ADMINISTRATION OF JUSTICE BILL [Lords]

HC Deb 14 May 1970 vol 801 cc1603-46

Order read for resuming adjourned debate on Amendment proposed [4th May], on Consideration of the Bill, as amended (in the Standing Committee).

Which Amendment was: In page 4, line 17, to leave out subsection (4).

Mr. Speaker

New Amendments have been put on the Notice Paper since we last debated the Bill. I have selected Amendment No. 58, with which I suggest we take Amendments Nos. 59, 60, 61 and 62, and Amendment No. 63, which we will discuss with Amendment No. 22.

Question again proposed,That the Amendment be made.

11.8 p.m.

The Attorney-General (Sir Elwyn Jones)

This is a purely technical and consequential Amendment necessitated by the adoption of the Amendment which deleted subsection (3) of Clause 3.

Amendment agreed to.

Clause 15

EFFECT AND CONTENTS OF ORDER

The Attorney-General

I beg to move Amendment No. 9, in line 5, leave out from ' Act ' to end of line 6.

Mr. Speaker

With this Amendment it will be convenient to debate Amendment No. 28.

Amendment agreed to.

Mr. Speaker

The next Amendment is No. 12, with which I have suggested we should take Amendments Nos. 13 and 14.

Mr. Ian Percival (Southport)

You have just said, Mr. Speaker, that you intended to call Amendment No. 58. Since Amendments Nos. 59, 60, 61 and 62 are consequential upon Amendment No. 58, I assume that they will be called. It would not be the wish of my right hon. Friend or myself to move Amendments Nos. 12, 13 and 14, as they are alternatives.

Would it be in accordance with your wishes, Mr. Deputy Speaker, if I were now to move Amendment No. 58, with which Amendments Nos. 59, 60, 61 and 62 are to be discussed?

Mr. Deputy Speaker(Mr. Sydney Irving)

I am sure that that would be most acceptable to the House.

Clause 17

INTERRELATION WITH ALTERNATIVE

REMEDIES OPEN TO CREDITOR

Mr. Percival

I beg to move Amendment No. 58, in page 14, line 2, leave out from ' debt ' to ' no ' in line 7 and insert:

1. (a) no order or warrant of commitment shall be issued in consequence of any proceedings for the enforcement of the debt begun before the making of the attachment of earnings order and
2. (b) so long as the order is in force.

I move the Amendment with a degree of confidence not normally felt, because the Attorney-General has been good enough to say that he accepts its principle. Since all the Amendments which we are discussing have been drafted by parliamentary draftsmen, I apprehend that no point will be taken upon the drafting of them. Therefore, both as to principle and as to drafting we are in a more favourable situation than usual.

The short history of these Amendments is that in Committee we proposed Amendments to subsection (2) of Clause 17, as it now is, but they were not acceptable to the Government. We failed to gain the day on that occasion, having been met with the reply from the Attorney-General: …I must resist the hon. and learned Gentleman's blandishments. It seems to me that the only practical course where an attachment order is in existence, in order to avoid the kind of complications that I mentioned in my earlier submissions to the Committee, is for the creditor first to seek the discharge of the attachment order before he seeks to go to the remedies of committal or execution which would be open to him. I do not think any other course would be prudent."— [OFFICIAL REPORT,Standing CommitteeG, 9th April. 1970; c. 194.] That was the view of the Attorney-General at the time.

Believing at that time that we had little chance of persuading him to alter that view, my right hon. and learned Friend the Member for Epsom (Sir P. Rawlinson) and I tabled an Amendment the effect of which would have been to bring subsection (1) into line with subsection (2). I am happy to tell the House that a few days ago the Attorney-General was kind and generous enough to inform me that the Government had reconsidered the matter and, instead of disputing the issue with us as to whether subsection (1) should be brought into line with subsection (2), were prepared to recommend that subsection (2) should be brought into line with subsection (1).

On that important issue of principle, the Attorney-General and the Opposition spokesmen were happy to agree. The right hon. and learned Gentleman was generous enough to say that, that measure of agreement having been reached, he would invite those who assist him, the parliamentary draftsmen, to give effect to this intention and table Amendments in the names of my right hon. and learned Friend and myself.

Because I think that the drafting of Amendments Nos. 58, 59 and 60 gives effect to that intention, and amends subsection (2) so as to bring it into line with subsection (1) and brings about a situation in which it is not necessary first to obtain the discharge of an order before proceeding in respect of any other remedy, produces a situation where, with the leave of the court, a judgment debtor may proceed at least to attempt to enforce other remedies without obtaining a discharge of the attachment order, I am happy to commend these Amendments to the House, in the knowledge that they will be endorsed by the Attorney-General.

I believe that Amendments Nos. 61 and 62 are purely consequential.

The Attorney-General

Clause 17 deals with the inter-relation of alternative remedies open to the creditor. The Amendments are helpful to achieve the purpose of the Clause. I am grateful to the hon. and learned Member for the industry which he has applied to this technical problem, and I am happy to agree to the Amendments.

Amendment agreed to.

Further Amendments made:No. 59, in page 14, line 9, at end insert:

(3) An attachment of earnings order made to secure the payment of a judgment debt shall cease to have effect on the making of an order of commitment or the issue of a warrant of commitment for the enforcement of the debt.

No. 60, in page 14, line 13, at end insert:

(4) Where an attachment of earnings order ceases to have effect under this section, the proper officer of the prescribed court shall give notice of the cessation to the person to whom the order was directed.—[Mr. Percival.]

Clause 18

VARIATION, LAPSE AND DISCHARGE

OF ORDERS

11.15 p.m.

The Attorney-General

I beg to move Amendment No. 16, in page 14, line 41, after deducted ' insert at any time '.

Mr. Deputy Speaker

With this Amendment it will be convenient to take Amendment No. 15, in page 14, line 39,

leave out from ' shall ' to ' unless ' in line 42 and insert: ' for the purposes of compliance therewith lapse (except as regards deductions from earnings paid after the cesser and payment to the collecting officer of amounts deducted whether before or after the cesser)'. and Government Amendment No. 17.

The Attorney-General: Clause 18(4) provides that: Where an attachment of earnings order has been made and the person to whom it is directed ceases to have the debtor in his employment, the order shall lapse…unless and until the court again directs it to a person (whether the same as before or another) who appears to the court to have the debtor in his employment. Clause 18(5) provides that Where an order lapses under subsection (4) above it shall not be treated, for the purposes of this Act other than those of the subsection, as ceasing to be in force. It was suggested in Committee that as subsection (4) does not in terms refer to any purposes, it is difficult to know in what respects a lapsed order is to be treated, by virtue of subsection (5), as being still in force.

Amendment No. 15 seeks to meet the point by providing that on the cesser of the debtor's employment the attachment order shall lapse for the purposes of compliance therewith. I submit, therefore, that the Amendment is unnecessary, but the objects sought by it are covered by Amendments Nos. 16 and 17.

Sir Peter Rawlinson (Epsom)

I think that undoubtedly what the right hon. and learned Gentleman has said is correct and I am happy to accept his proposal.

This is an absurd time at which the Bill and its complications, which will affect many people, should have to be debated by the House. It is of an extremely complicated and technical nature. I believe that the House is in for a great deal of criticism about the legislation that it passes and the difficulty of its interpretation by those who have to be able to understand it. At least we might have on record that it is at this late hour that we discussed these complex and complicated matters. I regret that the Government could not have found another time for us to discuss the Bill.

Nevertheless, what the right hon. and learned Gentleman has proposed in Amendments Nos. 16 and 17 does, in effect, carry out what we are seeking to do, which is to try to make this matter more clear, enforceable and workable, so that those who have to carry out, execute and interpret hereafter the law passed in this House can the more easily understand what we are about.

Mr. John Wells (Maidstone)

As my right hon. and learned Friend said, we are discussing the Bill at a strange time. As a layman, may I ask the Attorney-General to clarify a little further what exactly " at any time " means. Does " any time " mean any time?

The Attorney-General

It means precisely what it says—at any time.

Amendment agreed to.

Further Amendment made:No. 17, in page 15, line 1, leave out subsection (5) and insert—

(5) The lapse of an order under subsection (4) above shall not prevent its being treated as remaining in force for other purposes.

Mr. Deputy Speaker

Amendment No. 61. The Question is that the Amendment be made. Those in favour say, " Aye "; to the contrary, " No."

Mr. John Wells

No.

Mr. Deputy Speaker

Amendment No. 61 was discussed with Amendment No. 58. It was an Amendment by the hon. Gentleman's hon. and learned Friend the Member for Southport (Mr. Percival). It has been proposed and put to the House and it is in order.

