HC Deb 12 March 1958 vol 584 cc567-76
Mr. Renton

I beg to move, in page 6, line 36, at the end to insert: then, subject to the next following subsection". This is really a clearing Amendment for the more substantial one which follows, in line 43, to insert a new subsection (2).

Mr. Deputy-Speaker

I think that it might be to the convenience of the House if we were to discuss both Amendments together.

Mr. Renton

I ought to mention that there will be a consequential Amendment to Clause 7, in page 8, line 25, after "unpaid", to insert: then, subject to subsection (2) of that section

Mr. Lee

Mr. Deputy-Speaker, would you agree that the Amendments in the names of my hon. Friends relating to this subject could be discussed at the same time?

Mr. Deputy-Speaker

It might be better to discuss the Amendments to the Amendment separately.

Mr. Renton

I suggest that we should see whether the House accepts the main Amendment, and then we could consider separately the proposed Amendments to that main Amendment, because they raise a much narrower point which could conveniently be dealt with separately.

I gave an undertaking in Committee, which is to be found at column 147 of the OFFICIAL REPORT, that I would move an Amendment on Report to provide a safeguard against the making of an attachment of earnings order where the payments under the maintenance order had fallen into arrears through no fault of the defendant. We had a very full discussion about this in Committee. I must confess that the line which I originally took was that I was prepared to leave it to the discretion of the magistrates. I felt that they would take into consideration everything that was said on both sides of the case and come to a just conclusion. I felt that there might be pitfalls about the onus of proof if the Amendments suggested by the Opposition in Committee were accepted.

Together with my right hon. Friend the Home Secretary and my hon. Friend the Joint Under-Secretary, I have given this matter considerable thought, and the Amendment which I am moving is the result. What we have done is this. We have, as was suggested, considered the precedent which is to be found in Section 74 of the Magistrates' Courts Act, 1952, which requires the court, on the hearing of a complaint of arrears, to inquire whether the default of the defendant was due to his wilful refusal or culpable neglect and which provides that, if the court is of opinion that the default was not so due, no warrant of commitment shall be issued. That is a useful analogy.

Our Amendments follow that conception as closely as possible, or perhaps I should say, as closely as is appropriate to the circumstances of this Bill. The effect, therefore, is to prevent an attachment of earnings order being made under either Clause 6 or Clause 7, if the defendant satisfies the court that the default was not due to his wilful refusal or culpable neglect. The onus will, of course, be upon him to prove that. It would be impossible to place the onus upon the wife, because she would not have the knowledge of the facts which would enable her to show that there was no wilful refusal or culpable neglect. It is for the defendant, who has the knowledge of his own behaviour, doings and circumstances, to show, if he is able to do so, that it was not due to default on his part. We have left it in such a way that the onus is clearly on the defendant. I hope that the House considers that this is the right way for us to deal with the matter.

Mr. J. Silverman

I take it, Mr. Deputy-Speaker, that I should not move my Amendment at this point.

Mr. Deputy-Speaker

It would be best to discuss the substance of the Minister's Amendment.

Mr. Silverman

We on this side of the House accept the principle of the Amendment which we believe is a substantial concession. We are very glad that the Joint Under-Secretary of State has paid serious consideration to the very forcible arguments advanced in Committee. The Amendment improves the Bill considerably. I hope that we shall improve it still further when we reach my Amendment.

Mr. Anthony Greenwood

I want to endorse the gratitude expressed by my hon. Friend the Member for Aston (Mr. J. Silverman) to the Minister. We appreciate the manner in which the Government have gone some way to meet us on this point. I should remind the House of the reasons why we fought hard on this issue in Standing Committee and why we are especially grateful that even at this late hour the Government have conceded the force of the arguments which we advanced in Committee. I do so because not everybody reads the OFFICIAL REPORT of Standing Committees and we should put in the OFFICIAL REPORT Of the House the reasons which led us to fight hard on this issue.

