HC Deb 25 March 1958 vol 585 cc253-61
Mr. Renton

I beg to move, in page 12, line 15, to leave out from the second "of" to "determine" in line 16 and to insert: the person in whose favour the order was made. The Amendment arises in this way. Under Clause 17 (2), a person entitled to receive payments under the related maintenance order includes any person entitled to receive payments either directly or through another person or for transmission to another person. It follows that, as things stand in the Bill at present, those words would include the clerk of a magistrates' court through whom payments are made under the existing law. In Clause 12, however, we are dealing with people who should have the right to make an application to the court for a determination by the court of what may or may not be included in the word "earnings".

It is obviously right that the husband or the wife, or, indeed, the employer if he is in doubt, which will not be often, should have a right to make the application, but it is not right that the clerk of the court should come into such proceedings. If he were to do so, he would find himself in the embarrassing position of advising the court on a point of law if the court should require his advice. We should not contemplate circumstances in which the clerk could possibly be a party to the application, as he could be if we did not make the Amendment.

Amendment agreed to.

Mr. Renton

I beg to move, in page 12, line 42, to leave out "a later" and to insert "an earlier".

Mr. Deputy-Speaker

I think that this Amendment and the next one, in line 43, go together.

Mr. Renton

Yes. I think that would be convenient. The Amendment in line 43, to leave out "an earlier" and to insert "a later" is the converse of the one I have moved, in line 42.

I moved these two Amendments in Committee, as hon. Members will recollect, but I withdrew them in order to reconsider the position. I have now done that. Both Amendments are concerned solely with the order in which amounts due under a maintenance order are to be discharged by payments received under an attachment of earnings order. We had a certain amount of misunderstanding in Committee about whether this affected the position of different maintenance orders or different attachment of earnings orders. In fact, it does neither. The particular subsection deals solely with different payments under the same maintenance order. It is a matter of the order in which those payments should be discharged, whether the later should be discharged before the earlier or the earlier be discharged before the later.

The Bill at present provides that payments shall discharge the sums due under the maintenance order in the reverse order to that in which they became due—that current payments shall be discharged before arrears. We feel that we should change that order of priorities, for reasons which I shall give. The two Amendments would have that result.

First, it has been represented to us by the Justices' Clerks' Society that the present order of priorities in the Bill is the reverse of that normally followed by clerks of magistrates' courts in dealing with maintenance payments under existing procedures. I should point out that the present practice is based on judgments of the Divisional Court in 1953, the leading case being R. v. Miskin Lower Justices, ex parte Young. For reasons of procedural consistency, we wish to follow what is already done in the magistrates' courts.

There is another reason, which the House may regard as even more important. This is all connected with the making of Income Tax deductions, which, in certain circumstances, the husband might sometimes have to do. Under the present provisions in the Bill, nearly every payment received by way of attachment, except where the maintenance order is a small maintenance order, will have to be allocated partly towards current payments and partly towards arrears. So we may have a situation where there are different payments arising in different financial years, in which there is sometimes a different standard rate of Income Tax. We are advised that it would cause tremendous confusion if there were the likelihood of older payments not being paid off first so to speak, to clear the way for the calculations on the more recent payments.

Having considered the matter very carefully, we feel that it is right that the earlier payments should be discharged first. It may, in any event, be quite a confusing situation where there are a number of outstanding payments, some related to different financial years and relating to different standard rates of Income Tax; but it would become even more confusing if we did not have the earlier payments discharged first.

Mr. Frederick Lee (Newton)

In principle, we understand and agree with what the hon. and learned Gentleman said, but how does one define which arrears are being paid first? Before a wife can obtain such an order it is necessary that arrears shall have accumulated. Precisely what is the hon. and learned Gentleman suggesting? Let us suppose that a husband has paid off certain arrears as, I take it, the present Amendment would ensure. Would it then be competent for the court to decide that those arrears having been paid off the court could actually discharge the order itself? In what way would the machinery work? For instance, current payments being made following the attachment order, how would the court determine that they were, in fact, payments of arrears which had accumulated from a certain date? I am not in any way opposing the suggestion made by the hon. and learned Gentleman, but for the guidance of the court I think it might be well if the Government gave us a little further enlightenment.

Mr. Renton

Of course, nothing which I say here will be taken as guidance to the courts, because proceedings in Parliament must not be used for the interpretation of Statutes.