Amendment made:No. 61, in page 15, line 7, after etc.) ', insert ' or under section 17 of this Act '.—[Mr. Percival.]

Mr. Percival

I beg to move Amendment No. 18, in page 15, line 9, leave out from not ' to first in ' in line 10.

Mr. Deputy Speaker

With this Amendment we are to take Amendment No. 19, in page 15. line 13 at end insert: ' incur any liability other than a liability to repay to his employee such sums if any as may have been deducted by him in respect of periods subsequent to the date on which the order ceased to have effect or the date as from or upon which the discharge of the said order became effective '.

Mr. Percival

I echo what was said by my right hon. and learned Friend the Member for Epsom (Sir P. Rawlinson). This is an extraordinary time of day at which to discuss things which, to hon. Members, may seem remote and even perhaps a little difficult, but the minute the Bill becomes law these things will be of real interest to the people about whom we are talking.

Curious as the hour is for discussing this sort of thing, and whatever the reason for us having to discuss it at this hour—whether it is to punish us for having 105 Members here, or to punish the other side for having had only 104 Members here—it behoves us to discuss it with something less than the levity with which I moved the first Amendment. I felt in that instance that I could indulge in a little levity because I knew that the Amendments were to be accepted. I am not so confident about these. In fact, I have substantial reason to believe that their fate may be different.

Amendment No. 18 is a paving Amendment. The whole point of the Amendment is to clarify what will happen if an order is discharged, but before notice has been given to the employer that it has been discharged he has deducted from his employee's wages perhaps two or three weeks' deductions. This may not matter very much to us in this House, but to the employee who has had these sums deducted it might matter a great deal.

The question is what is to happen about those deductions? In Committee, the Attorney-General, at c. 207, first agreed with me that it would be desirable that in those circumstances the employer should be under a liability to pay that money back to the employee, and I think that that is right. I do not think it is sufficient that that money may finally find its way back to the employee. It is important that it should find its way back to the employee quickly. It may mean very little to the employer, or to anybody else, but it may mean a lot to the employee whether he gets the money back this week or in six weeks' time; whether he gets it back from his employer, or whether he has to go to the court to get it back.

Though I am a lawyer with a vested interest in the maximum number of applications to the court, curiously enough, like all other lawyers, I spend a lot of my time ensuring that the number of applications made to the courts is kept to the minimum. I think that we lawyers can fairly say that we spend a lot of our time doing that because we know better than most how much time and money can be wasted in applications which would be better avoided if there is any way of avoiding them.

In Committee, the Attorney-General professed to agree with that objective, but then he said: I have just had my attention drawn to what is contemplated. The employer must pay the money into court, and he is not then liable to repay to the man. The remedy for the man then lies with the court, apparently, and he must seek his remedy there. That seems to be the position. The right hon. and learned Gentleman then generously went on to say: It seems to me to be a somewhat cumbersome arrangement, if I may say so, and perhaps I ought to look at it, and see whether we can eliminate the necessity of continuing references to the court. Whether there is some means by which we can eliminate yet another stage of court reference, I do not know. I should certainly like to examine the possibility."—[OFFICIAL REPORT, Standing Committee G,9th April, 1970; c. 208.1 The purpose of the Amendments is purely and simply to make certain that that silly situation does not arise. If an attachment of earnings order is discharged because the payments have been completed, but before the employer gets notice of the discharge he deducts another week's or two or three weeks' deductions, instead of paying that money into court and the man having to go to the court and get it—less deductions all along the way, because there have to be deductions if someone goes through a cumbersome procedure like that—the employer should be under a liability to repay that money to his employee direct, without the nonsense of going to court.

I apprehend that the Attorney-General will say that the Amendment is not necessary to secure the objective. I would only point out that if the Amendment were accepted there would be no room for doubt. It would be quite clear that the money was to be paid straight back to the employee. For that reason, whether it is necessary or not, and whether the same result might be achieved or not, under the Bill as it stands—and late as the hour is—I urge upon the Government the desirability of making it clear beyond a peradventure that in the circumstances I have outlined we shall not be faced within a few months with the stupid situation of money being paid into court and the debtor having to go to court to get it out again, with costs all along the line.

It may be a detail, but this kind of thing brings the law into disrepute, and the one thing that our society cannot afford is to create more and more opportunities for bringing the law into disrepute. Whether the Amendment is necessary or not, could not we have it, for the avoidance of any doubt, and so as to make it clear that such a stupid situation as I have mentioned shall not arise?

The Attorney-General

We have looked at this problem carefully and sympathetically, but we have come to the conclusion that the Amendments are not necessary and would create difficult complications. As the House has been told, subsection (6) provides that where an attachment of earnings order ceases to have effect or is discharged the employer who is responsible for collecting the money shall not incur any liability in consequence of his treating the order as still in force before the expiration of seven days from the service on him of a notice of cesser or discharge. The effect of the Amendments would be to make the employer liable, notwithstanding this provision, to repay to the debtor any sums which the employer may have deducted from his wages after the cesser or discharge.

The possibility envisaged by the Amendment is seldom likely to arise. In practice, notice of the cesser or discharge of an attachment order will be sent to the employer within a day or so after the cesser or discharge takes place. It is, therefore, very unlikely that the employer will have made a deduction from the debtor's wages between the date of the cesser or discharge and the date on which he receives notice.

It may take him a few days to give effect to the notice, particularly if his accounts are computerised, or the debtor is employed at a branch office. In the meantime, a deduction may be made from the debtor's wages which is no longer authorised by a subsisting order; but the whole point of giving the employer seven days' grace is to relieve him of responsibility for consequences which he has no practical means of avoiding.

The employer is not obliged to treat the attachment order as still subsisting after its cesser or discharge. If he subsequently makes a deduction, he need not pay the money to the collecting officer. He can, if he likes, repay the money to the debtor or his employer. It is likely that in this rare event that is what he would do. But he ought not to be obliged to do so. Just as it may be impracticable for him, during the period of seven days' grace, to cancel the arrangements he has made for making deductions from the debtor's wages, so it may be impracticable for him to intercept the money before it is paid over to the collecting officer.

This does not mean, of course, that the debtor will suffer any loss. On receipt of the money, the collecting officer, if it goes to the court, must of course repay it to the debtor if it was deducted from his wages after the cesser or discharge of the attachment order. Administrative arrangements will be made for the collecting officer to send the money to the debtor without his having to make any formal request, so there is no question of his having to go back to the court with a duplication of court proceedings. We have considered this carefully and we feel that what is provided for is the most practical arrangement.

11.30 p.m.

Mr. Reginald Eyre (Birmingham, Hall Green)

Having listened to the right hon. and learned Gentleman's explanation very carefully, I feel that he is placing undue reliance on the ability of the county courts, especially in crowded cities like Birmingham, to deal expeditiously with thousands of matters of this kind. In my experience, county courts are often days behind in sending out notices in routine matters, so, in a great number of cases, difficulties of this kind will arise.

The Attorney-General said that, in the event of a payment being made, the court will, of its own volition, refund to the man the money due to him, but this again, with respect, puts an unnecessary strain on the machinery of the court. The man may have to wait a considerable time for this small sum to be reimbursed and go through the machinery of the court. He could be seriously inconvenienced. These are small sums to us, but they could be important to the man concerned.

Surely it would be much more efficient to accept the Amendment and allow the employer to reimburse this sum. Why involve everyone in this complicated machinery and these extra accounting items in the county court? It is making a demand on the machine which it cannot satisfy. Surely it would be better to give way and accept the practicability of my hon. and learned Friend's suggestion.

The Attorney-General

The problem is to relieve employers of impossible burdens. Attachment of earnings already places considerable burdens on them, and to compel them to do this in seven days as a duty when the machinery of computerisation, and so on, may make it impossible creates practical difficulties in regard to a situation which we think will rarely arise.

We have gone into this carefully with the court authorities and we believe that it would put an intolerable burden on them. Accordingly, I hope that the House will accept the reasonableness of what is proposed.

Mr. William Wilson (Coventry, South)

My right hon. and learned Friend will know, from the experience of his office, that, in relation to attachment of earnings orders in the magistrates' courts, this problem has arisen already. If there is a real problem, as hon. Members opposite suggest, one would have thought that it would have shown up by now in this case. Has that point been investigated?

The Attorney-General

There is no evidence of any difficulty in the working of attachment orders in relation to maintenance matters creating the kind of worry which concerns hon. Gentlemen opposite. I am grateful to my hon. Friend for that intervention.

Tom Driberg (Barking)

I was glad to notice that my right hon. and learned Friend does not share the devotion of the Ministry of Technology to computers, and that he realises that computerisation slows everything up and does not speed things at all, and that things are done much more accurately in old-fashioned handwriting than in any other way.

