HC Deb 25 March 1958 vol 585 cc261-70
Mr. Renton

I beg to move, in page 15, line 44, at the end to insert: (5) In subsection (3) of section fifty-two of the Magistrates' Courts Act, 1952 (which provides for the clerk through whom payments under a magistrates' court order are required to be made to proceed in his own name for the recovery of arrears under the order) for the words "Where an order under subsection (1) of this section requires the payments to be made weekly" there shall be substituted the words "Where periodical payments under an order of any court are required to be paid to or through the clerk of a magistrates' court"; and in subsection (4) of that section (which provides that nothing in that section shall affect any right of a person to proceed in his own name for the recovery of sums payable on his behalf under any order under subsection (1) of that section) for the words "any order under subsection (1) of this section" there shall be substituted the words "an order Of any court This proposal deals with a rather technical point. It arises in this way. Section 52 (3) of the Magistrates' Courts Act, 1952, requires the clerk of a magistrates' court to whom payments are made under a maintenance order to proceed in his own name for the recovery of the arrears if the wife asks him to do so and if he does not think that it is unreasonable to do so. I mentioned on a previous Amendment that that is the practice. It is desirable for the purposes of the Bill, which aims at reciprocality of enforcement procedures, that this requirement should apply equally to High Court and county court orders registered in a magistrates' court under Part I of the Bill.

As Section 52 is at the moment drafted in terms of orders for weekly payments it could frequently not apply to High Court maintenance orders, which are generally for monthly payments. Therefore, the Amendment seeks to remove the limitation in Section 52 of the 1952 Act to orders for weekly payments, and to make it explicit that the subsection in that section applies to the orders of any court which are payable through the clerk of a magistrates' court. Therefore, it dovetails that existing procedure with the procedure that we are contemplating under the Bill.

Amendment agreed to.

Mr. John Parker (Dagenham)

I beg to move, in page 15, line 44, at end to 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". In view of the undertaking given by my hon. Friend the Member for Lewisham, North (Mr. MacDermot), I do not propose to develop the argument with regard to this matter at great length.

Many of us feel strongly that a subsection of this kind ought to be inserted in the Bill so as to bring the practice of magistrates' courts into line with that of other courts, particularly in view of the Amendment which was accepted in principle earlier about the possibility of imprisonment being limited to six weeks. Our point is that the imprisonment should not wipe out the obligation to pay in magistrates' courts. We think that there is a strong case for not wiping out the obligation to pay.

If a provision of this kind is included in the Bill, a great many people would not get to the state where it is necessary to order payment to be made under the Bill. We hope, therefore, that the inclusion of the subsection will be possible in another place if it is not possible for the Government to accept it in its present form.

Mr. Charles Royle (Salford, West)

I beg to second the Amendment.

I should like to thank the Joint Under-Secretary of State for the assurances that he gave on Second Reading. I should like briefly to stress the necessity for the Amendment. Frankly, my hon. Friend the Member for Dagenham (Mr. Parker) and myself are using this opportunity, which may not arise again for a long time, to ask the House to consider something of this nature.

5.0 p.m.

I want to make it clear that the main aim of the Amendment is to prevent men from being sent to prison. The Home Secretary and his predecessors have insisted constantly that in these days when many people are serving short-term sentences, when there are overcrowded cells and so on, it is important not to send people to prison if possible. I am confident that this Amendment would have that result.

In the Criminal Justice Act, 1948, justices were empowered to suspend committal orders. Under the Act they can commit a man to prison and suspend the committal order as long as maintenance payments are met. Experience shows that this line of approach has ensured the payment of maintenance orders. Everyone concerned with this work knows that a prison sentence hanging over a man's head has the desired effect. I believe, therefore, that if the law is brought up to date and magistrates' courts can do exactly the same as the higher courts in these matters, men will pay rather than go to jail. On the other hand, I believe that many today are prepared to take the risk of being committed to prison because this will wipe out the arrears.

So I am confident that if this Amendment is accepted it will prevent men going to prison in future. I will go even one step further and say that if the Bill is amended in this way the operation of attachment will not be necessary in many cases. I would not be associated with this proposal if I did not feel that as a result fewer people would go to prison. I hope, therefore, that the hon. and learned Gentleman will be able to tell us that the Amendment will be accepted by the Government.

Mrs. Lena Jeger (Holborn and St. Pancras, South)

I rise to support this Amendment. I agree with my hon. Friend that there is a good chance that, by accepting it, we shall reduce the number of men going to prison. As the raw stands, there are many circumstances in which it is a good bargain for a man to serve a prison sentence of six weeks if thereby he can wipe out as much as £120.

Recently, a case was brought to my notice in which there were arrears of £120 for the maintenance of children. The court gave the man concerned a six weeks' sentence. That may be unpleasant for him, but at the end of that time, having been kept at the expense of the community, he comes out with the debt expunged. I suggest that from the point of view of the deserted wife or the unmarried mother, in whose favour an affiliation order has been made, it is an advantage that the debt should remain and that the man should be liable to discharge it when he leaves prison.