I think the situation is a little simpler than the hon. Gentleman has put it. He may have confused two stages. The first stage is where there are arrears arising under the maintenance order itself. There must be at least four weeks of those arrears before an attachment of earnings order can be made at all. The position which I attempted to describe earlier does not arise until after the attachment of earnings order has been made.

Let us assume that up to a certain date all the payments are paid currently and all is well. Then, there may be a series of payments due and a period of failure to pay. Then, the husband may decide to resume payment again. The question is whether, when he resumes payment, he shall be deemed to be discharging the payments which were last due or the payments which were first due.

The Bill at present says that it shall be the payments which were last due, but we are advising the House that it would be better to say that the husband should be deemed to discharge first the payments which were first due and that that will lead to the least confusion.

Mr. Julius Silverman (Birmingham, Aston)

There is still some confusion. We are considering payments by an attachment order to discharge arrears which have accumulated not merely while the order is in force, but formerly. Is that not clear from subsection (2), which states: so as to discharge first any sums for the time being due and unpaid under the related maintenance order"? Therefore, we are dealing not merely with arrears which have accumulated while the order was in force, but arrears which have accumulated beforehand.

Mr. Sydney Silverman (Nelson and Colne)

It may be years before.

Mr. J. Silverman

Yes. That seems to be quite clear from subsection (2), but that was not the impression given by the Joint Under-Secretary.

As I understand it, when courts deal with maintenance orders and there are arrears and an order is made in respect of them, it is the procedure to say that there shall be a total payment—that is to say, the current payments shall be met and, in addition, there shall be a certain amount towards arrears. Suppose that arrears have accumulated against a man who must make a weekly payment of £3. The court may direct him to pay £3 10s. a week, comprising £3 for the current payment and 10s. for arrears. That, I understand, is the existing practice concerning maintenance orders.

Is that practice being altered? Are we now saying that when an attachment order comes into operation we do not use it to pay the current payments until the arrears have been discharged? If so, that is an entirely new procedure and we ought to be told about it. I hope that the Joint Under-Secretary will clear up this matter.

Mr. S. Silverman

My own feeling about the Amendment depends on whether my hon. Friend the Member for Aston (Mr. J. Silverman) is right or wrong in saying that the power would apply—indirectly, possibly, but nevertheless applying—to the arrears under the original maintenance order made by the court. If the Joint Under-Secretary is right in saying that it applies only to arrears after the order under the Bill—the charging order, as it were—had been made, I still would not like it very much, but I would not feel that the points involved were important enough to argue or to raise serious objection against. If, however, my hon. Friend is right in saying that under the Amendment the arrears affected are any arrears under the principal order, no matter when made, I consider that the Amendment is ill-advised. In many of these cases, the arrears may go back many years. Sometimes, they drag on for a long time.

4.45 p.m.

The Joint Under-Secretary appreciates, I am sure, that not all the hard cases with which the Bill is intended to deal are on the one side. There are some hard cases the other way—cases, for instance, of ill-conceived, hasty wartime marriages, in which there has never been any matrimonial home, where there are no children and where neither party intends to resume cohabitation in the full matrimonial sense, but where, nevertheless, under the existing law, the man remains responsible for the maintenance of his wife throughout his life.

In many of those cases, a sense of great injustice, rightly or wrongly, is engendered in the mind of the man, who feels that he is being held up to ransom for no real social purpose. In those cases there have been, as everybody knows, obstinate men who have been willing to suffer any kind of penalty rather than pay. I am not defending the attitude; I am only saying that it is a social problem which is known to many of us who have had anything to do with these matters.

What would be the position if the Amendment is carried? We are applying now a totally new procedure. The Bill is intended to do something that we have never thought it right to do before, and I do not quarrel with that. It would be out of order to quarrel with it, even if I wanted to, at this stage of our proceedings. I should not, however, like to see it applied to arrears which were accumulated in other circumstances many years ago so as to keep the man under continual pressure in this way for matters which both sides may long ago have dispensed with.

There is no discretion under the Amendment. As soon as the charging order is made and payments begin to be collected from the employer, if the Amendment is carried they must, if my hon. Friend is right, be allocated to the earliest arrears under the principal order, no matter under what circumstances those arrears were incurred and no matter how long ago. I feel sure that that would not be a wise thing to do. I agree that it is an unimportant matter in the interpretation of the Amendment given by the Joint Under-Secretary, but if my hon. Friend is right—and I am inclined to think that he is—we should think carefully and long before making the Amendment that the hon. and learned Gentleman proposes.