However, I was a little concerned when I thought that I heard him say, at some point in this—to us laymen—slightly obscure process which he has been arguing about which the mellifluous Front Bench spokesman of the Opposition, that something would be done in one day. Does he really think that anything to do with the law or the courts would be forwarded, even by 5d. post, in one day or even in two or three?

The Attorney-General

I said that the contingency of the matter coming before the courts—that is, where there has been an attachment of earnings taking away, say, some aspect of a week's pay—would be extremely rare. Generally speaking, an employer would be more likely to immediately pay back the money to his employee. After all, he would no doubt wish to keep on good terms with that employee.

We are, therefore, in the realm of difficulties that are not likely to arise, and as the court will be holding money which it is its duty to pay over, it will wish to do that quickly. There is a good record in this sort of matter.

Mr. Percival

We often hear used in this House the phrase, " We are in the realm of difficulties that are not likely to arise," but often, a few months after its use, we are either being concerned in those difficulties or seeing them reported in the newspapers. The sole purpose of the Amendment is to ensure that those difficulties do not arise. I am happy to hear the right hon. and learned Gentleman say they are not likely to arise, but I am not entirely convinced by his comments.

My hon. Friends, not being in power, are not really in a position to deal with such technicalities. Responsibility in this matter must rest with the Government and, on purely technical matters like this, we must accept the advice of the Attorney-General. I hope that he is right, because the last thing we want to see is litigation or difficulties arising which could have been avoided. I therefore beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Amendment made:No. 62, in page 15, line 12, after ' 9(2)% insert or section 17 '.—[Sir P. Rawlinson.]

Clause 23

CONSOLIDATED ORDERS

Mr. Deputy Speaker

I have further considered the representations made by the hon. and learned Member for Southport (Mr. Percival) about Amendment No. 63. Although he has not put it on his list of selected Amendments, Mr. Speaker has selected that Amendment; and as it is related to Amendment No. 22, I proposed to call the hon. and learned Member for Southport to move Amendment No. 63, with which it will be in order to discuss Amendment No. 22, in page 18, line 43, at end insert:

(e) for enabling a creditor to apply to either of the aforesaid courts to exercise the aforesaid powers or any of them.

Mr. Percival

I am obliged, Mr. Deputy Speaker.

I beg to move Amendment No. 63 in page 18, line 32, at end insert—

(c) for the cases in which any power exercisable under this section or the rules may be exercised by a court of its own motion or on the application of a prescribed person.

This is another Amendment which I move with an unusual degree of confidence because the Attorney-General has been good enough to indicate to me that it would be acceptable, whereas Amendment No. 22 would not. Indeed, Amendment No. 63 has been drafted by parliamentary draftsmen, so that from both points of view, as with Amendments Nos. 58, 59 and 60, I have confidence about the outcome of my efforts on this occasion.

We discussed in Committee in some detail the question to which the Amendment relates which is that of consolidating orders and the possible rights of an employer or creditor to apply for the court to exercise the powers which it will have under the Clause, which was added as a new Clause in Committee.

Amendment No. 63 is far better than Amendment No. 22 in that it is much wider and enables the Government, by rules, to provide for all the cases we had in mind when we discussed the matter in Committee. As I shall later be critical of the Government and the Attorney-General, I wish to express my appreciation to them for their assistance in this matter, which has led to the substitution of Amendment No. 63 for, and which is a far better proposal than, Amendment No. 22.

The Attorney-General

Again, I am most happy to accept the Amendment moved by the hon. and learned Member for Southport (Mr. Percival), and, again, I thank him for his assistance in the matter. The Amendment enables rules to provide for the power to make a consolidated attachment order or any other power conferred by the rules to be exercised not only by a court of its own motion but on the application of a prescribed person, be he employer or credi tor. It adds a useful provision to the Bill and I give it my support.

Mr. Robert Cooke (Bristol, West)

I wonder whether the Attorney-General can explain to a mere layman who has had some experience of this matter as a private citizen whether the provisions which we are now asked to support will make it easier—or, indeed, possible—for an injured party, who is awarded restitution in a magistrates' court from those who have injured him, to receive any moneys from the people who were convicted of the crime which has injured him.

I understand that if one is awarded restitution by the magistrates, the chances of one's actually getting anything from the people who have injured one are fairly remote, unless one proceeds by means of private or civil action on one's own behalf. Will what we are now asked to support make it any easier for the courts to ensure that, having awarded a citizen a sum in restitution, he gets something back from the person who has injured him?

The Attorney-General

The Clause provides for consolidating attachment orders. If there were an attachment order which had applied to a restitution which was ordered by the magistrates' court, the Clause certainly assists in enabling consolidation to take place, avoiding a scramble by the competitors for a limited amount of money that might exist on the part of the debtor. To that extent, it might be useful.

Mr. Robert Cooke

I understand that an attachment order is not automatic in the case of an award of restitution. How would the citizen proceed to get an attachment order to make sure that he got something?

The Attorney-General

He would have to go to the court to apply for an attachment order. He would, first, presumably, try to recover the amount that the court had ordered should be paid by restitution through the usual means, by letter, through solicitors. If he failed, instead of the present system of a threat of imprisonment in respect of the matter, he would have to go to the court for an attachment order to execute. If there was any money in the " kitty " he would get it, but if other attachment orders had been made against the defendant in the particular case, he would have to take his share with the other creditors.

Amendment agreed to.

The Attorney-General

I beg to move Amendment No. 21, in page 18, line 38, leave out from excluding ' to end of line 43 and insert: ' provisions of this Part of this Act, section 9 or 20 of the Act of 1958 or Part III of the Act of 1952, but only so far as may be necessary or expedient for securing conformity with the operation of rules made by virtue of paragraphs (a) to (c) of this subsection,'. In the debate on Clause 23, members of the Committee expressed concern at the powers which were to be given to the rule-making authorities under subsection (3)(d) to modify or exclude from the provisions of the Bill the Maintenance Orders Act, 1958, and Part III of the Magistrates' Courts Act, 1952. It was suggested that that was not a proper use of the rule-making power. I undertook to consider the point, and the Amendment is the result of that further consideration.

The Amendment differs from the wording at present in the Bill in that it excludes all but Sections 9 and 20 of the 1958 Act from modification or exclusion and it makes it clearer than the existing wording that the rules may only modify or exclude provisions so far as it is necessary to do so to conform to the rules which are made to enable attachment of earnings orders to be consolidated.

I hope that the hon. and learned Member for Southport (Mr. Percival), who raised the matter, will feel that we have met the substance of what was concerning him.

11.45 p.m.

Mr. Percival

Again, I am happy to be able to say that we appreciate that this is a genuine effort to meet a point raised in Committee. I am not sure that it meets it altogether, but I appreciate that it is an extremely difficult point to meet fully. If we were to impose even more limitation, we might limit too much. I rise only to express appreciation the attempt which has been made and the result it has produced.

Amendment agreed to.

Clause 25

ENFORCEMENT PROVISIONS

The Attorney-General

I beg to move Amendment No. 23, in page 20, line 34, after ` or ', insert— ' in the case of an offence specified in sub-section (4) below'

Mr. Deputy Speaker

With this Amendment the following Amendments can be considered: No. 24, in page 20. line 34, after or ', insert: ' if he be the debtor'; and No. 25, in page 20, line 37, at end insert:

(4) The offences referred to above in the case of which a judge may impose imprison-ment are—

1. (a) an offence under subsection (2)(c) or (d). if committed by the debtor;
2. (b) an offence under subsection (2)(e) or (f), whether committed by the debtor or any other person.

The Attorney-General

Clause 25(3) provides that where a person commits an offence under subsection (2) in relation to proceedings in the High Court or a county court, he shall be liable on summary conviction to a fine not exceeding £25, or may be ordered by the High Court or the county court judge to pay a fine not exceeding £25 or to be imprisoned for not more than 14 days.

The Amendment would confine the sentence of imprisonment to offences by the debtor. The effect would be the same, but would also enable an employer to be imprisoned for offences involving recklessness or dishonesty. The House may feel that this is a reasonable compromise, in the circumstances.

Sir P. Rawlinson

As anyone who has followed the process of the Bill and previously the Payne Committee's considerations, will appreciate, here we come to the enforcement provisions. The enforcement provisions are difficult in a Bill of this kind which is trying to eliminate from our law imprisonment for debt and therefore to take away from our law that a person may be sent to prison for owing money. It seemed to my hon. Friends and me that to put in the Bill the sanction of imprisonment for failing to help to participate in a scheme abolishing imprisonment for debt was a trifle hard. It seemed that there would be more employers in prison than debtors.

