HL Deb 09 December 1971 vol 326 cc942-64

5.40 p.m.

THE LORD CHANCELLOR (LORD HAILS' IAM OF ST. MARYLEBONE)

My Lords, I rise to move the Second Reading of this Bill. This is a Home Office Bill, but it has been thought appropriate that the task of explaining its provisions to this House should fall to me, partly because it is, I suppose, in its essence a matter of law reform. I find some hesitation in putting the terms of this Bill before the House because it is both lengthy and somewhat complex, and is difficult to explain. It may take some length of time to explain it, if I approach my task conscientiously. The Bill provides a means whereby dependants (wives, mothers or children) in this country may obtain maintenance from a person over-seas whose duty it is to maintain them, and likewise whereby dependants overseas may obtain maintenance from someone in this country. With the increasingly free movement of people in the world, whether seeking work or a new home, the problem of ensuring the support of any dependants left behind is one which Parliament cannot ignore. The State can relieve the hardship of those who are destitute and who are without other means of support. But that is no reason why a husband or parent, by leaving the country should be able to shrug off his responsibilities whether to his family or any illegitimate child he may have left behind. This Bill seeks at the same time to relieve the financial hardship which can be suffered by abandoned families and to enforce the financial obligations and responsibilities of family life. As such. I hope it will be uncontroversial and hope that it will receive a general welcome.

The machinery embodied, at least by Part I of the Bill, is by no means entirely new, though the existing legislative provisions, so far as we suggest they should be preserved, are repeated in the text. The Maintenance Orders (Facilities for Enforcement) Act, 1920 has been used for the last fifty years for the purpose of enforcing maintenance orders throughout the Commonwealth. It has worked reasonably well, as is shown by the fact that between four and five hundred orders a year pass in and out of England, Wales and Northern Ireland for enforcement. But, it only covers part of the field. To begin with it does not apply to Scotland. Secondly, it does not provide for the enforcement overseas of affiliation orders. Thirdly, it cannot be extended to countries outside the Commonwealth. These limitations seriously reduce the overall scope of the present Act, because they mean that many dependants in the United Kingdom are completely without remedy if the person who supports them leaves this country. Wives and families in Scotland, mothers of illegitimate children throughout the country, and wives and families where the husband or father has gone to a country outside the Commonwealth, are liable to be thrown back upon their own resources or upon those of the State when the person who should maintain them goes overseas. This must also apply in reverse when dependants are left overseas by men who come to live or work here, and, for this reason we have, for some years now, been under pressure to modernise the 1920 Act, not only from our partners in the Commonwealth but also, and increasingly, from our neighbours in the Republic of Ire-land and the continental countries.

The purpose of the Bill is to remedy all the limitations of the 1920 Act which I have set forth. It will enable us to meet our obligations on a basis of reciprocity both within the Commonwealth and on a broader front. I should like to deal with each of the facets which I have outlined, and I am afraid that I have to explain why they are so complicated. First, Scotland. As I have said, the existing Act does not apply to Scotland. The result is that a woman in Scotland whose husband deserts her and goes abroad has no means either of enforcing a decree she may have obtained from the sheriff court before his departure, or instituting proceedings against him in Scotland once he has gone. Conversely, there is no reciprocal procedure by which a maintenance order granted in a Commonwealth court can be enforced in Scotland.

The exclusion of Scotland from the scope of the 1920 Act has been a matter of controversy. It was commented upon when it was passing through Parliament; and the Royal Commission on Marriage and Divorce recommended in 1956 that provision should be made to facilitate the reciprocal enforcement of maintenance orders between Scotland and other Commonwealth countries. A similar recommendation was made by the Law Reform Committee for Scotland in 1958. Why has it not been done before? The answer is that the stumbling block has always been the absence in Scotland of any machinery corresponding to the collecting officer system in the magistrates' courts in England and Wales. for enforcing orders, whether for maintenance or for the recovery of other forms of debt, which have been granted by the courts. Under Scots law, the responsibility for enforcing a court order rests with the person who has possession of it. The adequacy of the present arrangements in Scotland for enforcing court orders is at present under review by the Scottish Law Commission; but the Government thought it right in the meanwhile to bring Scotland within the system outlined in this Bill. The defect in the Scottish machinery is one of the reasons why in relation to the many Scottish provisions the Bill may seem rather more complicated than it otherwise would be.

