HC Deb 12 March 1958 vol 584 cc558-63

In paragraph 4 of the Third Schedule to the Magistrates' Courts Act, 1952, the words "civil debt" shall be construed to include any debt arising from the non-payment of sums due under a maintenance order.—[Mr. MacDermot.]

Brought up, and read the First time.

Mr. MacDermot

I beg to move, That the Clause be read a Second time.

The effect of the Clause is to make the maximum period for which a magistrates' court can commit a person to prison in enforcement of a maintenance order the same as the period in respect of which it can commit a person to prison for civil debt. I hope that, after the somewhat shattering experience which the Government have had in the reception of the last new Clause, they will be disposed to approach this proposal in a rather more constructive and conciliatory frame of mind.

As we learned from the Home Secretary, the reason for the rejection of the last new Clause was that the Government felt that it would produce an anomaly, another anomaly in a matter where there are already many anomalies. The object of this new Clause is to try to remove at least one of the major anomalies. It is the anomaly that where a maintenance order is enforced by an order for committal in the High Court or in the county court, the maximum period for which a debtor can be imprisoned is six weeks, whereas under the magistrates' court procedure he can be imprisoned for up to three months. There are other differences and other anomalies, one of which is met by one of our Amendments on the Amendment Paper.

In order to explain the reason for the Clause, I want briefly to explain the present anomalies in the law relating to the imprisonment of people for debt. Imprisonment for debt can now arise in three ways. It can arise, first, under Section 4 of the Debtors Act, 1869. As far as I know this course is adopted very rarely in practice. Section 4 contains a general provision for abolishing imprisonment for debt, but certain exceptions are made, keeping alive the power to imprison for a period up to one year. That power still exists. I can give some examples of the ways in which the power can be used. In certain circumstances trustees who have failed to pay moneys to beneficiaries can be imprisoned, and I am sorry to say that my friends, the attorneys and solicitors, may be imprisoned for a period of up to one year for failing to pay costs when ordered to do so, as a result of misconduct; but I am happy to say that there is no similar provision to which other members of the legal profession are liable.

A person can also be imprisoned for debt for up to one year if he fails to pay Estate Duty or Purchase Tax. This provision was introduced by the Crown Proceedings Act. I am sure that the hon. Member for Kidderminster (Mr. Nabarro) would be most interested to know that. The provision does not apply to a failure to pay Income Tax or Surtax. All these matters are outside the sphere with which we are concerned, and I mention them only to show what anomalies still exist.

Secondly, persons can be imprisoned for failure to pay debts under Section 5 of the Debtors Act, which is the normal High Court procedure. There, the maximum period is six weeks, and the committal order is made by way of judgment summons, obtained in the High Court itself—either upon an order from a bankruptcy judge, or in the Probate, Divorce and Admiralty Division. In that case, we come at once to the subject matter of the Bill, namely, maintenance orders.

Many maintenance orders are made in the High Court, including many quite small ones affecting persons of limited means. Those can be enforced by a judgment summons taken out in the Divorce Division of the High Court. More frequently they are enforced by the order being transferred to a county court and a judgment summons being taken out there. The period of imprisonment in that case is limited to six weeks.

In all cases, under the judgment summons procedure the court must be satisfied that the debtor has deliberately refused or has neglected to pay the amount of the debt when he had the means to do so. An important distinction between this power and the power existing under the magistrates' courts procedure is that the imprisonment does not wipe out the debt or the arrears in respect of which the person is imprisoned. It is true that it is provided that neither under the High Court nor the county court procedure can a person be imprisoned twice in respect of the same arrears, but if a debtor gets into arrears again through the non-payment of further instalments he can be imprisoned for a second time, and I am told that it frequently happens.

Thirdly, persons can be imprisoned under the Magistrates' Courts Act, 1952. Section 64 of that Act provides for this to be done by way of the ordinary magistrates' court committal order. That course can be adopted in two sorts of circumstances, in respect of two classes of case. The first concerns imprisonment for a civil debt. There are many statutory provisions whereby certain sums are recoverable by summary procedure before magistrates as a civil debt, and in that case the debtor can be imprisoned for varying periods, depending upon the amount of the debt. If it does not exceed 10s. he can be imprisoned for a period of up to seven days; if it does not exceed£1, the limit is fourteen days; if it does not exceed£5 it is one month, and if it exceeds£5 he can be imprisoned for up to six weeks. That is in the case of a civil debt. In other words, the maximum period there is the same as in the judgment summons procedure in the High Court or the county court.