The wording moved by the hon. and learned Member is acceptable to us. It is slightly different from the Amendment which we proposed in Committee, but it contains the key words which we regard as of the greatest importance—"wilful refusal or culpable neglect".

Mr. Deputy-Speaker

Is the hon. Member dealing with the correct Amendment?

Mr. Greenwood

I am dealing with the Amendment which the Minister has moved.

Mr. Deputy-Speaker

That is the Amendment in line 36.

Mr. Renton

In moving it, I asked that we should also discuss the Amendment in line 43 which is the substantive Amendment. The Amendment in line 36 is merely a clearing Amendment.

Mr. Deputy-Speaker

If the House agrees, the simplest thing would be to pass the clearing Amendment now.

Mr. Greenwood

I understood, Mr. Deputy-Speaker, that when the hon. and learned Member proposed that we should discuss the two Amendments together you indicated that that course was acceptable to you. My hon. Friends and I have proceeded on that assumption.

Mr. Deputy-Speaker

I am in some difficulty because there is an Amendment to the Minister's Amendment, in line 43. The simplest course would be to pass now the Amendment in line 36.

Amendment agreed to.

Amendment proposed: In page 6, line 43, at end insert: (2) The court shall not make an attachment of earnings order if the defendant satisfies the court that the failure to make payments in accordance with the maintenance order in question was not due to his wilful refusal or culpable neglect—[Mr. Renton.]

10.45 p.m.

Mr. Greenwood

Throughout the discussions we have proceeded with two principal aims in mind. One was to ensure that the woman entitled to benefit under a maintenance order got the benefit to which she was entitled and the second was to ensure that any machinery which was created was not unduly oppressive of the husband in cases of this kind. We therefore considered three possible ways of doing it. The first was to extend the period of arrears which had to accrue before an attachment of income order could be obtained. The second was to limit the period for which orders were valid, without being specifically renewed by the court, and the third was to provide that attachment orders could be issued only in cases of wilful refusal or culpable neglect.

We rejected the first two alternative courses of action—one of them after considerable debate in the Standing Committee, and the other without bothering to trouble the Committee with it—because we felt that both courses might make it still more difficult to get at the sort of person that everyone was agreed we wanted to get at. We therefore restricted ourselves to the third course of action, which was to seek to restrict attachment orders to men who had wilfully defaulted in their obligations, or were guilty of culpable neglect.

Those were the motives that lay behind the proposals that we made in the Standing Committee. We were sorry, at the time, that the hon. and learned Gentleman was not able to accept them, but we do express our appreciation to -him for having met them now.

Mr. J. Silverman

I beg to move, as an Amendment to the proposed Amendment, to leave out "the defendant satisfies." and to insert, "it appears to."

Mr. Speaker

I wonder whether we could deal both with this Amendment and that which follows it, after "failure", to insert, "of the defendant".

Mr. Silverman

Yes, Mr. Speaker, I shall be happy to do so, because both deal with substantially the same point.

While we accept the principle of and are grateful for, the concession made by the Minister, I think that if the Under-Secretary considers our reasons for this Amendment to his proposed Amendment he will agree that ours improves his. As his Amendment stands, the defendant must satisfy the court, and the implication of that is that he must be present, and must produce arguments, facts or evidence that satisfies the court.

In a large number of cases that may not be so. For instance, the defendant may be at work and find it difficult to get away. He may be in hospital, when we will have the anomalous situation that even if it comes to the notice of the court that the defendant is in hospital, and, therefore, cannot be expected to attend, the magistrates may well say—they are, indeed, entitled to say, if the Government Amendment is accepted as it stands—that the defendant has not satisfied them because he has not attended. That is the reason for our Amendment to the proposed Amendment.

I would point out to the hon. and learned Gentleman that these words follow the principle, even if not the precise wording, of Section 74 (6) of the Magistrates' Courts Act. That subsection says: On the hearing of a complaint under this section the court shall inquire whether the default of the defendant was due to his wilful refusal or culpable neglect; and, if it is of opinion that the default was not due to such refusal or neglect as aforesaid, it shall not issue a warrant of commitment to enforce payment of the sum due. In substance, that embodies the same principle as is contained in our Amendment. The object is simply to ensure that the defendant himself does not have to be present in court. Even if it is suggested that our wording makes no difference, it is, at any rate, an indication to the magistrates as to how they should act.