The Bill will for the first time give the sheriff courts in Scotland jurisdiction in maintenance proceedings against persons domiciled and ordinarily resident outside the United Kingdom. This will allow a woman in Scotland to raise an action in the sheriff court against a person residing in a reciprocating country. If a provisional maintenance order is granted by the sheriff, it will be sent to the appropriate court in the reciprocating country for confirmation and enforcement. Similarly, a woman living in a reciprocating country who has obtained an order in that country against someone living in Scotland will be able to have that order registered in the appropriate sheriff court. The order may then be enforced as if it had been made by that court in the first place. The responsibility for enforcing it will, in the case of Scotland, still rest with the woman concerned but, if she requires the services of a solicitor for this purpose, she will of course be eligible for legal aid. The woman residing in a reciprocating country will thus be placed in exactly the same position as a Scotswoman living within the jurisdiction of the Scottish courts. The extension of these facilities for Scotland will afford a measure of protection to women in Scotland which has been sadly lacking for many years; and I am sure the House will welcome the fact that these facilities are now at last to be provided on a United Kingdom basis.

I come now to the enforcement of affiliation orders which of course relate to payments in respect of illegitimate children. These were expressly excluded from the operation of the 1920 Act, because it was then considered that the determination of paternity was a matter of such difficulty and had such serious consequences that it could only be done by a court before which both the mother and the putative father appeared. In these cases, where they are countries apart, this could not happen. But, even if we accept this—which the Bill does not do—it is not a reason for excluding affiliation orders which have been made before the putative father left this country —that is, absolute orders made when the father has had the opportunity to appear before the court which makes the order.

Some Commonwealth countries have already amended their legislation to make absolute affiliation orders enforceable and in this Bill we propose to follow their example. We are, however, proposing to go farther still and to enable courts to make provisional affiliation orders—that is, orders made in this country upon the basis of the mother's evidence which will have no effect until they have been confirmed by a court overseas which has had the opportunity to hear the alleged father's evidence.

I do not underestimate the difficulty of determining paternity when the issue is disputed; and ideally of course one will agree that this is best determined by a single court hearing both sides. However, experience shows that in a high proportion of cases either the putative father admits his paternity, in which case of course there is no issue, or the mother's evidence points overwhelmingly to his paternity. Furthermore, where paternity is genuinely disputed, the issues do not really seem more difficult to determine than some which arise in matrimonial cases (for instance, where there has been a disputed allegation of adultery), and these have been successfully dealt with by the courts under the existing Act for something like fifty years. In the end it is a matter for the court to weigh the issue upon the evidence and the court has full powers under the Bill to call for further evidence from overseas. Arguments that injustice may be done to innocent men do not on the whole seem very convincing, since the confirming court will have the man before it and it is likely to place greater weight upon the evidence of the witness that it hears. It may be rather that orders will not be made which might have been made if both parties had been before the same court. But at least the mothers of illegitimate children will now he given the chance to prove their case. if the possibility of making affiliation orders under the provisional procedure is excluded, all mothers who were unable to get an order before the putative father left the country would be deprived of any remedy. We think it would be wrong to deprive them in this way.

I must add that the extension of this Bill to affiliation orders, whether provisional or absolute, made in the United Kingdom will require the agreement of reciprocating countries and the making of arrangements for the reciprocal enforcement of their affiliation orders. At present the laws of only a few Commonwealth countries allow for the enforcement of provisional affiliation orders, but we hope that more countries will follow this initiative, and then they will have the opportunity to do so under the provisions of this Bill.

I now come to foreign countries, which again present rather different and peculiar complications. Part II of the Bill deals with reciprocal enforcement of maintenance obligations with countries outside the Commonwealth. The 1920 Act, the existing Act, could be applied only to Commonwealth countries. It was passed as a result of discussions at the Imperial Conference of 1911, and the need for a Commonwealth Act remains as strong now as it was then. But many people also move between the United Kingdom and Europe or between the United Kingdom and the United States and there is consequently also a need for machinery for reciprocal enforcement of orders with these countries. We may expect the movement between this country and foreign lands to increase rather than diminish.

Part I of the Bill will allow countries outside the Commonwealth as well as Commonwealth countries to be designated. But this is not enough. Part I, which follows the Act of 1920, which I have tried to explain, is based on the assumption that reciprocating countries have broadly similar maintenance law and the same kind of reciprocal enforcement. That is because under Part I a court in one country has to be able to confirm a maintenance order made provisionally by a court in another, and therefore has to have a procedural law which will enable it to do so, and it must be able to understand and apply the law of the overseas court. But I need hardly say that such a situation does not apply to a great many foreign countries. The problem therefore is, as regards these, to devise machinery for reciprocal enforcement which will not involve courts in interpreting a foreign law which is totally unfamiliar to them. At the same time, it is desirable to avoid having to negotiate detailed agreements on a bilateral basis with every country with whom we might think it desirable to make arrangements for reciprocal enforcement.

