the point went wider. Indeed, I was reproved for saying so. It is important that we should welcome the developments, as we have covered much ground. In the debate on the Law Reform (Miscellaneous Provisions) (Scotland) Bill 1968, I said:I wonder whether we should not go even further than we have considered and whether there is a case for exploring the whole case for corroboration in order to ensure that no purely technical requirements prevent justice from being done. This is probably a point at issue. It is not a point we shall explore here because we have taken our respective lines in terms of this Bill".I was interrupted later by my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar)—then the hon. Member for Aberdeen, South—who said:Is the hon. Gentleman not being a trifle unfair here? There is the factor of the review being carried out by the Law Commission, and we do not want to prejudice that."— [Official Report, Scottish Standing Committee, 9 April 1968; c. 112.]I said, no, indeed. I stress that point because it is well to remember that the opposition came from not only our side—the Government—in a minor way, but from the Conservatives and, I regret, the Liberals, in the shape of the right hon. Member for Tweeddale, Ettrick and Lauderdale (Mr. Steel).
The legislation was also opposed by the hon. Member for Moray (Mrs. Ewing) speaking for the Scottish National party, not because it was in line with English law—she said that she could accept that—but because the Bar Association of Glasgow, of which I think she was the secretary at one time, regarded it as unnecessary. I am sorry that the Scottish courts have not applied this practice. We were never under the illusion that it was done to subvert the role of the jury. On the contrary, it provided that no more than the evidence that could be prevented by a technicality should be able to be brought forward and its reliability tested.
A number of other strange things happened. My hon. Friend the Member for Garscadden said that English Tories were present. I regret that the 1968 legislation was 763 miscellaneous. I congratulate the Government—it is infinitely better to get a law passed in totality than as part of a miscellaneous Bill. The English Tory was Sir Hugh Lucas-Tooth, who dealt with the illegitimacy aspect. He said:I would remind hon. Members that that Committee"—the committee on the law of succession in relation to illegitimate persons—always referred to illegitimate persons by the good old-fashioned English word 'bastards'. I do not know if there is any special Scottish equivalent. I propose to use that word.I said:In Scotland we used to call it a love child. I think that rather better.Sir Hugh Lucas-Tooth gave the astonishing reply:There are certain implications in the Scottish form which I would not always accept."—[Official Report, Scottish Grand Committee, 19 March 1968; c. 35.]That must have been the first time in history that a Tory found that an illegitimate child could not have been born out of love. We have seen it borne out by the Government's actions over the last nine years. We must rejoice that there has been movement in the legislation under this Government.
There was a fear that the practice of accepting uncorroborated evidence could become a habit. Surely, if anything, it has gone the other way. The procedure has not been used sufficiently and judges have directed against it where it has been used. The emphasis given by the bench has been to remind the jury that it is uncorroborated evidence. I am afraid that, to a jury, that is not always taken as being uncorroborated in a technical sense; it has suggested a whiff of non-existent support. I do not agree with the hon. Member for Dumfries (Sir H. Monro) that this system could start to replace the normal judicial process.
It is with great pleasure, as well as the rustle of dead leaves, that I welcome the Bill. There is another point which is worth making because so many lawyers are present. I said:it has been said that it is a folk tradition that reasonable men would demand corroboration. I may not be an authority on the law, but I think that I can claim to be an authority on folk tradition, one essential of which is that natural justice has supremacy over the rules of law. The law is there to serve justice and not to be the master of justice."—[Official Report, Scottish Grand Committee, 30 January 1968, c. 55.]If technicalities prevent injustices, they must be removed. If they must he removed, they must rest on the kernel of good justice—the decision of the bench and the jury. The Bill does no more than say that, and I welcome it.
§ 9.4 pm
§ Mr. Bill Walker (Tayside, North)
I do not claim to have any special knowledge of legal matters. I am sorry that my hon. and learned Friend the Member for Perth and Kinross (Mr. Fairbairn) is not here. He and I have discussed the Bill. He has expressed grave concern about some aspects of it. I shall not attempt to emulate what he would say. First, I do not have his flowery flow of language, and, secondly, I do not have his experience of Scottish courts. If, in future, corroboration is not required, before we make what must be a major change in Scots law, we must be satisfied that the measure will be an improvement on existing practice.
I recognise that my hon. Friend the Under-Secretary of State for Scotland has examined the matter in detail and at length. He will understand that, like my right hon. and 764 hon. Friends who have already spoken, I want an assurance that this measure will not be the thin end of the wedge and that, at some future date, we shall not see changes in the criminal law in Scotland. As we know, corroboration is an important part of criminal proceedings. The measure is designed to make sure that innocent people cannot be convicted without corroboration.