We had considerable discussion on this in Committee. Like everything else in connection with the Bill, it is easy to state general principles, but it is a complex and difficult matter when one is not easily able to come to conclusions and make the provisions required if one wants to maintain the principles of this part of the Bill.

I should like to be assured by the Attorney-General that the Government Amendments provide only for imprisonment of the employer if there is really recklessness and dishonesty. By recklessness, I understand it is of the criminal kind of not caring whether something is true or false. We are imposing a duty on employers. We are putting a burden on them and I want to make sure that it is not an unfair burden.

It was for that reason that we tabled Amendment No. 24. If the Attorney-General can assure us that this provision provides for imprisonment only for recklessness and dishonesty, it is a matter which we might be prepared to accept. I recognise that, if there is to be a fine, we must provide an alternative of imprisonment for a wilful, deliberate, dishonest and criminal, in the sense of reckless, refusal to obey the provisions of the Act; and there should be some sanction other than that merely relating to contempt of court. I want to be sure that the employer will not be in jeopardy of being imprisoned for anything less than wilful dishonesty and refusal to do what he has to do.

In the legislation dealing with trade unions, which will be brought before the House shortly and which we shall spend long and weary weeks debating all the way through June and July, and perhaps in October, there is no sanction of imprisonment: it is only a fine. Why should there be a sanction of imprisonment on employers?

It will probably shorten the debates we shall be having on the Bill relating to trade unions if we can be assured that under this Bill, which eliminates imprisonment for debt, those in breach of any of the provisions of the Bill when enacted will not be sent to prison unless it is for wilful and dishonest breaking of the law.

The Attorney-General

I can certainly give that assurance. The sanction of imprisonment would apply only in respect of matters referred to as regards an employer in subsection (2)(e) and (f). They relate to knowingly or recklessly giving a false notice under Clause 16(2), or knowingly or recklessly—the language is used in the sense indicated by the right hon. and learned Member the Member for Epsom (Sir P. Rawlinson)—making a false statement under Clause 16(2), Clause 20(1) or Clause 21. Such offences are analogous to contempt of court. That is why in this legislation it is thought proper to retain for them the sanction of imprisonment.

Amendment agreed to.

Further Amendment made:No. 25, in page 20, line 37, at end insert:

(4) The offences referred to above in the case of which a judge may impose imprisonment are—

1. (a) an offence under subsection (2)(c) or (d), if committed by the debtor;
2. (b) an offence under subsection (2)(e) or (f), whether committed by the debtor or any other person.—[The Attorney-General.]

Clause 27

CONSEQUENTIAL AMENDMENTS OF 1958

ACT

The Attorney-General

I beg to move Amendment No. 26, in page 22, line 23, leave out from beginning to ' shall '.

I suggest, Mr. Deputy Speaker, that it would be convenient to discuss also Amendment No. 27.

Mr. Deputy Speaker

If that is the wish of the House.

The Attorney-General

These Amendments relate to the intention to introduce a Bill to consolidate all provisions relating to attachment of earnings. The House may think that that consolidation is highly necessary, as there will now be several Acts dealing with attachment of earnings. The purpose of the Amendments is to make that process simple.

Sir P. Rawlinson

I am grateful to the Attorney-General for having examined and clarified this matter, which we raised rather hesitantly in Committee.

Amendment agreed to.

Further Amendment made:No. 27, in page 22, line 29, at end insert:

(3) In section 1 of the Act of 1958 (introductory provisions setting out the scheme of Part I as respects registration in one court of a maintenance order made by another), after subsection (1) there shall be inserted the following subsection:—

' (1A) In the following provisions of this Act " maintenance order " means any order specified in Schedule 8 to the Administration of Justice Act 1970 '— [The Attorney-General.]

Clause 28

OTHER PROVISIONS FOR INTERPRETATION

OF PART II

Mr. Deputy Speaker

The next Amendment selected is No. 28.

Mr. Percival

I beg to move Amendment No. 28, in page 23, line 3, leave from beginning to end of line 6.

This is a highly technical—

The Attorney-General

This Amendment was taken with Amendment No. 9.

Mr. Percival

I am not sure now whether I should be raising a point of order, Mr. Deputy Speaker, or continuing the speech which you had called me to make.

Mr. Deputy Speaker

Perhaps the right hon. and learned Gentleman's intervention was a little irregular. I am in a little doubt myself. I thought that Mr. Speaker had mentioned Amendment No 28 with No. 9, but, if there be any doubt about it, I am bound to allow the Amendment to proceed.

Mr. Percival

I think that he may have mentioned it in connection with Amendment No. 9, but one can fairly say, I think, that the House has given no consideration to Amendment No. 28 in any form. It will not take more than a few moments, Mr. Deputy Speaker. Unless you direct me to the contrary, I should wish to make a short speech.

The purpose of the Amendment is to leave out the definition ' the employer ', in relation to an attachment of earnings order, means the person who is required by the order to make deductions from earnings paid by him to the debtor ". There will be no difference of opinion on what the situation is. The meaning of the word " employer " in the Bill as drafted varies according to whether it has a " the " in front of it or not. Without a " the ", the word " employer " means what one would expect it to mean, that is, a person who has someone else in his employment. With a " the " in front of it, it does not necessarily mean that; it means the person to whom the attachment of earnings order is directed, even though he may have ceased to be the employer of the person from whose earnings deductions are to be made.

I neither mean nor imply any criticism of the draftsmanship of the Bill. I recognise the draftsman's dilemma. He wants to find a phrase which means " the person to whom the attachment of earnings order is directed ", and, instead of repeating that every time when he wishes to refer to that person, he uses the expression " the employer ", whether that person so described is or is not still the employer in fact.

It would be best not to do that, and I think it worth a few more lines, if necessary, to avoid it. Although we can understand the need for the words used, it is not easy to explain to laymen inside or outside the House that " employer " without a " the " means one thing and with a " the " it means something else. It contributes nothing to the standing of the law in the eyes of the people who matter in this context, that is, the laymen.

Need we keep this definition? If accepted, the Amendment would at least avoid the rather odd mechanical or artificial state of affairs which I have described. If the definition could be done without—if that is not the most appalling piece of grammar—let us do without it. By accepting the Amendment, we should do without it, and all the better for that.

12 midnight.

The Attorney-General

We have looked carefully at this rather esoteric point. I make no complaint about the hon. and learned Gentleman's raising it, but we are satisfied that in the light of Amendment No. 9 any possibility of confusion between Clause 15(2) and the definition of the employer in Clause 28(1) has been avoided. Although I am grateful for the care the hon. and learned Gentleman has applied to this point, I am satisfied that an apparent anomaly is not a real anomaly.

Amendment negatived.

Clause 33

PROVISIONS SUPPLEMENTARY TO

SS. 31 AND 32

The Attorney-General

I beg to move Amendment No. 29, in page 27, line 19, leave out sections 31 and 32' and insert ' this Part '.

I believe that it would be convenient to consider with it Government Amendment No. 30, to leave out Clause 35.

Clause 32(2) enables the High Court, in an action for damages for personal injuries, to make an order for the inspection, photographing, preservation, and so on, of property which does not belong to a party to the proceedings but which is the subject matter of the proceedings or as to which any question arises in the proceedings. By virtue of Clause 35 this provision binds the Crown, except the Queen in her personal capacity, although the court is precluded from making an order if it considers that it would be injurious to the public interest.

Clause 32(2) gives effect to a recommendation in paragraph 367 of the Report of the Winn Committee on Personal Injuries Litigation, and is complementary to Section 21 of the Administration of Justice Act, 1969, which enables the High Court, before the commencement of proceedings, to make an order for the inspection, photographings, preservation and so on of property which is likely to become the subject matter of the proceedings or as to which any question may arise in the proceedings. Section 21 is not confined to prospective proceedings for personal injuries, but, on the other hand, it does not bind the Crown. A confusing and anomalous situation would result therefore when Clause 32 (2) comes into operation.

Both Section 21 and Clause 32(2) will have to be supported by rules of court prescribing the circumstances in which an order may be made, and it is desirable that there should be a single rule or set of rules providing for the inspection of property before the commencement of proceedings and against a third party. during the course of proceedings. As matters stand, however, this could not be done without introducing qualifications which might easily be overlooked.

The new Clause agreed to at our last sitting on the Bill on 4th May accordingly provides for Section 21 of the Act of 1969 to bind the Crown in relation to claims for personal injuries to the same extent as Clause 32(2) and the other provisions of Part II. That is to say, in prospective or pending proceedings for personal injuries the court will be able to make orders in respect of property belonging to the Crown, other than the Queen in her personal capacity, unless the court considers that compliance with the order would be injurious to the public interest.