Therefore, we have had to choose a different machinery in the case of those foreign countries from that which the 1920 Act provides, and the machinery which we have chosen is the 1956 United Nations' Convention on the Recovery Abroad of Maintenance. This is designed to facilitate the transmission and settlement of maintenance claims between the countries which are parties to the Convention. It operates on the principle that the law of the country in which the respondent happens to be—that is to say, the law of the enforcing country—shall apply. Where under the United Nations' Convention an applicant makes a claim in one country against a respondent in another, the courts in the claimant's country do not have to adjudicate upon the claim. Instead, the claim is sent to the respondent's country through official channels and is dealt with in accordance with the law of the respon dent's country. A maintenance order may be made or the maintenance recovered through administrative channels according to the procedure in that country. The countries have only to apply the law of their own country. Nearly forty countries are parties to the United Nations' Convention, and the Bill will enable the United Kingdom in due course to become a party to the United Nations' Convention. It is relevant for me to point out in this connection that all the major European countries are parties to the United Nations' Convention. Now alas ! there is still a third complication and a third possibility—

LORD AVEBURY

My Lords, before the noble and learned Lord continues, can he say, with particular reference to Ireland, whether Part II or Part I of the Bill will apply, bearing in mind that probably the largest number of putative fathers against whom orders will be made, of any foreign country in Great Britain, come from the Republic?

THE LORD CHANCELLOR

My Lords, I think, without notice, Part I, because Irish law is almost wholly compatible with our own and their system of enforcement I think is broadly similar. If I turn out to be wrong about that I will write to the noble Lord.

That brings me to Clause 40 and Part III, which deals, alas ! with a still further complication. There are countries, and there are parts of countries, where there is a federal Constitution, and these countries may be, and in some cases are, unable or unwilling either to take part in what I may call the 1920 procedure, Part I, or to adhere to the United Nations' Convention, and may nevertheless be able to participate in bilateral arrangements. One obvious example is the United States, who have not adhered to the Convention, partly because the enforcement of maintenance is a State responsibility and not a Federal responsibility, and neither an American State nor the Federal Government of the United States could become a party to the Convention on this matter. It would clearly be most desirable if the United Kingdom could produce a legislative framework which will enable maintenance to be recovered from people who have gone to the United States; otherwise to some extent the Bill will be deprived of its full value. There were informal discussions during the meeting of the American Bar Association in London this summer, and these suggested that it might be possible to make arrangements —I use the word "arrangements", which is not a technical word—with individual States for the reciprocal enforcement of maintenance on the basis of the provisions of the Bill. But those will need to be slightly modified in matters of detail to produce an effective machinery. There may be other countries besides the United States in which special bilateral arrangements would be necessary or desirable. The powers for this are in Clause 40 of the Bill. Any adaptations or modifications to the general principles which would be made under such bilateral arrangements would be in matters of detail—for example, in relation to different terminology or channels of communication between countries. Accordingly, the provision for recovering maintenance from a person in a country with which an agreement under Clause 40 has been made would not necessarily be significantly different from the procedure in Part I or Part II.

Now, my Lords, I ought if I were a thoroughly conscientious Minister to go through the Parts and set out in some length the very complicated procedures for the three Parts. But I hope the House will bear with me if I just summarise what I have said, so as to get it clear in people's minds. The purpose of the Bill is to get rid of the defects in the 1920 Act—the limitations upon the 1920 Act; in other words, to apply the provisions to Scotland; to apply the provisions to affiliation orders, and also to apply the provisions to countries which the Act of 1920 cannot be made to apply to at the moment. It is the latter part which leads to the greater part of the complication, and what we have done is, by Part I, to extend the 1920 Act to countries where it can apply; by Part II, where effectively it cannot, to utilise the machinery of the United Nations' Convention—and Part II will enable us to become a party—and to utilise the quite different provisions available under that. Part III enables bilateral arrangements to be arrived at, either because they are thought more advantageous in a particular case or because Part I and Part II do not apply. My Lords, I am afraid that I have taken up a great deal of the time of the House but it is really an absurdly complicated matter and I do not think I could have done it more shortly. I beg to move.

Moved, That the Bill he now read 2ª. —(The Lord Chancellor.)

6.1 p.m.

