Clause 5

HC Deb 04 May 1973 vol 855 cc1639-47

JURISDICTION OF HIGH COURT AND COUNTY COURTS

11.9 a.m.

Mr. Ian MacArthur (Perth and East Perthshire)

I beg to move Amendment No. 1, in page 4, line 25, leave out from 'section' to end of line 26 and insert: '19 of the Matrimonial Causes Act 1973'.

Mr. Speaker

With this Amendment we are to take the following amendments:

No. 3, in Clause 6, page 5, line 34, leave out from 'section' to '(which' in line 35 and insert: '27(2) of the Matrimonial Causes Act 1973'. No. 4, in page 6, line 1, leave out subsection (2) and insert: '(2) In subsection (1) of section 50 of the Matrimonial Causes Act 1973 (scope of the Matrimonial Causes Rules), the word "or" at the end of paragraph (c) shall be omitted and after paragraph (d) there shall be inserted the following words "or (e) any enactment contained in Part II of or Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973 which does not fall within paragraph (d) above".' No. 10, in Schedule 1, page 16, line 23, leave out from 'means' to end of line 26 and insert: 'such an order as is mentioned in paragraph (f) of section 23(1) of the Matrimonial Causes Act 1973 (lump sum payment for children) being an order made under section 23(1) or (2)(a)'. No. 11, in page 16, line 31, leave out from beginning to 'orders' in line 35 and insert: '(a) an order under section 22 of the Matrimonial Causes Act 1973 (maintenance for spouse pending suit); (aa) such an order as is mentioned in paragraph (d) or (e) of section 23(1) of that Act (periodical payments for children) being an order made under section 23(1) or (2)(a); (ab) an order under section 42(1)(a) of that Act ('. No. 15, in Schedule 5, page 23, line 21, leave out from beginning to '22' in line 23 and insert: '(a) for sub-paragraphs (a) to (c) of the definition of "relevant order" substitute—" (a) any order under section 19 or'. No. 16, in Schedule 6, page 24, leave out lines 24 to 31 and insert:

'1973 c.	The Matrimonial Causes Act 1973.	In section 19, in subsection (1) the words "subject to subsection (2) below", subsections (2) and (5).
		Section 46.'.

Mr. MacArthur

I am grateful to you, Mr. Speaker, for your suggested grouping, because all the amendments are to a greater or lesser extent consequential on the Matrimonial Causes Act.

I will explain as briefly as I can why I advise the House to accept the amendment at this stage, but before doing so I should like to transgress for a few moments to say how grateful I am to those right hon. and hon. Members who were good enough to serve on the Standing Committee. We were able to dispose of the Bill in three sittings and it emerged improved. I am also grateful to the Officers of the House and to my advisers.

Amendment No. 1 and the six others which are taken together are made necessary by the consolidation of the Matrimonial Causes Act for England and Wales in the Matrimonial Causes Bill which is on its way through Parliament. The Bill has been considered in another place and by the Joint Committee on Consolidation Bills, and, therefore, I think its further progress through Parliament is likely to be purely formal. I am advised that it is virtually certain that the Bill will receive Royal Assent quite soon. I suggest that, because of this, it would be wise for us to take note of the existence of the Bill which will shortly be enacted and make some necessary amendments to my own Bill here rather than leave it to another place to make these amendments.

The purpose of these amendments is simply to replace references in my Bill to the previous statutes by references to the appropriate sections of the new consolidating measure. The new Act will come into force on the same date as this Bill, namely 1st January 1974, so that the new references in my Bill will be appropriate when it is enacted. I do not think there is any need for me to say anything more about Amendment No. 1 or, indeed, Amendment No. 3.

I should add a further word of explanation about Amendment No. 4. It replaces subsection (2) of Clause 6 of the Bill with the new provisions which I suggest are made necessary by the consolidating measure. The purpose of the new provision, as of the old, is to make sure that the Matrimonial Causes Rule Committee has power to make rules for the purposes of Part II and Schedule 1 to the Bill. The new provision, however, differs considerably from the old because the consolidation Act will implement some recommendations of the Law Commission for amending the existing provisions governing the powers of the rules committee.

The purpose of the Law Commission's recommendation is to clarify the scope of the committee's powers and to include certain matters which are at present excluded. The difference of form is that Section 50(1) of the new Act will contain a list of the proceedings in relation to which the Matrimonial Causes Rule Committee will have power to make rules, while Section 50(2) will contain a list of the matters excluded from the scope of the committee's powers.