I remind my hon. Friend that it was judged to be useful and helpful in Scottish criminal cases to introduce a system whereby, when an individual is charged with an offence, the procurator fiscal may send him a warning letter.
My hon. Friend will be aware of my concern about a case that arose in Perth. The person was not charged in Perth—in fact, he was charged in Dundee—but the matter affected some individuals in Perth. In particular, my hon. Friend will be aware that I was concerned that certain Conservative councillors were interviewed by the Tayside police on the basis of some confidential information—that is, the name of the individual who had received the warning letter from the procurator fiscal which, by arrangement, had been sent to his lawyer. That individual complained, and the Tayside police interviewed Conservative councillors and other prominent people in Perth. It is an on-going matter.
It is not my intention this evening to go into the details, but, at some future date, I may be forced to do so if events proceed much further. My colleagues in Perth—city, regional and district councillors—again find themselves being subjected to questioning by Tayside police. For the benefit of the House, I add that all such individuals a re innocent, in that they were just interviewed by the police to try to find out where the leak had occurred. As hon. Members know a great deal about leaks, they will understand that there was concern about the leak of that confidential letter that had been dispatched to a prominent individual in Perth. That individual denies being the individual concerned. There is much at issue.
I raise the matter because I hope that, with a lack of corroboration in civil proceedings, we shall not again run into difficulties or produce more problems than we set out to solve. As I mentioned in regard to sending out letters from the procurator fiscal, it was intended to simplify the legal procedure and reduce the number of individuals being taken to court—at least, that is what I understand was the thinking behind it.
My hon. Friend will be aware also of my concern about how we appoint individuals to crime prevention panels and how the chief constable sets about his task. Perhaps a new code of conduct—
§ Madam Deputy Speaker (Miss Betty Boothroyd)
A Second Reading debate is quite wide. The hon. Gentleman is reasonably within order. He is an experienced parliamentarian, and he knows what he is doing.
§ Mr. Walker
I am astonished at that intervention, especially coming from a lawyer. He more than anyone should know that one must deal with corroboration carefully. I deliberately did not go into all the details of the matter because I did not wish to use my parliamentary 765 privilege to resolve a matter that may be resolved more amicably elsewhere. I am treading carefuly, but it is a case where the issue of corroboration is important. On Second Reading of an important piece of fundamental Scottish legislation I believe that we should examine carefully evidence that shows that corroboration or lack of it could present us with problems.
The House will appreciate that I require some reassurances. I am unhappy about the aspect of civil proceedings that would change the corroboration of evidence. I am a layman, however, and I am prepared to be convinced by more experienced lawyers—there is an abundance of them around us this evening. I would be happy to take their advice. I merely put on record my concern so that the Minister is aware of it.
§ Mr. Frank Doran (Aberdeen, South)
I give a cautious welcome to the Bill and I wish to concentrate on the issues that add a wee bit more than caution to my welcome.
First, I am concerned about civil juries. The hon. and learned Member for Fife, North-East (Mr. Campbell) was emphatic about that. When the Lord Advocate introduced the Bill on Second Reading in another place he made it clear that he was reviewing the role of the civil jury in Court of Session cases. I should be interested to know whether any progress has been made in that consideration.
My main interest is the Bill's impact on the children's hearing system, to which my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) alluded. I believe that we are making some significant progress. The Minister knows that, at present, the procedure used for most aspects of the children's hearing system in the courts is civil procedure. There has been some abuse in certain sections of that procedure. The removal of the corroboration rule will give tremendous assistance in establishing child abuse and child sexual abuse cases.
I believe that such abuse has existed for a long time at the high levels that are presently being discovered. We now have a more effective way in which to uncover the problem, and more cases are coming to light. The removal of the corroboration rule will certainly assist the reporters to the children's panel and the Scottish courts in discovering more cases and determining them. That will help children in need. I welcome that, and that welcome is shared by the Reporters Association and the various child care associations that are involved in such cases.
I can think of a number of occasions when, as a solicitor in private practice, I have had to discuss with families the sheer frustration that they have felt at the fact that cases have not been dealt with before the courts because the reporter has been unable to prove his case.
Many cases of child abuse and sexual abuse are discovered outside the home, at school or nursery school. Presently, evidence from a teacher, a nursery nurse or a social worker would be inadmissible. The Bill will provide a considerable improvement and the work of the social work departments and children's hearing system will be much more effective because courts will be able to deal with such cases.
There are three questions which I wish to leave with the Minister. I have already mentioned juries, and I am anxious to hear from him about that. In relation to the 766 children's hearing system, some doubt has been expressed in the Court of Session about the use of civil procedure in connection with child abuse and sexual abuse cases.