The substitution of the words " this Part " for " sections 31 and 32 " in Clause 33(3) is a consequential Amendment to enable the definition of " personal injuries " to apply to the new Clause.

Sir P. Rawlinson

I am sure that every hon. Member engaged in this important piece of law-making knows exactly what we are doing in accepting this Amendment. This situation again illustrates the criticism which can be directed at each one of us for involving ourselves in legislating in matters such as this, which are not of political controversy and are of great importance to the citizens, at this hour of the night. These are very complex matters.—[Interruption.] Perhaps the hon. Member for Harrow, East (Mr. Roebuck), with his lucid mind, has grasped what the Attorney-General said and will be able to assist us in the debate on the Amendment. I am sure we would all like to hear his explanation.

At first sight, the Amendment excludes Clause 35, which is the application to the Crown, but that is not the real effect because, as I understand, the Crown will be bound in proceedings in the case of personal injury, with the qualification that if there is involvement of the public interest it excludes the binding of the Crown.

Public interest is a matter which the courts in other legislation have to take into account, but we should know what it is and what standard the courts will apply in their decisions about public interest. Is this a precedent? Could we extend other legislation in order to let the courts look at matters such as the Official Secrets Act in deciding where the public interest lies? Is it a precedent we should ordinarily have with regard to Crown privilege?

Obviously, this proposal has, on the face of it, certain advantages, but, unlike other hon. Members who seem so clear about its purport, I must confess that I am still a little confused. I hope that the right hon. and learned Gentleman can assure us that it means that the Crown will not be put in any advantageous position other than the proviso with regard to the public interest. Perhaps he can tell us just what the application of the public interest means in this case before we leave that matter to the wretched courts to interpret.

The Attorney-General

I think that the courts in relation to disclosure of documents in these actions for damages for personal injuries will be able to judge whether disclosure of a particular instrument or document would be contrary or injurious to the public interest. These Amendments are simply consequential on the new Clause adopted by the House last week. The words " public interest " are already to be found in Clause 35 and the new Clause adopted last week includes that conception.

Amendment agreed to.

Clause 35

APPLICATION TO CROWN

Amendment madeNo. 30: In page 27, line 36, leave out Clause 35.—[The Attorney-General.]

Clause 37

EXCLUSIVE JURISDICTION OF COUNTY

COURT IN CERTAIN MORTGAGE ACTIONS

Mr. Percival

I beg to move Amendment No. 32, in page 28, line 40, leave out Clause 37.

Now we come to an Amendment of some substance on which we hope we may hear from other hon. Members, in- cluding perhaps the hon. Member for Harrow, East (Mr. Roebuck), who is taking such a close interest in our proceedings, very properly. Those of us on this side of the House who are members of the legal profession are dying to hear some laymen contributing something to these discussions. After all, lawyers exist solely to serve the layman and we would like to hear a little about what the layman thinks about these things. However, apparently hon. Members opposite would rather sit tight, perhaps so that they can get to their beds and then " scream blue murder " afterwards. But now is the time to scream a little and I hope that we shall hear some hon. Members opposite who have been making noises from a recumbent position making them from an upright position instead.

Mr. Roy Roebuck (Harrow, East)

A sedentary position.

Mr. Percival

Sedentary? Rather. sedimentary.

Clause 37 is a fascinating provision. For some time now we have had the principle that people should have a choice of proceeding in the High Court or the county court. If a person proceeded in the High Court he might be penalised by having to bear a proportion of his own costs. Never yet, so far as I know, have we accepted the principle that we should exclude a person from proceeding in the High Court. After all, the High Court of Justice was the initial court of justice. The whole basis of having a court of justice is that the court should be available to the citizen.

If he used it wrongly he was penalised in costs, but it was available to him. We have for some time, particularly in Administration of Justice Bills in recent years, been endeavouring to persuade people to make greater use of the county court to reduce the pressure upon the High Court. To persuade people to go to the county court we have said that if they went to the High Court when they could go to the county court, they may do less well as to costs, even if they won.

This Clause incorporates different principles. It does not say that those actions by a mortgagee for possession will in future be brought in the county court at the risk of the mortgagee as to costs. What it says is that apart from exceptions which are stipulated in the Clause no court other than a county court shall have jurisdiction to hear and determine that action. There is a principle in the Clause which requires discussion.

Some may agree, some may not, but it ought not to be passed through the House without at least some discussion as to the advisability of it. I want to make three points about it. The remarkable thing is that excluded from this provision is the County Palatine of Lancaster, a part of which I have the good fortune to represent. This is an enormous area and once we exclude that we have excluded a large number of people from these provisions. In future, these people can take their choice, just as now they can proceed in the High Court if they wish and they will be at no risk if they do so.

In addition, we are excluding the Greater London area which in terms of square miles and people who live in it is a very large slice of the whole country. We have the curious situation in the Clause that we are introducing something which is a departure from our normal principle. We say that in a particular area the litigant will not have the choice of courts subject to a penalty, but will have no other court than the county court. We immediately exclude from that two large areas which incorporate a great number of people. So we have the extraordinary situation that we are saying that there is one law for one section of the community and another for the remainder. It is always said that it is wrong to have one law for the rich and another for the rest, presumably on the basis that the law should be the same for everyone. I would like to hear a further explanation of why it is thought to be correct here to have one law for those who live in the Greater London area and in the County Palatine of Lancaster and another law for the rest.

It will be no surprise to the Attorney-General to know that we would like to have a little more explanation on the second and third points. At the moment, the procedure for these actions and the process for dealing with them in the High Court is working extremely well. I am all in favour of seeking out processes which do not work and trying to improve on them.

12.15 a.m.

Like every other lawyer in the House, I do not suppose there is any time in the last 20 years when I have been on less than one committee which has been seeking that sort of end. Here we have a process which works very well. These applications are dealt with on affidavit, which is very convenient to the parties and saves money. Such is the machinery in the High Court that they are dealt with very expeditiously, which, again, is very much in the interests of both parties.

It may be that there is a reason for providing other machinery, but we ought to be sure in these cases that when we say to people, " You can no longer use that very effective machinery; you will have to use other machinery ", the other machinery is as effective as the machinery of which we are depriving them.

In Committee, my hon. Friend the Member for Hornsey (Mr. Rossi) raised two queries. One was: what steps have been taken to estimate the burden of extra work which will fall on the county courts, and who will deal with this work in the county courts? Will these applications all go to the county court judges and, if so, will the county court judges have enough time to deal with these applications with the same dispatch with which they are at present dealt? Also, will the county court rules provide for a procedure which will be as expeditious and as cheap as the present procedure?

Hon. Members opposite below the Gangway, perhaps, have not been concerned with actions of this kind. If they were concerned with such actions, they would be very interested to ensure that the advantages of the present speedy and cheap processes are not lost. We are a little concerned that we may be transferring this work to the county courts without ensuring that county courts can deal with it at least as expeditiously as the High Court and without further costs being incurred. It is for that reason that we have put down this Amendment to delete the Clause. We would welcome any further assurance which the Attorney-General can give us on any of those points.

The Attorney-General

Clause 37, which is linked with the previous Clause, is for the assistance of mortgagors who are temporarily in difficulty, and it enables them to apply to the court for a delay in the processes which the mortgagee may seek to bring.

The Clause provides that proceedings for the possession of a mortgaged dwelling-house situated outside Greater London shall be brought in the county court only if the value of the property is within the ordinary county court jurisdiction. In relation to a property of that kind in Greater London there will be concurrent jurisdiction between the county court and the High Court, and the same arrangements will apply in regard to Liverpool and Manchester in view of the existence of the Lancaster Palatine Court. The explanation is that the High Court may be far more convenient for mortgagors, mortgagees and building societies in its location than the county court. That is why this alternative place for the hearing of proceedings is retained.

We have looked carefully into the matters raised by the hon. Member for Hornsey (Mr. Rossi) and we are satisfied that the county court procedures for dealing with these matters will be the same as the procedures used in the High Court. As to the time that the proceedings will take, we are again satisfied that there is little in it as between proceedings in the Chancery Division and in the county court. We think that in the circumstances, what is proposed is the most practicable procedure.

Mr. Eyre

I see from the report of the Standing Committee that the Attorney-General said that on Report he would have investigated the possibility of providing extra trained staff in the county courts to deal with these complicated matters. Will he tell the House the result of his inquiries?

The Attorney-General

As I said, I have looked into the matter. We think that the registrar's court and the county court registry will be able to cope with the additional work involved, which is thought to be very small in volume.

Mr. Eyre

The Attorney-General may be right in saying that, viewed against the background of the total turnover in county courts, it may be small in volume, but he should understand that these are highly technical and complicated matters, on which a great fund of skill has been built up in the High Court, and it would be difficulty for county courts to adjust themselves to these processes.