LORD DIAMOND

My Lords, I do not know why the noble and learned Lord, the Lord Chancellor, felt in an unusually modest frame of mind when introducing this Bill. If I may put it in one sentence, he has made me understand it, and therefore everyone else will have understood it even more easily. I am certainly no lawyer, as everybody knows, and I found his explanation easy to follow and completely adequate. It is of considerable pleasure to me to be able to take part in discussion of a Bill where I can be in such harmony and agreement with the noble and learned Lord, the Lord Chancellor. Alas!, it is not always my good fortune to be in that happy state. It is also a pleasure for me to be able to welcome, certainly so far as this side of the House is concerned, a Bill which, to use a time-worn phrase, is, if anything, overdue. It is a matter which has been under consideration obviously since 1920 and in respect of part of which there has been a United Nations Convention which I see was agreed to in New York between June and December of 1956. One knows from the speeches that have been made from time to time during the course of the debates on the Queen's Speech that this is a Bill which has been in the minds of Governments for a considerable period, and I dare say we should have had this kind of Bill, whichever Government had been in power. Therefore I welcome it so far as this side of the House is concerned. The noble and learned Lord, the Lord Chancellor, is, certainly right in saying that there is a good deal of "meat" in the Bill and a good deal of evidence of a determination to overcome obvious difficulties of the judicial systems of different countries in trying to put right a major grievance, and to that extent we congratulate the noble and learned Lord and the present Government and all those who have taken part in drafting the Bill.

There has obviously been a considerable body of misery, for aught I know real misery, suffered by a large number of people because of the difficulty of following through court orders from one country to another, and the fact that a Bill of some 40-odd clauses has bean needed to overcome it indicates the kind of problems to which those responsible for this matter have turned their minds, and I think we ought to be duly grateful for it. It is an indication that we are all realising that the world is getting smaller every day and that we have to accommodate ourselves to that situation. This Bill is a good example of the way in which that has been done. In general terms, my Lords, we can offer a welcome to a Bill which would obviously improve the lot of many people and which, on the face of it, so far as we on this side of the House are concerned, does not contain any major provision which is in any way controversial. The noble and learned Lord, the Lord Chancellor, will be happy to learn that.

There are, however, one or two points which I did not completely follow on quickly reading the Bill and on listening to the noble and learned Lord's speech. One matter is that of dealing with arrears. To take a preliminary point in regard to it, I imagine that there must be some limitation to the arrears which can be collected. In a case where arrears have accumulated over a long period of years and it has not been possible to collect them for reasons that have been explained to us, and those arrears become payable and as a result of this Bill arc capable of being collected, I imagine that there will be some kind of discretion resting with somebody or other so that they will be dealt with understandingly. I am not saying more than that. Obviously the arrears should not have accumulated, but, their having accumulated over a very long period, there is presumably some method of dealing with them.

I am more concerned with the other aspect of that matter as evidenced in Clause 20, which deals with the Scottish position. We are grateful for the explanation of the unusual circumstances in Scotland and the difficulties which stem from not having the same kind of collection machinery, but if one looks closely at Clause 20 one reads that: on any application for leave to enforce the payment of any such arrears, the sheriff may refuse leave … as he thinks appropriate or may remit the payment of such arrears or of any part thereof. In short, the sheriff will apparently have power to say that no arrears need be paid or that part of the arrears only shall be paid, or that they shall be payable only subject to certain conditions and restrictions. That seems to be a very wide discretion. There is nothing in this particular clause which indicates the way in which the sheriff would reach his conclusion to exercise his discretion, and I am wondering whether his determination is a final determination, or whether there is any form of appeal from a sheriff's decision in that respect.

It may be that in order to have a kind of uniformity of treatment between Scotland and other parts of the United Kingdom, and Scotland and other parts of the Commonwealth, there ought to be some method of appeal from a sheriff's exercise of his discretion as described in that clause, although doubtless there is a perfectly satisfactory explanation which anybody other than a layman would already have understood. In this respect I should say that the only reason that your Lordships are being troubled with a speech by a layman of my own vast and indescribable ignorance on this topic is that my noble friend Lord Stow Hill is unfortunately indisposed and unable to assist your Lordships to-day. He had been very closely concerned with this subject and had set up one of the relevant committees.

Another point on which I should like to have a little assurance, rather than assistance, is the effect which this Bill will have when it becomes an Act on those who are still dependent during the course of proceedings under the Act. What I have in mind is the case of a woman who has been denied maintenance because her husband, the person who should be paying the maintenance, has departed elsewhere and there has been no possibility of collecting from him. She has been entitled to maintenance, has not had it and has therefore, we assume, been driven to applying for and receiving supplementary benefit. That will happen in a number of cases, as all of us who have been Members of Parliament and have had constituents to deal with know very well indeed. The payment of the supplementary benefit is a payment by the State, and the body which is going to benefit to that extent by being relieved of its responsibility is the State. That is all perfectly right and understandable, but I am anxious to be assured that during the period when the applicant is hopeful, because of proceedings under this Act, of getting payment, and probably a higher level of payment, from the person who should have made the payment the whole way through—let us say, the ex-husband —she will not be in any sense disadvantaged by what is a pure state of hope as opposed to a state of receipt of benefit, even though at the low level of assistance. I hope I have made the point clear.