Obviously it would be grossly unjust if, just because a defendant was not present or could not be present, the magistrates should automatically decide to make an order. I suggest that we are proposing a reasonable addition which will improve the Minister's Amendment.

Mr. MacDermot

I beg to second the Amendment to the proposed Amendment.

I hope that we may persuade the hon. and learned Gentleman—a moment ago I thought I saw him shake his head in a negative fashion—that our Amendments are reasonable ones.

When addressing the House on his last Amendment, the Minister said that it would not be possible to put the burden of proof on the wife to show that the husband had means to pay. I would call his attention to the procedure in the High Court and county court under a judgment summons. This is precisely what happens there. The burden of proof is put on the wife, hut there is power for the court to compel a husband to attend and answer on oath so that the wife may get at the facts and prove them to the court.

The wording of Section 5 of the Debtors Act, 1869, is: That such jurisdiction"— that is, jurisdiction to make a committal order— shall only be exercised where it is proved to the satisfaction of the court that the person making default either has or has had since the date of the order or judgment the means to pay the sum in respect of which he has made default, and has refused or neglected or refuses or neglects, to pay the same. The burden is clearly on the wife. It goes on: Proof of the means of the person making default may be given in such manner as the court thinks just; and for the purposes of such proof the debtor and any witnesses may be summoned and examined on oath, according to the prescribed rules. As has been pointed out by my hon. Friend, when we come to the existing procedure in magistrates' courts the burden is not put on the defendant of satisfying the court negatively of the reasons why no order should be made. It is left to the court to inquire, and the wording is "if the court is of opinion"—which is comparable to our words "if it appears to the court". The burden of proof is not cast on either side; the matter is quite open. If as a result of the evidence laid by the wife it is clear that it is not a proper case in which to make an order, the magistrates have power to act on that evidence.

So far from our Amendments introducing any new procedure or principle, the Minister's Amendment as it stands is the one which does that. The casting of a burden on the defendant is something which does not exist at the moment in the High Court or county court under the judgment summons procedure, and it does not exist under Section 74 of the Magistrates' Courts Act. I trust that our Amendments will be accepted.

Mr. Rawlinson

The hon. Member for Lewisham, North (Mr. MacDermot) has put his case far too high. The fact that the burden is put upon the defendant in the circumstances of the Minister's Amendment seems to me to be very much more sensible.

The hon. Member for Aston (Mr. J. Silverman) said that the defendant might not be there, that there might be some physical or other difficulties. Those are procedural difficulties which could easily be overcome. The fact that the man is not there does not mean that the burden cannot be discharged by him or by those who appear for him or by the manner in which the matter is placed before the court.

Putting the onus upon the defendant is not a strange principle in English law. I should have thought it was perfectly proper in this case that the onus to satisfy the court should be put upon the defendant.

I appreciate what has been said about using "appears to" in place of the words taken from the Magistrates' Courts Act, but I think that this privilege—and it is a privilege which is being given to defendants—should be matched by putting a burden on defendants. [An HON. MEMBER: "Privilege?"] It is a privilege which people will get in not being sent to prison. [Laughter.] I support the Bill, but although hon. Members let go with hearty guffaws, I must remind them that many gentlemen will be giving hearty guffaws when the Bill becomes law, because it will be to their advantage—as it will be to everybody's advantage. It is most sensible legislation for which we are partly indebted to a distinguished hon. Lady on this side of the House.

With great respect, while appreciating the argument of hon. Members opposite, I think that they have put it too high. I think that the burden of proof should be put fairly and squarely on the defendant and in all reasonable circumstances he will be able to discharge it, and if he is not able so to do, he will be the sufferer.