Since the rules are to be exactly the same, it will mean that a similar fund of expertise will have to be built up in the county courts, and the Government's proposals may make an unreasonable demand upon the staffs of the county courts who already have considerable extra burdens thrust upon them.

I ask the Attorney-General to be careful in checking the arrangements for staffing in the county courts and their ability to deal with these matters. I would have liked him to give a much fuller reply and further details, as he said he would.

The Attorney-General

I am sorry if I have not satisfied the hon. Gentleman. We have looked into the position. A mortgage possession case which is brought in a district registry of the High Court in respect of property situated in the area of the registry is heard by the district registrar, who is the same person who, in his capacity as county court registrar, will be hearing such cases in the county court. So it will be dealt with by the same man with the same expertise, and we are satisfied that this is the best way of dealing with the matter, and so did the Payne Committee which investigated it.

Mr. Percival

It is difficult at any time, let alone at this hour of the night, to translate into terms of practicality everything that is said. What the Attorney-General says about the district registrar and the county court registry being the same person may be true some of the time, but it is not true all of the time. Not all county court registrars are district registrars.

The Attorney-General said that he had come to the conclusion that the volume of additional work which would be cast to the county courts would be so small that the registrars could deal with it. Speaking personally, I do not find that a very convincing answer. We are putting all sorts of extra duties on the registrar under the various Measures that are passing through the House. It may be that the Bill will not cast a great deal of work upon the county courts, but I thought that the object was to rid the High Court of a great deal of work. If the Measure will not do that, but make only a marginal difference, why are we bothering with it? If it will have more effect than that, have the Government catered for it? The difficulty will be discovered at a fairly early stage, and all we can do on this side of the House is to voice our disquiet.

We are not convinced by the argument, but we have no alternative but to accept the explanation and hope that it is right. We had hoped to go to bed tonight better assured on the working of the Clause, but we do not seek to take it out altogether. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 40

PUNISHMENT FOR UNLAWFUL

HARASSMENT OF DEBTORS

Sir P. Rawlinson

I beg to move Amendment No. 33, in page 30, line 6, leave out paragraph (a).

Mr. Deputy Speaker

With this we are to take the following Amendments: No. 34, in page 30, line 6, leave out 'harasses the other with 'and insert 'makes'.

No. 35, in line 7, leave out ' their frequency or '.

No. 36, in line 8, leave out ' or publicly '.

No. 37, in line 11, leave out ' distress or humiliation '.

No. 38, in line 14, leave out paragraph (c).

No. 39, in line 19, leave out subsection(2).

No. 40, in line 24, leave out subsection(3).

Sir P. Rawlinson

We now come to Part V of the Bill and the creation of a new criminal offence. Whenever Parliament creates a new criminal offence, it should always study the provision with care, consider the necessity for it and study the way in which it is drafted. Of course, a new criminal offence should be created when the need for the introduction of such a change is clear, but we must consider it with care, especially when, as in this case, a person guilty of a first offence may be fined £100.The offence deals with the harassment, or the harassing, of debtors. The provision says that anybody who makes a threat, or even a demand, in such a way as to humiliate or distress the person from whom the money is demanded, money belonging to the former person, for it is he who is owed the money, so as to cause humiliation may be guilty of an offence. This seems to be rather absurd.

It is sensible that, as under paragraph (b), anybody who falsely represents that criminal proceedings will lie for failure to pay a debt, or falsely represents that lie is authorised in some official capacity, or who utters a document falsely represented by him to have some official character, may be and should be charged with a criminal offence.

What I am getting at in the Amendments is that the provision goes too far as it stands. It is excessive to make it a criminal offence for someone to demand his money back in such a way that in doing so he humiliates the person who owes the money. I should be content if it were a criminal offence for someone to pretend to have an official capacity, or make up some kind of document to make it appear official, but I regard the extension of that to be going too far.

By removing paragraph (a), we should make the Clause provide that it would be a criminal offence if a person made a demand for payment which, in respect of the manner of making such a demand or threat, was calculated to cause that person alarm. If it caused alarm and was calculated to cause alarm, it might be said that that was too offensive a way to get back the money owed. But it would be going too far and would be absurd if it were a criminal offence to say to someone, "Pay me the fiver you owe me " if doing so caused humiliation. It should be a criminal offence to cause fear.

The Attorney-General said in Committee that there were " blue cards " and " pink cards " and various procedures which people engaged in getting their money paid back could use, and some of it is highly objectionable, but we must be careful when creating a new criminal offence and must recollect that it is a principle of the criminal law that it should have certainty and be applicable in circumstances which will not make the law look an ass. Paragraph (a) makes it look an ass. It should be altered in the terms of the Amendments so that causing alarm and fear is the criminal offence.

12.30 a.m.

The Attorney-General

These Amendments relate to the important Clause 40, which provides punishment for the unlawful harassment of debtors by what the Payne Committee called unreasonable extra-judicial methods for the collection of debts.

If the Amendments were carried, the Clause would fall far short of dealing with the intolerable type of oppressive conduct for which certain types of debt collecting agencies are responsible which is condemned in the Payne Report. The result of accepting the Amendments would make the Clause ineffective to secure the object sought by it, namely. that it cannot be tolerated that just claims be pursued by unjust methods.

In particular, the deletion of the key paragraph (a), proposed in Amendment No. 33, which is the only type of harassing conduct expressed in general terms, would leave the less reputable debt collecting firms with an almost unlimited field within which to use their ingenuity to adopt practices with the object of instilling fear and panic in debtors causing them anguish and driving them to desperation in paying their debts.

If the Clause were reduced to the skeleton left by the Amendments, nearly all the types of conduct illustrated in the Payne Report would not be punishable under the Bill. For example, frequent calls at the home of the debtor leaving threatening cards; informing neighbours of the debtor or local shopkeepers about his indebtedness under the guise of seeking information; writing to the employer of the debtor about his indebtedness under the guise of avoiding the need for the debtor to absent himself from work to attend court; visiting the home of the debtor in the early hours of the morning under the guise of collecting chattels let under a hire-purchase agreement; visiting the debtor at his place of work; calling with an Alsatian dog to collect from the debtor; sending obvious demand notes for debts but wrongly addressed to the debtor's neighbours. The Payne Committee found this to be the kind of misconduct to which certain disreputable collecting agencies descend.

The separate exclusions proposed are. I submit, unacceptable. Amendment No. 34 proposes the substitution of " makes " for " harasses the other with ". " Harasses " has the clear connotation of tormenting and is a useful word to retain in the Bill. It is a word which the court is capable of construing and applying.

Amendment No. 35 proposes the omission from line 7 of " their frequency or I submit that the demand for payment of a debt may be reasonable and proper in certain instances, but what is a legitimate demand made on one, two or three occasions may, if it is constantly repeated and made with the object of coercing the debtor, cease to be reasonable.

Amendment No. 35 proposes the omission from line 8 of " or publicity ". The Payne Committee found that certain collectors used unacceptable means, like informing neighbours or the debtor's employer and deliberately addressing demand notes to the debtor's neighbours —a thoroughly underhand type of activity. which I feel sure the House would wish to condemn.

The retention of the words " distress or humiliation ", which Amendment No. 37 seeks to leave out, seems to me to be satisfactory as part of the other elements—namely, deliberate intention to create alarm, distress or humiliation on the part of the debtor or members of his family.

Amendment No. 38 seeks to omit the circumstance where the collector masquerades as being someone in an official capacity. The ignorant and the elderly are sometimes liable to be impressed by claims by people of that kind. It seems to the Government that if there is a falsity of that kind it ought to be punishable under the criminal law.

Mr. Percival

Before the right hon. and learned Gentleman passes from that point, will he help the House on what is meant by " official capacity "? At col. 324 in the Standing Committee, the Attorney-General said: That means representing himself to be a representative of the court, or something of that kind, or dressing himself up to look like a court official."—[OFFICIAL REPORT,Standing CommitteeG, 21st April, 1970; c. 324.] I suggest that it is important, when creating a criminal offence, that we only use words which are capable of a clear definition. Will the right hon. and learned Gentleman help us on what is mean by " official capacity " in this context?

The Attorney-General

I do not think that the words " official capacity " would give rise to any practical difficulty in a court, and it is preferable that the words should be as wide as they undoubtedly are because the ingenuity of unscruplous debt collectors may lead them to attempt to adopt many kinds of official character. For instance, he might represent himself as a Government or local authority official, or an official of the court itself. It is against that kind of misrepresentation that these wide words are directed, over and above what is provided for in the County Courts Act.