It seems to me that during the course of giving effect to the provisions of this Bill it may well be that conscientious individuals will take the view that they ought at the earliest possible moment to stop the supplementary benefits which are being paid. That is a very proper point of view. One is anxious, however, that those payments should not stop prematurely at a point of time when the dependant, while harbouring the hope of getting benefit under this Bill, has nevertheless not yet received it. There will obviously be questions of accounting as between the person who has paid the arrears and the dependant who has received benefit under National Assistance, but I do not think we want at this stage of the Bill to go into those more detailed questions, although we may want to come back to them at a later stage. So, in short, we on this side must welcome the Bill and. give it an all the more warm welcome by virtue of the fact that it has been a long time geting here. We must nevertheless recognise that many difficulties have had to be overcome to make it possible for this load of misery to be reduced, if not extinguished. We hope the Bill will prove effective in practice when it reaches the Statute Book, as I hope it will at not too distant a time.

6.12 p.m.

LORD GARDINER

My Lords, your Lordships may well feel, in view of the very clear way in which the noble and learned Lord the Lord Chancellor has explained this rather complicated Bill, and the fact that it has been welcomed by my noble friend Lord Diamond, nothing more need be said. But I would ask the indulgence of the House for a few minutes to add a few remarks. I do so for three reasons, and I can assure the noble and learned Lord the Lord Chancellor that I am not going to raise matters of detail. First, it seems perhaps an appropriate occasion on which to make what is practically my first speech as a Back-Bencher, having resigned from the Front Bench, not because of any disagreement with my colleagues but simply because I wanted to be free. So for the first time for nearly seven years, I can say what I think—because even when one is in Opposition one naturally has to exercise care in a field for which one of one's colleagues in the other place is a shadow Minister. I must say that I now have a glorious feeling of irresponsibility coming over me, and I hope perhaps to introduce my own Bills and generally have some fun. This Bill, however, is not a question of fun, and this is my second reason for speaking. I was myself indirectly concerned with this Bill.

The fact is that within a few years of the passing of the 1920 Act everybody recognised that it had three defects, the ones which the noble and learned Lord has mentioned: it did not apply to Scotland; we could make reciprocal agreements with Commonwealth countries but not with foreign countries, and it did not apply to affiliation orders. The Commonwealth point became more serious when Eire left the Commonwealth, because that meant that, however many Irishmen deserted their wives here, the wives could get no maintenance. So well was this defect recognised that not long after the Act was passed, I think I am right in saying a Bill—probably a simpler one than this—was ready for introduction in 1931 and got squeezed out of the Parliamentary timetable only at the very last moment. Forty years have now gone by, forty years during which a shocking injustice has been done to deserted wives, whose husbands have left this country and gone elsewhere, so that it was impossible for the wives to get paid any maintenance at all; and in any case, of course, the woman who got an affiliation order was in the same position.

How does it come about that where the law needs changing, and injustice is being done to a not inconsiderable section of the community, forty years can go by without the injustice being put right? I think the reason is that this may continue until the Lord Chancellor of the day is given an overall responsibility for our law. Without attaching blame to anybody in particular, what has obviously happened is that each Home Secretary, being able to obtain Parliamentary time for only a limited number of Bills, has always had Bills which he has thought more important or which would reflect greater political credit upon him. There is a very great contrast to-day—and I say to-day advisedly, because yesterday the sixth Annual Report of the Law Commission was published.

Some of your Lordships may remember that I did not have at all an easy ride over the Law Commission Bill. It was not voted against on a Party basis, because it had been in the Election programme, and to vote against it would not have been in accordance with our custom. But I was told that no Law Commission was necessary; I was accused of wanting to appoint a few long-haired Left-Wing professors who would not recognise a Bill if they saw one. I was told that it did not matter what they did, because if they did produce some good proposals for legislation I had not provided any means for enlarging the amount of Parliamentary time to be given to law reform; that the whole exercise was a great mistake, because, whatever they did, no more law reform would be done than had been done in the past. So I am interested to observe from the Annual Report published yesterday that in the 1970–71 Session 18 Bills for which the Law Commission were in whole or in part responsible reached the Statute Book, apart from the massive Courts Bill, with which they had not been concerned. I would congratulate the noble and learned Lord, who wanted really massive law reform performance, on bringing into play all the stops, including—I will not say pressure, but influence, on Members of this House and the other place, of all Parties, to help him with particular Bills.