At the moment, the Court of Session is reluctant to use a civil basis when it has to determine whether sexual abuse has occurred. Of course, by making that determination, it is saying that a crime has occurred, and the court would be more comfortable using a criminal standard of proof. Section 9 removes the court's option in that respect and in all cases, except the allegation of an offence having been committed by the child, the standard of proof should be a civil standard of proof. I am anxious to receive the Minister's confirmation of that point.
Another point that has already been made, but which I have no difficulty in reinforcing, involves legal aid. As the Minister knows, two tests must be satisfied before legal aid is granted: the means test and the test of probarilis causa, which is that there is a good case to be fought. If we dilute the standard of proof necessary in a court, that must have an effect on the consideration of legal aid applications. It may be that until a case is before the court and the sheriff or the judge sees the evidence and assesses it, it will be difficult to assess exactly what the probarilis causa is.
I am interested to know what instructions, if any, the Minister will give the Scottish Legal Aid Board to guide the board on how to consider those cases. If we have a lower standard of proof, which effectively we shall have if we remove the corroboration and hearsay rules, I hope that there will be a slackening of the restrictions on legal aid applications.
While on legal aid—I declare a vested interest as a solicitor—the points made by my hon. Friend the Member for Garscadden on the considerable inefficiencies and delays that the introduction of the Scottish Legal Aid Board brought to the legal system in Scotland need to be addressed. Like my hon. Friend, I am anxious to hear what the Minister has to say on those matters.
§ Mr. Andrew Welsh (Angus, East)
I will be brief on a civil law Bill which so far has received a broad welcome. I certainly support the two guiding principles singled out by the Scottish Law Commission, first thatthe law should be simplified to the greatest degree consistent with the proper functioning of the law of evidenceand secondly that,as a general rule all evidence should be admissible unless there is good reason for it to be treated as inadmissible.Those twin principles of simplification and wider access to evidence in civil law cases are welcomed.
I note also that the Law Commission wishes to proceed with a measure of caution in dealing with the problems built into the present position, while bringing about necessary changes. The solution that the Law Commission has adopted seems to learn from existing answers in the United States, Australia, England and Wales, and should bring sensible improvements into Scottish civil law. However, criminal law is a different matter. I support the opposition expressed by other hon. Members to any extension of those measures into the criminal law. Such a move would be opposed tooth and nail and I hope that the Minister will state that he has no wish to extend these changes into criminal law.
It is interesting to note that the flexibility, informality and ability to introduce change of tribunals is now in some way influencing the more formalised court structure. That 767 might be the start of a useful trend of modernising and reforming courts in a way which would make them much more accessible to the people.
I hope that the Government will take on board the points raised by various hon. Members about legal aid. Difficulties in gaining access to legal aid and delays in processing applications are causing problems. I hope that the Minister will address himself to these problems.
I pay tribute to the work of the Scottish Law Commission and its consultative document. Perhaps the degree of cross-party unanimity is a reflection of its detailed work. I hope that the proposed changes will avoid the present pitfalls of unnecessary expense, delays and inconvenience, while introducing a relaxation of the present rules in the interests of justice. While sharing some of the reservations that have already been expressed, I should like to endorse the favourable comments that have been made so far, which allow the Bill all-party support.
§ Mr. James Arbuthnot (Wanstead and Woodford)
It is a pleasure for me to be able to renew my interest in Scottish affairs. I only hope that it will not be necessary in this debate for me to examine my Scottish family tree and to compare it with those of Opposition Members, as happened in the Committee debate on the Housing (Scotland) Bill.
I should like to compare Scottish law with the law in England and Wales, because, as so often happens, Scotland is leading the way. When are the changes that are introduced by this Bill likely to be considered for England? That is a heartfelt plea from a mere English barrister, albeit with Scottish blood, who came into contact with the law of hearsay evidence in quite a large way at the beginning of this decade.
I was involved for several years in a case in the chancery division of the High Court in England, called Baden Delvaux v. Societe Generale. It lasted 108 days in the court of first instance and a mere three weeks in the Court of Appeal, and it founded my pension fund. The main question in the case was whether a bank which had trust funds in its accounts should he held responsible for a fraudulent misappropriation of those funds by a signatory to the account. It depended on the extent of the bank's knowledge of the fraud and on whether there had actually been a fraud in the first place. It was my job in that case to prove that there had been a fraud.