10.15 p.m.

The second class of case is affiliation orders or orders enforceable as affiliation orders. All such orders are maintenance orders within the terms of the Bill we are now discussing. In those cases the maximum period can depend on the amount of the debt. If it does not exceed£20, the maximum period is two months; if it does, the maximum period is three months. The result is that there has always been the anomaly that where a maintenance order was being enforced in the High Court, the husband—I use that term for the purpose of brevity; it is not only husbands with whom we are concerned—was liable to be imprisoned for up to six weeks, whereas in the magistrates' court he was liable to be imprisoned for up to three months.

This anomaly, which I do not think anyone can justify as a matter of principle—it has an historical reason for its origin but it is not a matter of principle—now becomes untenable and intolerable only when we have regard to the effect of Clause 3 (1) of this Bill; because we now have the position that a High Court maintenance order will be enforceable in a magistrates' court, and a magistrates' court maintenance order will be enforceable in the High Court. The result of Clause 3 will be that one and the same order can result in quite different terms of imprisonment, depending on which court it is being enforced in, which is a matter which may arise solely on the decision of the wife and in some instances will not be the decision of the court at all.

If, for example, one gets a High Court maintenance order resulting from normal divorce proceedings in the High Court, the maximum period will be six weeks, but if it is registered in the magistrates' court, then the magistrates will be able to to commit the same husband in respect of the same order for up to three months. This cannot be regarded as an anomaly which in any way does credit to our judicial system.

Secondly, if there is a magistrates' court maintenance order, the magistrates would have the power by way of enforcement to imprison the husband for up to three months, whereas if the wife chooses—and here she has the right as a matter of right—to register the order in the High Court, the period is limited immediately to six weeks.

I hope we shall not hear again the argument that we heard in opposition to the last Clause, that it would be unsatisfactory to accept the Clause because it would produce an anomaly between the powers of magistrates when dealing with the enforcement of civil debts and their powers when dealing with the enforcement of maintenance orders. Surely that anomaly, if it be such, is a very small matter compared with the wholly unjustifiable and intolerable anomaly which will result if the Clause be not accepted.

Mr. J. Silverman

I beg to second the Motion.

Mr. Renton

The hon. Member for Lewisham, North (Mr. MacDermot) has rightly said that this new Clause would remove an anomaly, unlike the previous new Clause, which would have created an anomaly. The hon. Gentleman has stated his case very fully and I am in general agreement with him. I am grateful to him for putting the detailed arguments on record.

It would be convenient if I could be permitted to refer to a later Amendment to Clause 16, in the name of the hon. Member for Dagenham (Mr. Parker), in page 15, line 44, at the end, to insert a new subsection (5), because it deals with arrears being wiped out or not in magistrates' courts and should be considered in conjunction with the new Clause which has just been moved. The converse proposition would also be true, that we should not consider the question of assimilating the maximum periods of imprisonment without considering the effect of being imprisoned at all.

Without labouring the matter too much—we want to make progress—I hope that the hon. Member for Lewisham, North and the hon. Member for Dagenham will take it from me that we have carefully considered the views which they put before the Standing Committee. I mentioned at that time that various discussions would have to take place with outside bodies, especially on the Amendment in the name of the hon. Member for Dagenham. These discussions are not complete. I have intimated this privately to the hon. Member for Ro[...] dale (Mr. Anthony Greenwood).

In the circumstances, I invite the hon. Member for Lewisham, North to withdraw his Motion. I undertake that we will, after the completion of the discussions, put down for another place an Amendment suitable to cover the point the hon. Member raised and also, not to anticipate too much, to cover the point raised by the hon. Member for Dagenham. I hope that that will give satisfaction to the House and restore the friendly atmosphere in which, hitherto, we had been conducting the proceedings on the Bill.

Mr. F. Lee

We are grateful for the manner in which the Joint Under-Secretary of State has dealt with the point raised by my hon. and learned Friend. We appreciate the hon. and learned Gentleman's difficulties and we are grateful for what he has said about an Amendment in another place. I therefore advise my hon. and learned Friend not to press the Motion.

Mr. MacDermot

I beg to ask leave to withdraw the Motion.

Motion and Clause, by leave, withdrawn.