One must contrast this with the Home Office. I do not seek to blame Home Secretaries in particular. This is a Bill which we should have introduced if we had been returned to power. The Home Office as a whole have quite a good record. The record of the Department of Trade and Industry is absolutely shock ing. It is in almost every field of law for which that Department insist on claiming responsibility that law reform most needs to be done. They have more lawyers than the Lord Chancellor and the Law Commission combined. We ought to do something to ensure that a situation never again arises in which it is obviously necessary to remedy an injustice which is being caused to a sufficient number of people and forty years go by without its being done. The only way, in the end, in which this can be achieved is by giving the Lord Chancellor an overall responsibility for law reform. Subject to those observations, my Lords, I welcome this Bill. It has arrived at last. As many of your Lordships know, I have been pressing for it for some time. I am very glad to see that it is here, and I hope that it will very soon reach the Statute Book.

6.20 p.m.

BARONESS SUMMERSKILL

My Lords, I did not include my name in the list of speakers in the first place because I was so overjoyed to see this Bill and to realise that, at long last, these principles were being embodied in a measure, and I felt that anything I might say would prove superfluous. On further reflection, and having listened to the noble and learned Lord the Lord Chancellor, I realise that the chief beneficiaries are going to be women and children, and therefore all I need to do to-night is to thank him for promoting this measure which, although it is overdue, when at long last it comes gives those of us who are interested in this subject great satisfaction. I am quite sure that when the Bill is implemented it will relieve considerable misery which, in the past, has been endured by those in our community who are least capable of bearing it.

6.21 p.m.

LORD JANNER

My Lords, I hope your Lordships will excuse me for intervening at this stage. We have had, with all respect, an extremely careful and comprehensive explanation of the Bill itself and of its legal terminology and implications. I want to say that I entirely agree with the Bill, and underline what the noble and learned Lord, Lord Gardiner, has said.

Those of us who have had some experience in the solicitors' branch of the profession know what terrible anguish has been caused by the inability of those who are now going to benefit by the Bill to obtain the necessary funds to enable them to live, although orders have been made by which they are entitled to receive those funds. I do not know whether your Lordships can appreciate how deep is the feeling about this matter. It can only be done, I think, in the office of a solicitor where a wife or person concerned opens her heart about the circumstances in which she is placed. It has been my experience, and I believe that of most of my colleagues, when confronted with these cases, to feel how terrible is the situation, that although an order has been made it cannot be enforced.

The whole tragedy of the situation becomes even more serious when one realises that this has been going on for so many years. I am not saying anything that is not known to the community at large. Everybody knew that these hardship cases existed; everybody felt that there was a possibility of the situation being put right. But for some unknown reason—as was implied and expressed by the noble and learned Lord, Lord Gardiner, to be the position in some other cases—we did not move quickly enough. The tragedy of a situation is not always sufficiently appreciated for action to be taken. Action could have been taken here. Since the 1920 Act we knew what the deficiencies were, we knew what the trouble was, and we knew that there was a possibility of putting that right, because other countries had to some extent, if not entirely, put it right. Yet here we sat watching a situation in which people had to receive supplementary benefits and so on, and were placed in a position in which they should never have been placed, because the offending party was not complying with the orders but was getting away with "murder", if I may so put it. In addition, in most instances the man was capable of making the payment to the wife or the person concerned, because the court itself had come to the conclusion that he was in a position to do it. This is the serious part of the matter. It is not as though an order was made which could not be complied with. The court takes into consideration the circumstances of the individual concerned, and makes an order accordingly. By introducing this Bill the Government have now taken a step which will provide remedies for this position.

May I point out that in the Bill there is reference to a Convention. How serious becomes the position when these Conventions are made but we do not ratify them for so many years. The Convention was made in 1956. This is not the only case in which a Convention has been ignored for a long period. The Convention of 1956 dealt with certain aspects of the position; we are now accepting the terms of that Convention, and at long last we are going to ratify it. As I have said, it is not the only such Convention. There is the Convention on Human Rights.

BARONESS SUMMERSKILL

Equal pay.

LORD JANNER

My Lords, there arc probably dozens in regard to which we should have moved and we have not moved; yet eventually we come to the conclusion that something has to be done about them, and we ratify them years after the time when we should have ratified them. I think that there should be some procedural method devised whereby we deal with similar situations to the one we are faced with to-day, without having to wait any length of time. I have had the experience of introducing quite a number of Private Member's Bills in the other place; but the trouble and the obstacles that are put in one's way before one can get through something which is obviously necessary could, I was going to say, break one's heart. It has not broken my heart, but I think that many people in Parliament refrain from attempting to introduce Private Member's Bills merely because obstacles are put in the way, and also the excuse, "There is not time". What time is needed for a Bill of this description, for example, to be accepted? I do not think for one moment that if everybody consents to its terms—of course there may be a few technical points to be dealt with from a legal standpoint—it should take more than a few hours to get a Bill of this sort through both Houses. I cannot see why there should be any delay.