The fraud had arisen in the Investors Overseas Services empire because of the involvement of a gang of fraudsters led by Mr. Robert Vesco. Mr. Vesco was, and probably still is, a brilliant man who, sadly, turned his brilliance to crime and as a result is now living in terror of being found in the jurisdiction of the United States of America. I understand that his current occupation is drug-running in the Caribbean. In the 1970s, he was involved in defrauding the investors in the IOS empire of their money. He did it by moving money around between companies, setting up a company here, changing a share structure there, and moving bearer shares between Switzerland and Costa Rica, Panama and the Bahamas, and between countries that I had hardly heard of, such as the Netherlands Antilles and Curacao, which I had thought was a drink.
The essence of the fraud was that the more complicated it was, the more likely it was to succeed. And complicated it was, and succeed it did, at least in part. Mr. Vesco ended 768 up extremely rich—with his own private plane, with jacuzzi on board—with the then Government of the Bahamas close to, if not actually in, his pocket, and with extra perks that not many of us would even dream about.
It was my job to prove the movements of the money, in circumstances where the movements had been deliberately concealed. The job involved searching for depositions and statements—all hearsay statements—made in different jurisdictions all over the world. When I say that the IOS fraud has spawned well over 200 cases in different jurisdictions, it will be appreciated that the job was huge.
Under the Civil Evidence Act 1968, it was necessary to prove it all by serving notices. I drafted four such notices. which took several months. I was not working unduly slowly. It must be remembered that there were several hundred documents in each notice. The documents that we were relying on were documents of the highest repute, such as depositions taken on oath by the Securities and Exchange Commission in the United States of America and judgments of courts in the United States of America and Canada. However, for each, the requirements of the Civil Evidence Act 1968 had to be followed.
The notices were extremely complicated, as must be expected, because so were the documents to which they referred. The documents in court, which were a tiny fraction of the documents that had to be considered in the case, were well over 15,000 pages long and it took many weeks simply to read them to the court. In the event, although we had been through this hugely laborious process, the existence of the fraud and the truth of the documents were not even seriously challenged. The process cost one of the litigants hundreds of thousands of pounds. I have to doubt whether it was worth while. It would have been far better if in the English courts there had been a simple rule such as that which will be introduced by the Bill.
I welcome the Bill not only for what it does but for what it does not do. It represents a real step forward in the development of the law of evidence, because the unnecessary retention of complex rules can lead to the law being seen as existing only for its own purposes rather than serving the best interests of those who have a genuine grievance to bring before the courts.
As a lawyer, I believe that it is my job to discourage people from going to law, and it is our job as Members of Parliament to make sure that, if people have to go to law, that law is as simple as possible. The main beneficiary of the law should be not the lawyer but the litigant. My right hon. Friend the Member for Kincardine and Deeside (Mr. Buchanan-Smith) said that simplification should not be at the expense of justice. In a sense, he is right, but justice is a relative term. If, in order to achieve justice, litigants are forced to go through a hugely expensive and cumbersome process which causes delay and frightens them off, one should question whether they are in pursuit of genuine justice, because absolute perfection in a legal system can, paradoxically, be most unjust.
I agree entirely with the Scottish Law Commission's adherence to the guiding principle of a law of evidence which is as simple as possible but which renders a maximum amount of evidence admissible. The Bill moves the existing law towards that aim, which is most desirable, but at the same time it recognises the good sense of legal advisers and judges preventing the courts from becoming a free-for-all, with cases proceeding on uncorroborated and hearsay evidence.
769 My hon. Friend the Member for Lancashire, West (Mr. Hind) said that, if there were no opportunity to test evidence because there had been no notice, for example under the Civil Evidence Act, then surely that evidence would be of little probative value. Yes, he is right, but that is something which the judge ought to be able to take into account. Like the absence of corroboration, it should simply be a factor, not something that leads to total exclusion of the evidence.
The hon. and learned Member for Fife, North-East (Mr. Campbell) rightly said that hearsay evidence is not the best evidence, but are we to say that not only is it not the best, but neither is it ever good enough? That should be up to the judge. As my noble and learned Friend the Lord Advocate said:Although parties will be able to rely upon uncorroborated evidence and also hearsay evidence, it seems to me that prudent legal advisers will continue to seek to establish their cases beyond peradventure. On that basis I would expect that they will continue to lead corroborative evidence, where it is available, and to bring the makers of statements before the courts whenever possible in order that the weightiest evidence can be adduced for proof of their case."—[Official Report, House of Lords, 12 November 1987; Vol. 489, c. 1544.]I said that I welcome the Bill for what it does not do as well as for what it does, and what I have just said is a good reason for not extending the Bill to criminal cases, because a jury might have a lot more difficulty over the distinction of the weight to be attributed to evidence rather than to its admissibility—much more difficulty than a judge would have.