Mr. Ede

I feel more comfortable now, for my personal friendship with the hon. Member for Epsom (Mr. Rawlinson) is now tinged with our usual political hostility.

I speak as one who was for many years a magistrate dealing with these matters at magistrates' courts level. The highly legalistic arguments which can be adduced on this kind of matter tend to disappear in the atmosphere in which a matrimonial court meets, especially when neither side has lawyers to misrepresent the case. It then remains for the court to find out from the two people involved what is the position between them.

It is unreasonable to insert a requirement, as the Government have done, that the defendant should satisfy the court on a negative. That is bad in itself. One has to make up one's mind from exchanges between the parties and the answers the magistrates get, when they get an opportunity of getting a word in edgeways between the wife and the husband.

Anyone who has been a magistrate dealing with these things knows that these cases are some of the most lengthy and some of the most difficult in which to arrive at the truth. I doubt whether it is possible to get beyond the words "it appears to the court" which my hon. Friends propose to insert. That is the way in which most of these matters are resolved. It is true that one is some- times helped when there are arrears and the woman has secured that the money shall be paid through the court. The officer who is responsible can then some- times ask some very pertinent questions and be of great help to the court.

I implore the Government not to make these proceedings so formal that, in the end, their very formality defeats the ends of justice. These courts are a very valuable addition to the machinery of the law in these matters. I was a magistrate for such a long period that I remember the time before these courts were established. I know the problems that then existed, when the matter had to come before the whole of the bench in public, to the great amusement, on occasion, of the people who had collected in the court to listen to the matrimonial squabble.

The great value of these courts has been that the matter is dealt with in formally in such a way as to enable justice to be done and the truth to be discovered. To insert such words as the defendant satisfies the court may make it exceedingly difficult to pre- serve the atmosphere which has been the distinguishing feature of these courts throughout their history.

11.0 p.m.

Mr. R. A. Butler

I told the hon. Member for Rossendale (Mr. Anthony Greenwood) that if such an issue as this arose it would be unwise to pursue it further tonight. Rather than do that I would prefer that I should move, "That the debate be now adjourned," so that we can start again on a fresh day. My hon. and learned Friend the Joint Under Secretary explained some of the difficulties involved in this matter. We do not want to put the burden upon the applicant; we think that it would be very difficult for her to prove. Equally, we want to meet the desire of the right hon. Member for South Shields (Mr. Ede)—with his life-long experience of magistrates' courts—that there should be as much discretion and as little rigidity as possible. To find the truth of the matter I think that we had better adjourn the debate. I therefore beg to move, That the debate be now adjourned.

Mr. V. Yates

On a point of order. I apologise, to you, Mr. Speaker, but I was not present when the Home Secretary spoke about the proposed new Clauses. If we adjourn the debate tonight, am I to understand that the proposed new Clause in the name of my hon. Friend the Member for Dagenham (Mr. Parker) will not be discussed in the House? It deals with a very controversial matter, and some of us would like to say something about it. I was informed that this would be discussed in another place and not here.

Mr. Butler

Perhaps I can assist the hon. Member. I think that he is referring to the Amendment—not Clause—in page 15, line 44, at end insert: (5) Section seventy-five of the Magistrates' Courts Act, 1952, shall be amended by the addition of the following words at the end of the section "but subject to any order which may be made under the next succeeding section the arrears due at the date on which the person is committed to custody shall continue to be due and payable notwithstanding the person has been committed to custody and has remained in custody for the whole of the period for which he was committed".

Mr. Yates


Mr. Butler

My hon. and learned Friend the Joint Under-Secretary referred to it in advance because it hung together with a previous matter that we were discussing. According to the rules of the House there is nothing to prevent the Amendment from being on the Notice Paper when it is next printed. We have simply made an advance reference to it in saying that we should like to meet the point. The Government have given an assurance that they want to meet the point. It can, therefore, be discussed when we consider the Bill again—and I think that it can be discussed in a very amicable manner.

Question put and agreed to.

Debate to be resumed Tomorrow.

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