Your Lordships will appreciate that this indicates that a procedure might be found whereby Back Benchers might, with the consent of the Government, have opportunities of bringing in more measures than at present. If the Government have not got time, there is no reason why the Government should not turn to some of the Back Benchers of either House who are interested in a particular subject and, knowing that there is not likely to be any contention at all about the matter itself, induce or persuade them to introduce legislation of this description.

I conclude by saying that we are all very grateful to the Government for having at long last introduced the Bill. I do not blame them for the delay; all Governments have been very lax from the time of the 1920 Act, and indeed before. May I say again, without appearing to be in any way impertinent to the noble and learned Lord the Lord Chancellor, that I cannot imagine that anyone could have presented this Bill—those of us who are lawyers naturally have a little advantage in this respect—in a clearer and better form than he did, and we are very grateful to him.

6.30 p.m.

THE LORD CHANCELLOR

My Lords, I should like to begin by thanking those noble Lords who have taken part in this debate for the welcome which they have given to the Bill, and for the observations which they have made about it. If I may take the speeches in the order in which they were delivered, the noble Lord, Lord Diamond, asked me three questions which I shall now handle as best I can. The first question related to arrears. Curiously enough, the second question, which related to the discretion of the sheriff and the sheriff court, bears, so I am informed—and the House will keep in mind that I am not an expert on Scottish law—a close relationship to the first, although not one which is apparent on the face of it.

First of all, may I explain that in England, Wales and Northern Ireland the general law is that a magistrates' court has discretion to remit a part or the whole of the arrears that are outstanding. That is part of our domestic law. It is not part of this Bill. This discretion is exercised by the court having regard to the defaulter's ability to pay, and from that discretion as part of the domestic law—to answer the second part of the question of the noble Lord, Lord Diamond—no appeal lies. This same provision—the whole of it, both the discre tion and the absence of appeal—applies automatically under the Bill, because what we are in fact doing under Part I of the Bill is to apply our domestic law to registered orders. It could, of course, be argued that there ought to be an appeal in these cases, although there are arguments the other way; for example, I should have thought that it would lead to a great deal of delay. But it certainly would not be right to introduce an appeal for the registered order which did not apply to the whole of our domestic law.

That brings me to the provisions of Clause 20 to which the noble Lord drew my attention. Whereas in England, Wales and Northern Ireland the magistrates' court has power to remit arrears, in Scotland the sheriff does not have this power. It therefore becomes necessary under Clause 20 to adapt the new law to Scotland. The sheriff has power to revoke an order. He also has to give leave to enforce the arrears which he does not have power to remit. Where he provisionally revokes a registered order under Clause 9(3) of the Bill, the payer would have to have shown at least a prima facie case for revocation. As your Lordships realise, where a revocation is sought, the procedure under the Bill is that you get a prima facie case for registration in the place where the payer resides, and not where the payee resides, but of course it cannot be complete until the payee has had her say.

Therefore, the revocation order in the enforcing court can only be provisional and has to be confirmed by the payee's court before the revocation is complete. That means that a considerable time may elapse between the provisional order and the complete order, and hardship can be suffered by the payer. It follows that arrears that have accrued in these circumstances can be enforced under Clause 20 only by leave of the sheriff. Equally, when an order has been made before the commencement of this Act (as it will be), considerable arrears may have developed because there was no means of enforcement. So hardship could be caused if arrears were enforced right away. Therefore, again, the sheriff's discretion is necessary in Scotland, although the law of England, Wales and Northern Ireland does not make it quite so necessary, because the general law is different.

One other question which the noble Lord, Lord Diamond, asked was about the position of dependants. Dependants who have been on supplementary benefits will not be disentitled to supplementary benefits while proceedings are pending under the Bill. If the dependant is entitled to benefit in her own right, she will continue to be entitled to benefit while these proceedings are pending. It will of course be for her to claim entitlement under the general law, and no doubt she will be guided—and I hope that she will—by her local supplementary benefit office in claiming it. The claim against the husband may be for a good deal more than the supplementary benefit; he may be very well off. Therefore the issues are separate. But the short answer to the question which the noble Lord, Lord Diamond, posed, is that the entitlement to supplementary benefit remains until the money is in the payee's pocket.