I welcome the Bill as a move in the right direction. It is the right direction for evidence in civil cases but above all, it is the right direction for the law as a whole. Our laws should be simple and easy to understand, not only by a lawyer but by the litigant. In that respect the Bill is a model for other legislation.
§ Mr. Barry Field (Isle of Wight)
As my hon. Friend the Member for Dumfries (Sir H. Monro) said, the Scottish Law Commission's report was its 100th report. It received 17 representations and made 32 recommendations. I welcome the Bill. It is a worthwhile reform of an important area of the law that can touch the lives of everyone in Scotland.
Clause 8 deals with family representation and relationships. These matters are clearly of substantial importance to those involved. The clause covers divorce, legitimacy and declarator or nullity of marriage. The Bill's removal of the requirement for corroboration and the rule against hearsay will apply to these actions. I am sure that that is right.
The Scottish Law Commission said that at one time the standard of proof in certain divorce actions was proof beyond reasonable doubt. That has now been changed to the normal civil standard of proof on a balance of probability. Actions of this type are therefore on the same basis as other civil proceedings, and there is no reason to distinguish these cases from other civil cases in terms of corroboration and hearsay. However, the Bill quite properly retains the rule that a decree cannot be granted until the grounds of action have been established by evidence.
770 Hon. Members who have studied the Scottish Law Commission's report will know that this rule stems from the fact that questions about the status of the parties concerned are involved and that this has effect beyond the parties to the litigation. The rule means that, even if a case is undefended, the pursuer has to establish his case to the satisfaction of the court. Because of the importance of these cases and their wide effect, I am sure that hon. Members will agree that the Bill takes the correct line by restating in modern form the rule that is contained in an Act of 1830.
This also has the benefit of putting it beyond doubt that the rule also applies to actions in the sheriff court. This is important since hon. Members will know that the sheriff courts are able to hear divorce actions. This is a good example of justice being made available at least cost to those concerned. People can now have a divorce action heard in a local court rather than having to go to Edinburgh.
There is another important part of this Bill. Those who have taken the trouble to read the Scottish Law Commission's report will be surprised to see in paragraph 3.67 that business books are presumed at common law to be accurate if they have been regularly checked. They will frequently contain a large element of hearsay.
The Bill is a welcome development of the law of evidence. It is clearly important that the law of evidence should keep pace with the needs of the day. This is especially apparent in the way that the Bill deals with computer evidence. We are all aware of the extremely fast pace of computer technology. Therefore, it seems odd that parties who wish to rely on that sort of evidence must at present go through a complex set of rules formulated in 1968. Perhaps that was not quite in the infancy of computer technology, but it was certainly in its early days.
Hon. Members who have looked at the lengthy sections 13 to 15 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 will see the Bill as a necessary improvement. This is a welcome measure that removes rigid evidential rules that are considered to be against the interests of justice. If a more satisfactory method of resolving disputes results, that must be of benefit to those who under the present arrangements can see no way of bringing a genuine grievance before the courts.
I can do no better than refer the House to column 1544 of their noble Lordships' deliberations, in which the Lord Advocate concluded:I do not see this Bill as being a charter for lazy lawyers, if any such being exists. What this Bill will do is ensure that the courts will have before them as much relevant evidence as possible. As a result neither party to an action will suffer injustice simply because potentially valuable evidence is excluded thus rendering an otherwise good case either incapable of prosecution or doomed to failure."—[Official Report, House of Lords, 12 November 1987; Vol. 489, c. 1544.]For those reasons, I have no hesitation in recommending the Bill to the House. It is a satisfactory development of the law of evidence to met the needs of a modern society, and I welcome it.
§ Mr. John Home Robertson (East Lothian)
I have no doubt that the good people of the Isle of Wight can rest easy in their beds tonight, in the knowledge that their Member of Parliament has given such detailed consideration to a specifically Scottish piece of legislation. I am sure 771 that it will come as quite a surprise to a number of people in the towns of Cowes, Ryde and Shanklin to know that this is a matter of such deep interest to him.
§ Mr. Barry Field
Surely the hon. Gentleman has it in his heart to acknowledge the charity, excellence and diversity of the interests of hon. Members who represent island constituencies, whether it be in the north of Scotland or the south of England.
§ Mr. Home Robertson
The great difference is that we do not find many Conservatives representing islands or anywhere else in Scotland. I suspect that the hon. Gentleman was put up by the Government Whips to make his contribution. It may come as an alarming surprise to him to learn that, having taken part in a debate on the Floor of the House, he is likely to be appointed to the Standing Committee.