Mr. Renton

I do not think there is any great difference between us, and I hope that if I may give a yet further explanation I can assure both the hon. Member for Aston (Mr. J. Silverman) and the hon. Member for Nelson and Colne (Mr. S. Silverman). There must first be arrears under a maintenance order before an attachment of earnings order can be made by the court. When the court makes an order for payment by means of attachment of earnings, it must consider the size of the arrears, the extent to which they should be wiped out weekly in future, and the amount that the defendant should pay each week thereafter to maintain his future weekly payments. It will be a matter for the discretion of the court, and there are various factors—

Mr. J. Silverman

Surely, that is not correct. If the Amendment is carried, will not the position be that the court does not decide what payment is made towards the weekly or current order until the arrears have been discharged? The court simply decides upon a weekly payment which has nothing whatever to do with the current order until all the arrears have been discharged.

Mr. Renton

No. At the moment, the court has power to make an order for the discharge of arrears. It must be remembered that we are dealing not only with maintenance orders, but with affiliation orders, and so on. The court has power to make orders for current payments as well. All that we are doing in the Bill is to attach a new enforcement remedy called the attachment of earnings. That enforcement remedy is one which takes into account not only the need to maintain payments in future but also the need to wipe out arrears. However, we are concerned in Clause 13 only with the question of the failure to maintain payments after an attachment of earnings order has been made.

Mr. Lee rose

Mr. Renton

May I just deploy this point? The hon. Gentleman will no doubt have an opportunity to catch your eye, Mr. Deputy-Speaker.

We are concerned here with the order in which payments due are to be wiped out by payment under an attachment of earnings order.

Mr. J. Silverman

Under the maintenance order.

Mr. Renton

Yes. There has to be a maintenance order first before there can be an attachment of earnings order. That is a point which the hon. Gentleman does not seem to have clearly in mind. We are dealing with the payments due after an attachment of earnings order has been made. We say that the earlier payments should be discharged first and the later payments should be discharged later. That is the simplest way to avoid the confusion which might arise over Income Tax deductions. We are comforted by the fact that we are advised by the Justices' Clerks' Society that that is the order followed in the case of maintenance order payments at the moment.

May I introduce another reason for following that procedure. As the hon. Member for Lewisham, North (Mr. MacDermot) will remember very well, it was decided in Clayton's case that this should be the order for the discharge of debts, and in various contexts in the law it has been the order in which debts are deemed to have been discharged for many years past. We think that that is the right system to follow.

Mr. Lee

The hon. and learned Gentleman has spoken about people becoming further in arrears after an attachment order has been made. How does a person get into arrears after an attachment order has been made? I take it that once the attachment order has been made the money will be deducted from wages. Under those circumstances, how does the hon. Gentleman envisage a person getting further into arrears?

Mr. Renton

The court has a discretion with regard to arrears under a maintenance order, just as it has in the making of an attachment order when there are arrears under a maintenance order. That will be a matter for the discretion of the court. Candidly, I do not think that that affects the issue which arises on this Amendment.

Mr. Anthony Greenwood (Rossendale)

With respect to the hon. and learned Gentleman, what is puzzling hon. Gentlemen on this side is how arrears accumulate during the running of an attachment of order.

Mr. Renton

They accumulate through the simple process of the defendant failing to pay the full amount specified in the order.

Mr. Henry Usborne (Birmingham, Yardley)

I certainly do not understand how a defendant can fail to maintain when he does not have to make the payments himself. The whole purpose of the attachment order is to enable the employer to attach the income. Therefore, the defendant does not even touch it.

Mr. Renton

I sympathise with the hon. Gentleman, who was not present during the Committee stage of the Bill, although most of the hon. Members who have spoken on this Amendment, except the hon. Member for Nelson and Colne, were present. Those of us who were there have a language of our own about this matter, which is most complicated. In spite of the fact that it is the employer who has the obligation to maintain the payments for the employee, the employer, on the employee's behalf, can fall into arrears through the employee being, for example, put on short time work or being out of employment for a short time.

Amendment agreed to.

Mr. Renton

I beg to move, in page 12, line 43, to leave out "an earlier" and insert "a later".

We have discussed this Amendment with the previous Amendment. It is consequential.

Amendment agreed to.