The noble and learned Lord, Lord Gardiner, told us, all engagingly, that he can now, for the first time for many years, say what he thinks. That is going to be very exciting. He told us that he is going to be free to propose a great number of Bills of his own. That also will be very exciting. I can tell him that if he is short of any Titles, it is quite possible that my Office may give him some law reform Bills which he may like to undertake, because we are always on the look-out for likely sponsors of Bills who can possibly explain what they are about. and he will be very high on my list. I must warn him that if he reads Campbell's Lives of the Lord Chancellors, he will see that when Lord Brougham ceased to be Lord Chancellor some time ago he produced, I think 362 Bills in a single Session, all of them for law reform. I hope that he does not show quite so much zeal as his predecessor on the Woolsack. I do not think I am so free as he was to express my opinion about the potential responsibility of the Lord Chancellor for law reform. I have on a previous occasion told him of some of the difficulties that I see.

I think it is fair to the Home Office to point out, both to the noble and learned Lord and to the noble Lord, Lord Janner, that. so far as concerns Part II of the Bill, the Convention which we have made use of in this Bill—and this is partly an answer to the noble and learned Lord, Lord Gardiner—was not available to the Home Office in 1931. It came into operation as available machinery only in 1956. Although there may be a good deal in the comment of the noble Lord, Lord Janner, that that, too, was 15 years ago, I would point out to him in mitigation that it is not simply a question of ratifying a Convention by one of those nice, short little Bills which schedule a Convention and have one clause in them. As your Lordships will see from Part II of the Bill, it has taken 15 clauses of legislation to put us in a position to adhere to the Convention.

LORD JANNER

My Lords, will the noble and learned Lord excuse my interrupting? If we can do it now, why on earth could we not do it 15 years ago?

THE LORD CHANCELLOR

My Lords, there is a great deal of truth in that. At the same time, it is a more complicated operation than some Convention ratification exercises involve. I can say to the noble and learned Lord, Lord Gardiner, that I think he got rather churlish treatment over his Law Commission Bill. I can say this without any sense of shame, because I took it upon myself in the other place, when I was still a Member there, to get up from the Back Benches, rather exceptionally, and say that I thought it had been rather ungenerously received. I quite accept from him that the Law Commission has proved its usefulness in a variety of different ways. Certainly in the short time during which I have been on the Woolsack 1 have used it as much as I could for a variety of different purposes, and I hope that when Mr. Justice Scarman, its Chairman, is ultimately free from his Northern Irish responsibilities it will be even more useful in the coming months than it has been in the past. But that is another question.

With that, I think I have dealt with the points raised in debate, but I have this in general to say about law reform. I think we have developed our techniques in Parliament a little better than our predecessors did. If I may say so without committing a breach of privilege. I think the Second Reading Committee in the House of Commons has made a great difference to Lord Chancellors and to those who are keen on law reform, as well as the Law Commission. One of the by-products of the Law Commission has been that Private Members have ready-made Bills which they can present. It is not just a question of sitting down and trying to be your own Parliamentary draftsman any longer. If you are interested in law reform, there are usually one or two Bills which are ready-made for you by the Law Commission, and that is a great assistance. Further, more people are beginning to realise the use which can be made of this House in law reform. A Bill which is introduced in this House, either by the Government or by a Back-Bencher, and which is processed through our Committee and given a Third Reading here, has a much better chance of survival in the House of Commons than a Bill produced rather late in the ballot in the House of Commons, which has to depend upon Government good will even to get airborne at all, and which you probably cannot get a Parliamentary draftsman to process at all. So I think we are learning the techniques of law reform.

We are going very shortly to debate the Report of the Procedure Committee. I personally have a certain amount of interest in that because there is a proposal in that Report which relates to Joint Committees of the two Houses. When the burden of law reform becomes heavier than it is now—and I think it will become heavier than it is now for a reason which I shall give in a moment—we shall have to look at fresh Parliamentary devices to secure time for it. The reason why I say that the burden of law reform will become heavier than it is now is this. The Law Commission's programme, if one has watched the sequence of Reports which they have delivered, was always an ambitious one, and it will culminate in producing really long codifications of our law. This will involve on the part of those who are interested in law reform a re-thinking of some of our Parliamentary methods of dealing with long and complicated Bills. I doubt whether in the future Governments will be able to find time for long Bills of that kind—say, producing a whole penal code, or something like that—unless we adopt new devices and new thinking about procedure. However, Mat is in the future. In the meantime, I thank the House for the reception which it has given to this Bill, and if I may now revert to my central position. I will put the Question.

On Question, Bill read 2ª, and committed to a Committee of the Whole House.