I join other hon. Members—including the hon. Member for Isle of Wight (Mr. Field)—in supporting the objectives of the Bill. In the Minister's opening remarks I was distressed to hear him make the vulgar suggestion that my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) might build a yellow brick wall in what we all know is a red sandstone area, but I was particularly relieved to hear him say that the Government are always ready to learn from experience.
Having followed the proceedings of the Conservative party conference in Perth last weekend, I must say that I saw precious little evidence that the Government were learning anything from experience, but of course we welcome any signs of interest in evidence nowadays on the part of Scottish Ministers. I am afraid that what we heard from the Conservative party conference seemed to be a minority party denying any evidence that had come to it through the electoral process, or indeed from anything else in Scotland.
I was particularly intrigued to read clause 3 of the Bill, which states:a statement … shall he admissible as evidence in so far as it tends to reflect favourably or unfavourably on that person's credibility.In Scotland, we pay particular attention to the credibility of one particular citizen of Edinburgh, namely the right hon. and learned Member for Edinburgh, Pentlands (Mr. Rifkind). If we compare the statements that he made in 1978 with those that he makes in 1988 on questions such as the devolution of power and the decentralisation of government in the United Kingdom and in Scotland, we can only conclude that he is not a reliable or credible witness in any circumstances.
I am grateful to all the lawyers on both sides of the House who have taken part in the debate for the clarity of their contributions. I hope that they are not charging their efforts to the legal aid fund or to anyone else. It seems, however, that there is clear general support for the changes proposed in the Bill on the part of both the advocates and the solicitors represented in the House. Indeed, the only comment by the Law Society of Scotland that has been drawn to my attention has been a caution against any extension of the principles of the Bill into criminal proceedings in Scotland. That point has been made by a number of hon. Members, particularly the hon. and learned Member for Fife, North-East (Mr. Campbell). It would be a very alarming development if the Bill were seen in any way as a precedent to be pursued into criminal law.
772 My qualification to take part in the debate is limited, to say the least, except that the farming industry has at least its fair share of hearsay, which one gets from time to time following harvest, and there is a great deal of uncorroborated evidence when accounts come to be submitted to the Inland Revenue.
The nearest that I ever got to civil proceedings was after an interesting event that you may have noticed, Mr. Speaker, which was reported in certain newspapers on 9 March this year. Some newspapers, including one that only passes for a newspaper in Scotland, printed clearly maliciously defamatory statements about myself, concerning my conduct in the House. It was entirely on the uncorroborated hearsay evidence provided by no less a person than the hon. Member for Tayside, North (Mr. Walker). Evidently hearsay is admissible in some areas. I suspect that there might be more interest in civil proceedings in Scotland when we deal with all the litigation that is likely to flow from the poll tax legislation, which will be coming shortly.
Comments have been made about the apparent breach in the Bill of two long-standing principles of Scots law, which bar hearsay and uncorroborated evidence. We all recognise the frustration that the parties in civil cases are likely to feel, when they may be thwarted on pure technicalities in a court of law. I am sure that we are all familiar with the—I hope—apocryphal story about an exasperated sheriff who was supposed to reject a defence of alibi with the memorable comment, "If ye hadna' been there ye widna' be here." That point has been made from time to time.
However, I accept that it should be possible for a court to reach a conclusion on the basis of an overwhelming case that includes elements of hearsay or uncorroborated evidence. I trust—I hope that the Minister will confirm that it is the Government's intention at any rate—that that should be the exception rather than the rule. I presume that a court may be obliged only to admit hearsay or uncorroborated evidence, but not necessarily to accept such evidence. I am sure that hon. Members on both sides of the House will want to keep an eye on that. We want the Minister to make it clear that it is not the Government's intention to apply similar principles to criminal law.
My hon. Friend the Member for Garscadden and the right hon. Member for Kincardine and Deeside (Mr. Buchanan-Smith) referred to the operation of the legal aid scheme at present and the fact that retrospective claims are being disallowed when it should be possible to allow them. There is no question but that the new rules are delaying justice and in some cases interfering with the course of justice. Therefore, I hope that the Minister will take this opportunity to say that there is a prospect of a review of that part of the legal aid regulations.
Judging by the debate, we shall have an interesting Committee stage. We look forward to hearing from the hon. Members for Wanstead and Woodford (Mr. Arbuthnot) and for Isle of Wight. We have heard from the hon. Member for Wanstead and Woodford before and we know that he takes a deep interest in Scottish affairs. Whether he takes as much interest in the affairs of Wanstead and Woodford is not so clear. The one absentee from the debate has been, sadly, the hon. and learned Member for Perth and Kinross (Mr. Fairbairn). If only it were in order or possible for the Committee proceedings to be adjourned from this building to Fordell castle, we might have even more enlightened debates in those surroundings.