I suggest, therefore, that what is needed for the purposes of the Bill is to add a paragraph to Section 50(1) of the new Act which will specify proceedings under Part II of this Bill or Schedule 1 to it as proceedings over which the rule committee has jurisdiction. That is what the amendment does by adding a new paragraph (e) to the existing paragraphs (a) to (d) in the consolidating Act. The amendment is largely a matter of form, but there is in addition a change of substance and that is why I feel that I should offer this explanatory note.

The change of substance is that proceedings for the declaration as to the validity or subsistence of a marriage will no longer be excluded from the rule committee's jurisdiction, as at present drawn under Clause 6(2). This accords with the Law Commission's recommendation that the proceedings for a declara- tion should in future be within the rule committee's scope.

I pass to Amendment No. 10 in Schedule 1, page 16, line 23. This again is made necessary by the fact that legislation relating to matrimonial causes in England is being consolidated this Session. I do not think I need detain the House with any further explanation of this amendment but I shall be glad to do so if hon. Members wish.

11.15 a.m.

Amendment No. 11, the next in this group, is straightforward but there is a slight difference from the existing provisions in the interests of accuracy. Here again I will give a further explanation should that be the wish of hon. Members.

Amendment No. 15 alters paragraph (a) of the definition of "relevant order" in paragraph 11(1) of Schedule 1 as adapted by Schedule 5 in its application to Northern Ireland. Paragraph (a) is altered in its application to England and Wales by Amendment No. 10. The form of that amendment makes it impossible to adapt the paragraph for Northern Ireland by a simple substitution of statutory references. That being so, I suggest that paragraph (a) will have to be redrawn so as to be self-supporting for Northern Ireland. That result is achieved by this amendment.

The last in this group of amendments, No. 16, is straightforward. The necessary repeals clearly need to be reworded, in order to come into line with the Matrimonial Causes Bill.

I have tried to explain this group of amendments briefly and I am sure that any further explanation of them will be given by my right hon. and learned Friend the Lord Advocate, or by myself if that is the wish of the House.

The Lord Advocate (Mr. Norman Wylie)

As my hon. Friend the Member for Perth and East Perthshire (Mr. MacArthur) has said, these amendments are consequential on the consolidation of the Matrimonial Causes Act, and, indeed, Amendment No. 1 and Amendment No. 3 are straight cross-references to the appropriate provisions of the Bill which is currently going through this House.

As my hon. Friend has said, however, Amendments Nos. 4, 10 and 11 are rather more elaborate than simply making new references for old. As my hon. Friend has pointed out—if I may take Amendment No. 4 in the first place—the reason is that the consolidation Bill presently going through the House does rather more than purely consolidate. This House is competent, as the hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer) is aware, in consolidation procedure to absorb recommendations of the Law Commission, and that is done in this case.

The result is that Section 50 of the Matrimonial Causes Act—as we hope it will be—1973 differs in form and in substance from Section 7 of the Matrimonial Causes Act 1967 which it replaces. The difference—I think my hon. Friend spelt this out, but it would be in order that I should put it on the record—is that Section 50(1) of the new Act will contain a list of the proceedings in relation to which the Matrimonial Causes Rule Committee will have power to make rules, while subsection (2) of that section will contain a list of the matters excluded. In other words, the form of Section 50 of the new Act will be different from the form of the section of the Matrimonial Causes Act 1967 which it replaces. The changes embodied in the legislation presently under consideration in the consolidation legislation flow from the recommendations of the Law Commission.

I should like to add a word on Amendments Nos. 10 and 11—because the same point arises on both—to Schedule 1, paragraph 11. Amendment No. 10 relates to the definition of lump sum order, and No. 11 relates to the definition of relevant order.

These changes have to be made because there has to be a pick-up provision to take account of the references to the 1973 Act, and the sections to which reference is made deal inter alia with the situation when an action is dismissed. We are dealing here in the schedule, however, with circumstances in which an action is stayed. Accordingly, the amendments proposed by my hon. Friend the Member for Perth and East Perth-shire refer to the relevant provisions of the 1973 Act, as it will soon be, but they exclude in terms any reference to those provisions of it, following the earlier provisions of the Matrimonial Proceedings and Property Act 1970, which cater for the situation where an action has been dismissed, that situation being irrelevant for the purposes of this schedule. That is why the references to the 1973 Act, as it will be, are confined in this way.

Amendment agreed to.