The present system is unfair to the women concerned, and it puts an unfair temptation in the way of the weaker sex by allowing men to think that by serving a short sentence in prison they discharge their debt to the women concerned at the expense of the community.

Mr. Victor Yates (Birmingham, Ladywood)

I applaud the sentiments of my hon. Friends who have spoken in support of the Amendment, since their principal motive is to keep men out of prison. In that respect, I am anxious to consider carefully any Amendment which would have such an effect, but when we discussed this in Committee all the arguments were against such an Amendment, except those of my hon. Friend the Member for Dagenham (Mr. Parker), who moved a similar Amendment then. So I want to ask one or two questions about the meaning of this Amendment.

It would be unfortunate if we were to embark upon a policy that would be responsible for continuing to put men in prison. My hon. Friend the Member for Newton (Mr. Lee) and I expressed some anxiety about this upstairs. My hon. Friends say that if the Amendment were accepted it would prevent men from being sent to prison. I have not a magistrate's experience, but if the object of the Bill is to attach wages, surely that is the principle which will keep men out of prison, and if magistrates have the right to determine that wages shall be attached, the question of imprisonment does not arise. If there were a lot of people roaming the country wilfully refusing to recognise their obligations, although having the money to do so, we would have to consider the position seriously. As far as I can see, however, the majority of people who might be in this position would not have a regular job and therefore would have no means of payment.

I agree that this principle is accepted for Scotland, but in England we have not accepted the principle of the arrestment of income for all civil debts. There is also a difference in the length of prison sentences between Scotland and England. So I want to know what would be the term of imprisonment for, say, contempt of court for not complying with a maintenance order because, if the man concerned has an income or wages, those wages or that income could be arrested and the question of imprisonment would not arise.

In the Report of the Advisory Council on the Treatment of Offenders, which was published by the Home Office in 1957, there is a reference to Scotland and to the Scottish system. The Report says: Imprisonment I can still be imposed if a husband fails to pay maintenance and the court is satisfied that the failure is wilful in the sense that the man has the means to pay but has not paid. Imprisonment does not, however, extinguish the debt, and a man may be committed in respect of the same debt at intervals of not less than six months. I take it that a prisoner in Scotland can be imprisoned over and over again. Would that sort of construction be placed on an Amendment of this kind?

The Report also states: We have had inquiries made to find out how many of those men now committed to prison in this country for failure to make maintenance payments might be kept out of prison by a system of attachment of wages. There is an interesting appendix attached to the Report giving information obtained from questionnaires sent to the governors of Brixton, Leicester, Preston and Swansea prisons in respect of prisoners committed to their prisons during the two months beginning 16th July, 1956, for nonpayment of bastardy arrears, wife maintenance and children's maintenance. These people come into various categories, but only one prefers prison to making the payment. Who are these people who are said to prefer prison to making the payments?

Mrs. L. Jeger

They are all the men who say that they would rather go to prison than give the "so-and-so" a penny.

Mr. Yates

There is power in the Bill to arrest wages, and so there is no need for a man to go to prison. I cannot see that in many cases men will prefer to go to prison to attachment of wages.

In Committee, I mentioned a case with which I was connected. I took up the case of a man who had been to prison five times. On the last occasion when he appeared before the court, I wrote to the court asking what was the use of sending the man to prison again when his income was too low to make the payments. On that occasion, the court decided to reconsider the matter and did not send him to prison.

If the Minister has evidence about a large number of cases, what kind of cases are they, and will terms of imprisonment he altered from the present terms if, after a man has been to prison, he is still liable for the debt? I cannot see how those men with whom I have come into contact who have been to prison for heavy arrears, but who have only a small income, will be able to pay the arrears. They will still have to go back to prison. If that is to be avoided by regulations, I shall be satisfied. I am convinced that by its very nature the Bill will keep a large number of men from going to prison by the use of powers to arrest wages. If the wages are not arrested, some safeguard is needed so that we do not have a cat-and-mouse game of a man going in and out of prison, a process which savours of several doses of punishment for the one crime.

Mr. George Isaacs (Southwark)

I do not know what the attitude of the Government will be, or whether I am pushing at an open door.

The Secretary of State for the Home Department and Lord Privy Seal (Mr. R. A. Butler)

For the enlightenment of the House, I intervene to say that we have already given an undertaking that this matter will be fully covered by an examination which we are to make before the Bill goes to another place. The contribution of the right hon. Gentleman and those of his hon. Friends will simply aid us in the examination which we are to make. The right hon. Gentleman is right in saying that he is pushing at an open door, but we shall be enlightened by his observations.

5.15 p.m.

Mr. Isaacs

Those remarks may clear up the doubts of my hon. Friend the Member for Ladywood (Mr. V. Yates).