§ Lord James Douglas-Hamilton
By leave of the House, I am glad to respond to the debate. It was extremely good and there was a high standard of speeches. It was nice to hear the hon. Member for Paisley, South (Mr. Buchan) confirm the merits of the path that we are treading because he piloted through the Bill with a similar provision 20 years ago. He mentioned the human cases involving his constituents. The evidence that he gave the House was very much that that provision has been in the interests of justice. I believe that to be the case.
I should like to answer as many questions as I can, but first I shall deal quickly with legal aid. We had a debate on a statutory instrument in Committee and further improvements are being prepared. A further statutory instrument will be introduced and it will be thoroughly debated in due course. We have kept in touch with the Law Society on that.
The hon. and learned Member for Fife, North-East (Mr. Campbell), who spoke well, asked about dental tribunals. He was correct that certain tribunals are allowed to regulate their procedures. That would include the retention of corroboration or hearsay as appropriate. Whether they retain their strict rules would be a matter for those responsible for those proceedings.
I shall go through the hon. and learned Gentleman's questions with great care before the Committee, but perhaps I should deal now with one that relates to the retention of documents relating to a will. The Scottish Law Commission is considering that matter. Whether sole evidence on the retention of documents is sufficient is a matter for the court to decide on the basis of whether it is satisfied by the evidence. The cases mentioned in relation to section 9 were from its early days and since then its application has relaxed. The cases of Weir v. UCS Ltd. and Thomson v. Tough Ropes Ltd. are interesting in that area.
I was asked about precognitions which would attack credibility. The reason why a precognition is excluded is because it is a summary of evidence likely to be available from a witness. It is different in nature from a statement uttered by a witness. On family relationships and actions and whether evidence is needed from someone other than a party to the marriage, the present system exists to guard against the risk of collusion between the two parties. The evidence can be wholly or partially from a third party. [Interruption.] The hon. and learned Member for Fife, North-East has missed some of the compliments that I paid him. I vividly remember the case when I was his junior counsel and, despite our immense dedication and thoroughness, our united efforts were to no avail.
The hon. Member for Glasgow, Garscadden (Mr. Dewar) also asked about section 9. There has been a change in judicial attitudes which is wholly to the good. Page 3 of the Law Commission report gives a lengthy explanation by Lord Stott of his attitude in declaring against Maclaren v. Caldwells Paper Mill Company. He explains that there should be a general remedy, and states that there is an injustice arising from a rule whereby a court convinced that an injured man has given a truthful account of his accident, is nevertheless bound to reject it from the lack of corroboration.
The hon. Members for Aberdeen, South (Mr. Doran) and for Garscadden asked about civil juries. Civil jury 774 trials were abolished in sheriff courts in 1980. The Government want to have the view of interested parties, and the Lord Advocate will carry out a consultation. I cannot be more specific about the time scale. It has been said that there was only a small number of responses to the Scottish Law Commission. That may be so, but one must also take into account that others who were consulted were content with the broad proposals. Corroboration as a safeguard will remain and it is for the courts to rely on the best evidence.
My right hon. Friend the Member for Kincardine and Deeside (Mr. Buchanan-Smith) raised several relevant points. The Bill applies equally to pursuer and defendant. It is up to the pursuer to prove his case, as it is at present.
My hon. Friend the Member for Dumfries (Sir H. Monro)—
§ Mr. Brian Wilson (Cunninghame, North)
Everyone in the Chamber is anxious to hear the Minister's response to the many relevant points made by the right hon. Member for Kincardine and Deeside (Mr. Buchanan-Smith).
§ Lord James Douglas-Hamilton
I agree with the hon. Gentleman, and I shall endeavour to answer all the important questions that my right hon. Friend asked. One related to the rectification of the Faculty of Advocates and the Scottish Law Commission. My right hon. Friend will be pleased to read in the report that there is no need for rectification. The faculty was in favour of the commission's broad proposals, with the exception of the hearsay notice procedure.
My hon. Friend the Member for Dumfries, in a very good speech, commended the Bill. The best evidence available should always be given due weight by the court. My hon. Friend asked about witness to documents. Clause 5 would enable a business document to be relied upon without further authentication, but if the document was challenged the court could direct that its origin and authenticity be established by evidence. Therefore, someone might have to provide that he had signed a document.
My hon. Friend the Member for Tayside, North (Mr. Walker) asked whether the provision in respect of civil juries was the thin end of the wedge in relation to criminal proceedings. I repeat that the Scottish Law Commission will be considering the matter, but on a completely separate basis.