The seventh Amendment has not been stressed by the right hon. and learned Gentleman. I take it that the eighth Amendment, which proposes to omit subsection (3), is merely consequent upon the proposed omission of subsection (1)(a). If subsection (1)(a) is retained, it is obviously right to retain subsection (3), as that balances against the protection afforded to the debtor by subsection (1)(a), and it is designed to protect the creditor's legitimate interest.

Looking at the Amendments as a whole, if they were accepted they would cut the ground from underneath a provision which is intended to eliminate a social evil, and I invite the House to reject them.

Mr. Roebuck

I apprehend that the hon. and learned Member for Southport (Mr. Percival) is anxious that I should participate in the debate. Such is my obliging nature that I am happy to accede to his request. I am not disturbed at the lateness of the hour. I understand that the debate was arranged so that he and his right hon. and learned Friend the Member for Epsom (Sir P. Rawlinson) would be able to be present, as during most days they are busy working elsewhere. I am happy to be able to accommodate them on this occasion.

I respectfully support my right hon and learned Friend's submission that these Amendments should be rejected. In my view, the Amendments represent nothing more nor less than a charter for the shyster solicitor and the strong-arm boys whom they employ. My right hon. and learned Friend read out a category of the sins in which these people have been engaged, and I thought it was astonishing that right hon. and hon. Gentlemen opposite, who so often lecture the House and the country on the need for law and order, should have the impertinence to come here at this hour and suggest that this very well-thought-out Measure should be amended to allow unsavoury persons to act in a manner which most citizens would regard as being immoral, if not unlawful. I am happy that my right hon. and learned Friend is to make these immoral actions unlawful.

The Attorney-General referred to people going round with Alsatian dogs. We heard all about that in the era of Rachmanism. The Government, with great realism, put down that sort of nonsense which the Conservative Party sponsored in one of its Measures. I am happy to give my support to this further Measure to make this a far more lawful island than it was under the leadership of right hon. and hon. Gentlemen opposite.

Sir P. Rawlinson

Before I go outside and get my Alsatian dog to turn upon the electorate in my constituency, I should say that we are grateful to the hon. Member for Harrow, East (Mr. Roebuck) for intervening in the debate with his usual courtesy and grace. No doubt any shyster solicitor whom the cap fits will feel acute remorse on reading what he said.

With respect to the Attorney-General, what we have to do here is to try to deal with the evil which we all acknowledge could exist. There is ingenuity among unscrupulous debt collectors. There is also considerable ingenuity among those people who get money out of other people, very unscrupulously and skilfully, and sometimes with sad consequences to those who are deceived into lending money. What the deceived person wants is his money back, and he may quite frequently make demands for the money to be paid back. He may say to the person who has borrowed from him, "I want that money paid back. You know that you owe me the money. Please pay it back."

It may be a humiliation for the person who has borrowed the money to have that demand made of him. If it is made frequently it is likely to be humiliating, especially if it is made in front of other people. But does the act of demanding his money back make a person guilty of a criminal offence? We are surely not after that type of person. Surely we are after the type of person who tries to pretend that he is somebody whom he is not and who, by the use of some official-looking form, tries to blackmail somebody else into repaying money.

Subsection (2) provides that A person may be guilty of an offence…if he concerts with others in the taking of such action and it is a very wide range of action. I suggest that although we may glibly accept it this morning as being appropriate for a criminal offence, if we were to bring it in in reference to a statute concerned with larceny or theft we should look at the words here with much greater care. The Attorney-General may say—and it is a technique often used by persons standing at the Dispatch Box—that if the Amendments are accepted in their entirety the whole Clause will be completely distorted.

We have no intention of doing that. We want it to be an offence if someone creates alarm by this sort of action—by falsely representing that criminal proceedings will lie if payment is not made. We want it to be an offence if somebody pretends to be somebody whom he is not, in order to try to get money repaid. We want it to be an offence if somebody presents a document falsely representing that it has some official character. But I do not believe that it should be a criminal offence, carrying with it a criminal sanction, to go up to a man and say—perhaps on several occasions—" Pay me back the money you owe me. Give me back the money that you borrowed. You ought to pay it back."

Mr. David Weitzman (Stoke Newington and Hackney, North)

Has not the right hon. and learned Gentleman for- gotten the words dealing with frequency, or the manner of making such demands, or the occasions on which they are made?

Sir P. Rawlinson

With respect, I have not forgotten them. If the matter was limited to the causing of alarm, I would accept it, but to include distress or humiliation is a different matter. To alarm someone is to put him in fear, but as for distress—it is always distressing to be reminded of something wrong that one has done, and it is also humiliating. But that is not the standard.

I ask for precision. When we are making criminal law let us make it precisely and clearly. We have gone too far in paragraph (a). I am fully in sympathy with the aims of those who want to bear down on people who unfairly and improperly make demands for money, but we have gone too far here. I very much regret that the Attorney-General has not seen fit to accept certainly the first Amendment.

Amendment negatived.

Clause 41

RECOVERY OF COSTS AND COMPENSATION

AWARDED BY MAGISTRATES, ASSIZES,

QUARTER SESSIONS, ETC.

The Attorney-General

I beg to move Amendment No. 41, in page 31, line 29, at end insert:

(5) References in subsections (1) and (2) above to orders mentioned in Schedule 9 to this Act include references to orders made before the day appointed under section 54 of this Act for the coming into force of this section, except an order in the case of which the person entitled to payment has before that day begun proceedings for its enforcement; and in relation to such a case the enactments in force immediately before that day with reference to the enforcement of such an order shall continue to apply notwithstanding any repeal effected by this Act, without prejudice however to section 13(6) of this Act.

For the purpose of the operation of subsection (1) above with respect to an order made (otherwise than by a magistrates' court) before the day so appointed, the order shall be deemed to specify the magistrates' court for the petty sessions area in which the person subject to the order for the time being resides.

This Amendment is a transitional provision. On the coming into force of this Clause, there will be in existence orders for costs which have not yet been enforced. In some cases, the process of enforcement will already have been started under the present law, and the Amendment provides that, where such process has been started, it shall continue under the present law, but that where an order for costs has been made but no steps have been taken to enforce it before the appointed day, it will be enforced in accordance with the provisions of Clause 41.

Amendment agreed to.

Clause 43

PROCEDURE FOR RECOVERY OF LEGAL AID

CONTRIBUTIONS IN CRIMINAL CASES

The Attorney-General

I beg to move Amendment No. 42, in page 34, line 18, at end insert:

(9) Nothing in this section applies to a legal aid contribution order made before the day appointed under section 54 of this Act for the coming into force of this section; and in relation to such an order the enactments in force immediately before that day and relating to the enforcement of such an order shall continue to apply notwithstanding any repeal effected by this Act, without prejudice however to section 13(6) of this Act.

This Amendment, also, is a transitional provision, relating to cases in which a legal aid contribution order is made but not enforced before the day appointed for Clause 43 to come into force. Such orders will continue to be enforced under the present law, under Section 79 of the Criminal Justice Act, 1967.

Amendment agreed to.

Schedule 2

AMENDMENT OF ENACTMENTS

CONSEQUENTIAL ON SECTION 1

The Attorney-General

I beg to move Amendment No. 58, in page 43, leave out line 27.

This is a drafting Amendment to correct a minor slip. Reference to Section 153 overlooked the fact that it had been repealed by Section 28 of the Criminal Justice Act, 1969.

Amendment agreed to.

Schedule 5

DEDUCTIONS BY EMPLOYER UNDER

ATTACHMENT OF EARNINGS ORDER

The Attorney-General

I beg to move Amendment No. 46, in page 48, line 36, leave out from ' the ' to end of line 42 and insert: following enactments—

the National Insurance Act 1965,

the National Insurance (Industrial Injuries) Act 1965, or

the National Health Service Contributions Act 1965

(c) amounts deductible under any enactment, or in pursuance of a request in writing by the debtor, for the purposes of a superannuation scheme within the meaning of the Wages Councils Act 1959.

The purpose of the Amendment is to correct two defects in paragraph 3 of the Schedule, which defines attachable earnings for the purposes of an attachment of earnings order as the earnings which remain payable to the debtor after deduction by the employer of income tax, contributions under any of the enactments specified in Schedule 6, amounts deductible under any enactments other than the Bill or in pursuance of a request by the debtor in writing for the purposes of a superannuation scheme within the meaning of the Wages Councils Act, 1959.

Sub-paragraph (b) is defective because the enactments specified in Schedule 6, which deal with social security contributions and allowances, do not include the National Health Service Contributions Act, 1965. Contributions payable under this Act should clearly be excluded from a debtor's attachable earnings The first part of the Amendment accordingly substitutes for the reference to Schedule 6 a list of the enactments providing for the payment of contributions which are to be deducted from the debtor's pay in order to arrive at his attachable earnings.