I am perfectly sure that committing an offender to prison but suspending the sentence pending the continuation of payments has been of great value and has kept many men out of prison. However, there are occasions on which the Bill will not help. In the area which I have been privileged to serve for many years, there are many men who are employed as jobbing gardeners or as window cleaners, or in going round the streets selling logs. They have no regular employment, and it would be impossible to attach their wages. I know of many cases where the man flatly refuses to pay anything towards the maintenance of a wife and children and who will calmly say that Public Assistance should look after wives and children. It is no good sending those men to prison, because they look upon prison as a nice holiday; a prison sentence does not worry them. That is the only comment I have to make, if I am pushing at an open door, and I hope that the Joint Under-Secretary can remove some of the apprehensions of my hon. Friend the Member for Ladywood.

Mr. Renton

I should make it clear in support of my right hon. Friend that earlier I gave an undertaking, which is to be found in c. 567 of the OFFICIAL REPORT of 12th March, that after completion of our discussions with judicial and other bodies, which have to take place, we will put down for consideration in another place Amendments to cover the points which have been made.

The Amendment assimilates magistrates' court procedure to that which already prevails in the High Court and county court, the effect being that committal to prison does not wipe out arrears. An earlier Amendment was to the effect that the maximum period of imprisonment in respect of magistrates' courts committals should be the same as in the High Court and county court, namely, six weeks. That answers the first part of what the hon. Member for Ladywood (Mr. V. Yates) had to say.

I wish to extend the undertaking which has already been given. First, we are grateful for the views which have been put before the House today, as well as for those expressed in Committee, and we shall consider them very carefully in the discussions which are still taking place and in the framing of suitable Amendments to put down in another place. We have specially in mind the point raised by the hon. Member for Ladywood as to the possibility of a man going to prison several times in respect of the same debt, and the danger of our playing a cat-and-mouse game with him. We want to avoid that situation if possible.

As I tried to make clear on several occasions in Committee, all the procedures with which we are dealing, and on top of which we are imposing the procedure of Part II of the Bill, are most complicated. When we considered these three points we found them unexpectedly difficult, but we have not allowed that fact to deter us. We are determined to try to find an answer to the three problems. With that further statement, I hope that the House will realise that our intentions are good and that we shall do all that we possibly can. In any event, we are bound by our undertakings.

Mr. Anthony Greenwood

It would be discourteous if I did not thank the hon. and learned Member for what he has just said, and also for the assurance which he gave us upon a previous occasion. It has certainly gone a long way to provide what I want to see incorporated in the Bill, and I hope that it will have allayed the doubts expressed by my hon. Friend the Member for Ladywood (Mr. V. Yates). For some time many of us have resented the situation to which my hon. Friend the Member for Holborn and St. Pancras, South (Mrs. L. Jeger) referred, in which it is possible for a man to run up a tremendous bill for arrears and then wipe it off by going to prison for a comparatively short period. That is unfair to the women and children concerned, and it is a wholly unwarranted charge upon public funds.

It means the existence of a positive incentive to people to go to prison instead of the disincentive which the Bill aims to provide. I am glad that the persistence of my hon. Friends has been rewarded, and I hope that the review which the hon. and learned Gentleman will give to the matter will produce a satisfactory result in another place.

Mr. Niall MacDermot (Lewisham, North)

I should be grateful for an assurance that there is no intention to resile from the undertaking given on the last occasion by the words which the Home Secretary used just now, namely, that the matter would be examined. I understand from what the hon. and learned Gentleman has just said that it is definitely intended to put down Amendments covering this point when the procedural difficulties had been overcome and the Government are satisfied as to the proper form that such Amendments should take.

As for the point raised by my hon. Friend the Member for Ladywood (Mr. V. Yates) about preventing a person being sent to prison twice for the same debt, I would draw the attention of the Minister to the very simple rule which covers this point and which is already part of the county court rules. At present, under the judgment summons procedures—under the Debtors Act—where a person is committed to prison by a county court judge the rules provide that he cannot be committed a second time in respect of the same debt. All that is required in order to cover my hon. Friend's point is for a similar rule to be made for the magistrates' courts, or for the substance of the rule to be incorporated in the Minister's Amendment in the House of Lords.

The Amendment goes a good way towards removing one of the anachronisms which still exists in this branch of the law. In the old days, it used to be common law that when a man was imprisoned for debt the imprisonment wiped out the arrears. The reason for that was explained in the picturesque language of an old case as being that as the creditor had had the highest satisfaction known to the law, namely, the satisfaction of having the debtor imprisoned, and he could no longer avail himself of any remedy of the court. That is a most old-fashioned approach to imprisonment. In these days we do not imprison people for those purposes. If we use imprisonment at all in this respect nowadays it is as a last resort, in order to enforce payment.

The Amendment would bring the procedure in magistrates' courts into line with that in the High Court and county courts in respect of maintenance orders, where it is used solely as a method of enforcement, and in no way as a satisfaction of the debt.

Mr. Parker

In view of the undertaking given by the hon. and learned Member, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.