The hon. Member for Aberdeen, South made an interesting comment on child abuse cases. I believe that the Bill meets his point.
The hon. Member for Angus, East (Mr. Welsh) welcomed the Bill, and I noted especially what he said about legal aid.
My hon. Friend the Member for Wanstead and Woodford (Mr. Arbuthnot) mentioned the need for simplicity and said that the maximum amount of evidence should be admissible. He asked about the different procedures on evidence in England and Scotland. That is a matter for the Lord Chancellor. Reform of the procedures has been mentioned in the current civil justice review which has been published. I am sure that the Lord Chancellor will be interested in what my hon. Friend said.
I agreed entirely with the theme taken by my hon. Friend the Member for Isle of Wight (Mr. Field): what really matter are the interests of justice.
775 Many points have been made in this extremely useful debate. They will be studied closely before the Committee stage of the Bill. The Bill must achieve an evidential regime which, as far as possible, does not contain technical barriers to the placing before the courts of evidence that will serve the best interests of justice. The Bill meets the principles of simplicity and general admissibility. It has been welcomed because it tries to remove artificial barriers to an otherwise honest and credible case that should at least have the wisdom of the judiciary applied to it.
Several hon. Members asked about our experience. In tribunals, actions for damages for personal injuries and undefended divorce actions, the relaxation of evidential rules has benefited all concerned.
The hon. Member for Garscadden extolled the merits of the abolition of corroboration. In the past, the main difference of opinion arose because of the attitudes that the respective parties adopted 20 years ago. I am glad that we have come some way since then and that the Scottish Law Commission's qualities in assessing the evidence have been well recognised.
Sheriff Macphail and his research party said of the absence of rules against hearsay in tribunals:The divergence in this respect between the courts on the one hand and arbitration, tribunals and inquiries on the other has come to appear more and more noticeable and difficult to justify.We can take comfort from past examples in that regard.
My right hon. Friend the Member for Kincardine and Deeside asked about the Law Society of Scotland and the Faculty of Advocates. Those bodies submitted substantial comments. The Law Society of Scotland raised a number of issues with my noble and learned Friend the Lord Advocate following the introduction of the Bill in another place. I am pleased to say that the Law Society of Scotland has written a letter that states:The Committee asked me to thank you for explaining the position and to let you know that as far as the Committee was concerned the matter would not be taken any further.That shows that it was satisfied with this measure.
I was asked about the effect of the Bill on legal aid. I said earlier that the existing strict rules of corroboration and hearsay can have unacceptable consequences for the preparation of cases and time being taken up in court. The hon. Member for Angus, East mentioned the inconvenience and expense of the rules. Parties will not have to corroborate every point of their case. Nor will they have to bring witnesses—sometimes at disproportionate cost—to speak to facts that are not in dispute.
776 My right hon. Friend the Member for Kincardine and Deeside asked whether there would be a flood of cases, thus creating difficulties for legal aid. I am able to dispel that fear, as the Scottish Legal Aid Board has been consulted and does not think that the Bill will create any difficulties. My right hon. Friend will not expect me to say whether a particular case will qualify for legal aid, because that will be a matter for the Scottish Legal Aid Board.
We want to ensure that in all cases the best evidence available is brought forward. In most cases, corroboration will be relied on so that the courts have the best evidence. So far as possible, the courts will seek to call the witnesses who have made statements. That does not seem to represent a major change to what happens at present. It is unlikely to create difficulties with legal aid.
As to the proposed notice procedure regarding hearsay evidence, the Association of Sheriffs Principal suggested that the procedure was unduly complicated. The Scottish Law Commission's main recommendation removed hearsay restrictions and allied the notice procedure to the powers of the court to exclude hearsay evidence. That had the effect of bringing back the rule against hearsay evidence.
The Scottish Law Commission accepted that the content of a Bill is a matter for the Government. There have been thorough discussions with the Scottish Law Commission, and it appreciated the reason for the departure, in some respects, from its original proposals. I am glad to be able to reassure my right hon. Friend the Member for Kincardine and Deeside that for documents to be admitted as proof of statements contained in them, copy documents will have to be submitted in place of them.
My right hon. Friend asked about multiple hearsay. The witness giving hearsay evidence in court may recount a statement that is itself hearsay, but what will always weigh most heavily with the court is the best evidence. I fully appreciate the concern expressed by hon. Members of the extension of the Bill into criminal legal aid matters.
I believe that the Bill will enhance the ability of the Scottish legal system to provide an efficient and speedy service meeting the ends of justice.
Question put and agreed to.
Bill accordingly read a Second time, and committed to a Standing Committee pursuant to Standing Order No. 61 (Committal of Bills).