Sub-paragraph (c) is defective because the reference to amounts deductible under any enactment other than the Bill should be confined to amounts deductible for the purposes of a superannuation scheme within the meaning of the Wages Councils Act, 1959.

Mr. Percival

This is interesting. Before the Amendment was made, to find out what " attachable earnings " meant, one had to look first at Schedule 5. Then, to find out what contributions under enactments were to be taken into account, one had to look at Schedule 6. So it was like the Land Commission Act, where one went from Section to Schedule and then from Schedule to following Schedule.

I welcome the Amendment for one fact —instead of having to look at two Schedules, one can find all the information in one. Many Amendments have been made all along the line to the Bill since it started in another place. Now, at the eleventh hour, this Amendment seems to make substantial differences in this respect. Although it has the merit of transferring the Statutes which are being talked about from Schedule 6 to Schedule 5, it does not only do that. The contributions to be taken into account under these Statutes are very different from what they would have been without this Amendment. Indeed, only two Statutes will be common to the Bill when amended by this proposal. We read in the Schedule: Attachable earnings ', in relation to a pay-day, are the earnings which remain payable to the debtor on that day after deduction by the employer. Under the previous paragraph, ' Pay-day ', in relation to earnings paid to a debtor, means an occasion on which they are paid. As the Bill stands, unamended, that relates to contributions under the National Insurance Act, 1965 and the National Insurance (Industrial Injuries) Act, 1965.

Those two Statutes are transferred From Schedule 6 to Schedule 5. But in Schedule 6 there were three other Statutes; namely, the Family Allowances Act, 1965, the Ministry of Social Security Act, 1966 and the Industrial Injuries and Diseases (Old Cases) Act, 1967. Contributions under those Acts were caught under the definition of " attachable earnings ", but they are no longer to be taken into account.

Why was it thought right, until this moment—until this Amendment was drafted—to take those contributions into account, while now it is suddenly thought not to be necessary? And why is the National Health Service Contributions Act, 1965, being brought into this exer- cise? Considering the substantial change being effected by the Amendment, it would be helpful to know why there has suddenly been this drastic change of mind.

The Attorney-General

The answer is simply that no contributions are sought under the Acts which it is proposed to leave out, such as the Family Allowances Act, 1965. That is the explanation.

Amendment agreed to.

Schedule 7

PROVISIONS OF MAINTENANCE ORDERS

ACT 1958 AS AMENDED

The Attorney-General

I beg to move Amendment No. 47, in page 51, line 6, leave out from ' In ' to of' and insert section 9(4) and (5) '.

Mr. Deputy Speaker

I suggest that it would be convenient for the House to discuss, at the same time, Amendment No. 53, in page 51, line 35, after 1970 " ', insert: and for " defendant " substitute " debtor

The Attorney-General

That is convenient.

These are drafting Amendments. Throughout Section 20 of the Maintenance Orders Act, 1958, the Bill substitutes the word " debtor " for " defendant ". The provisions of Schedule 7 as at present drafted make this substitution in paragraphs (a) and (b) of Section 20(4). Paragraph (a) is now being completely redrafted, and the Amendment will shortly be moved. The substitution of " debtor " for " defendant " having been made, Schedule 7 need operate only in respect of paragraph (b), and this group of Amendments confines the substitution to paragraph (b) alone.

Amendment agreed to.

The Attorney-General

I beg to move Amendment No. 48, in page 51, line 8, after Act ', insert:

(a)

Mr. Deputy Speaker

I suggest that it would be convenient for the House to discuss at the same time, Amendments Nos. 49, 50, 51, 54 and 55

The Attorney-General

This group of Amendments arises by reason of the intention to consolidate into one Act all the law relating to attachment of earnings, with that Act coming into force at the same time as the attachment of earnings provisions of the Bill. This will greatly simplify the task of those who must make or administer these orders, since without this consolidation they would have to look for the law in various Acts. In preparing the consolidating Bill, it has been thought possible to simplify the wording of subsections (4)(i) and (ii) and (5)(a) and (b) of Section 9 of the 1958 Act, and these Amendments to Schedule 7 achieve this simplification. Section 9, as amended and simplified by the Bill, can then be included in the consolidating Bill.

Amendment agreed to.

Further Amendments made: No. 49, in page 51, line 12, at end insert: (b) for the words from which made that order' to the end of paragraph (ii) substitute ' shall make the appropriate variation order, unless the debtor requests it to discharge the attachment of earnings order, or to vary it in some other way, and the court thinks fit to comply with the request '.

No. 50, in line 13, after ' Act ', insert—

(a)

No. 51, in line 16, at end insert:

'and

(b) for the words from " proceed under the following paragraph " to the end of the subsection substitute " discharge the attachment of earnings order, or to vary it in some other way, and the court thinks fit to comply with the request " '.—[The Attorney-General.]

The Attorney-General

I beg to move Amendment No. 52, in page 51, line 32, at end insert:

(d) for subsection (4)(a) substitute— ' (a) the power to make an order in pursuance of a complaint by the debtor for an attachment of earnings order, or the discharge or variation of such an order, shall be deemed to be a power to make an order against the person to whom payment under the relevant adjudication is required to be made (whether directly or through an officer of any court) '. It may be convenient, Mr. Deputy Speaker, to take, at the same time, Amendment No. 56.

Under Section 43 of the Magistrates' Courts Act, 1952, where a complaint is made with a view to proceedings in a magistrates' court, a summons is served on the person against whom the court has power to make an order as a result of the complaint. Where a husband is subject to an attachment of earnings order to secure maintenance payments and wishes to apply by complaint for the order to be varied or discharged, it is desirable that the wife should receive a summons so that she may have an opportunity to oppose the variation or discharge. She would not, however, be covered by the expression person against whom the court has power to make an order ". Section 20(4)(a) of the Maintenance Orders Act, 1958, provides, in effect, that she shall be deemed, for the purpose of the complaint to vary or discharge, to he the person against whom the court has power to make an order and the summons would, therefore, be served on her.

By reason of Clause 14(1)(d)(i) of the Bill, a debtor may apply to a magistrates' court for an attachment of earnings order to be made. A husband may make such application in respect of maintenance payments. But the wife may not, in every case, wish that such an order he made. There may be arrears and she may know that the husband has capital from which he could pay off the arrears immediately. For that reason, she may want a committal order to be made instead.

It is, therefore, necessary to provide that not only where the debtor seeks discharge or variation, but also where he seeks the making of an order, the summons shall be served on the wife. thus giving her an opportunity to be heard. The Amendment achieves this by inserting in Section 20(4)(a) of the 1958 Act a reference to an application that an order be made in addition to reference to applications for variation and discharge.

Amendment agreed to.

Further Amendments made:No. 53, in page 51, line 35, after 1970 " ', insert: ' and for " defendant " substitute " debtor "

No. 54, in page 53, line 19, leave out from ' court ' to end of line 28 and insert: 'shall make the appropriate variation order, unless the debtor requests it to discharge the attachment of earnings order, or to vary it in some other way, and the court thinks fit to comply with the request '.

No. 55, in line 45, leave out from ' to ' to end of line 51 and insert: ' discharge the attachment of earnings order. or to vary it in some other way, and the court thinks fit to comply with the request '.

No. 56, in page 55, line 12, leave out from beginning to ' and ' in line 16 and insert:

(a) the power to make an order in pursuance of a complaint by the debtor for an attachment of earnings order, or the discharge or variation of such an order, shall be deemed to be a power to make an order against the person to whom payment under the relevant adjudication is required to be made (whether directly or through an officer of any court).—[The Attorney-General.]

Schedule 9

ENFORCEMENT OF ORDERS FOR COSTS,

COMPENSATION, ETC.

The Attorney-General

I beg to move Amendment No. 57, in page 58, line 30, at end insert:

16. Where a person convicted by a magistrates' court appeals to quarter sessions against conviction or sentence, and quarter sessions makes an order as to costs to be paid by the respondent to the appellant.

Part II of Schedule 9 is intended to list all instances in which costs, compensation, etc., may be ordered by a court to be paid by a person, other than a convicted person. An order for such costs, compensation, etc, is enforceable, under Clause 41(2), as if it were for the payment of money recoverable summarily as a civil debt.

The case in which a person, convicted in a magistrates' court, succeeds in his appeal to quarter sessions and is awarded costs against the prosecutor was inadvertently omitted from Part II of Schedule 9, and the Amendment corrects that error.

Amendment agreed to.

Motion made, That the Bill be now read the Third time [Queen's Consent, on behalf of the Crown, signified].

Question put forthwith, pursuant to Standing Order No. 55 (Third Reading), and agreed to.

Bill accordingly read the Third time and passed, with Amendments.