Mr. MacArthur

I beg to move Amendment No. 2, in page 5, line 16, leave out subsection (5) and insert: '(5) The Court shall, at any time when proceedings are pending in respect of which it has jurisdiction by virtue of subsection (2) or (3) above (or of this subsection), also have jurisdiction to entertain other proceedings, in respect of the same marriage, for divorce, judicial separation or nullity of marriage, notwithstanding that jurisdiction would not be exercisable under subsection (2) or (3)'.

Mr. Deputy Speaker (Miss Harvie Anderson)

I suggest that we take at the same time the following amendments:

No. 5, in Clause 7, page 7, line 25, leave out subsection (5) and insert: '(5) The Court shall, at any time when proceedings are pending in respect of which it has jurisdiction by virtue of subsection (2) or (3) above (or of this subsection), also have jurisdiction to entertain other proceedings, in respect of the same marriage, for divorce, separation or declarator of marriage, declarator of nullity of marriage or declarator of freedom and putting to silence, notwithstanding that jurisdiction would not be exercisable under subsection (2) or (3)'. No. 6, in Clause 13, page 11, line 32. leave out subsection (5) and insert: '(5) The Court shall, at any time when proceedings are pending in respect of which it has jurisdiction by virtue of subsection (2) or (3) above (or of this subsection), also have jurisdiction to entertain other proceedings, in respect of the same marriage, for divorce, judicial separation or nullity of marriage, notwithstanding that jurisdiction would not be exercisable under subsection (2) or (3)'.

Mr. MacArthur

I am much obliged for that convenient grouping of amendments, Mr. Deputy Speaker.

As I said at the outset, I am most grateful to those right hon. and hon. Members, many of them learned, who sat on the Standing Committee, whose help and constant flattering references to me I much appreciated. One of those flattering remarks came from the hon. Member for Hackney, Central (Mr. Clinton Davis) when we were debating the Question on Clause 5. The hon. Gentleman's piece of flattery, which I read again this morning with happy recollection, was as follows: There comes a time in the life of every parliamentary draftsman, however skilful, when he goes berserk. The hon. Member for Perth and East Perthshire, who has drafted the Bill with great skill, is in extremely good company when it comes to that. He is in company with the Law Commission for England."—[OFFICIAL REPORT, Standing Committee C, 11th April 1973; c. 112–3.] The hon. Gentleman felt that the drafting of Clause 5 as it stood was "legal gobble-dygook", and my right hon. and learned Friend, while explaining the purpose of the words to which the hon. Gentleman took exception, suggested that perhaps it would be as well to look at them again.

Following that assurance, my advisers and I have looked at the wording again, and we think that we have now produced a solution which will be acceptable to the hon. Member for Hackney, Central. In passing, I should say that the hon. Gentleman told me yesterday that he would not be able to be with us for this stage in the passage of the Bill, and he apologised for his absence from the Chamber. I am certain that this amendment meets the point which he raised in Committee.

The hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) wondered how proceedings brought by virtue of subsection (5) could become originating proceedings in themselves. Perhaps my right hon. and learned Friend will be disposed to make some comment about that. I feel that it is not necessary for me to enlarge upon it now. I think that the redrafting is an improvement, if only slight, on the original wording, and I hope that the House will accept it.

The two other amendments are consequential. No. 5, relating to Clause 7, clarifies the part of that clause referring to Scotland to the same extent and with the same object as Amendment No. 2 in relation to England and Wales. Amendment No. 6 makes similar provision for Northern Ireland.

The Lord Advocate

My hon. Friend invites me to comment on the question put by the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray)—this is col. 114 of the OFFICIAL REPORT of the Standing Committee—as to how proceedings under subsection (5) could be originating proceedings. I think that the position is fairly clear, and probably clearer now than it was before. If the court has jurisdiction under this clause, even if thereafter the circumstances giving that jurisdiction fly off, provided that there is no break in the chain other actions or cross-actions may arise. If the hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer) wishes me to elaborate on that I shall be glad to do so. I think that the new drafting in the amendment makes the matter rather clearer than the original subsection (5).

Mr. Peter Archer (Rowley Regis and Tipton)

The right hon. and learned Gentleman invites me to comment, and I am glad to do so now, principally because these are among the last amendments relating to the English courts, and I should hesitate to intervene on matters relating to the Scottish courts.

I take this opportunity to convey to the House the apologies of my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin), who is unavoidably absent today. He was most disappointed at not being able to be present, and I am sure that the hon. Member for Perth and East Perthshire (Mr. MacArthur) will understand that no discourtesy is intended either to him or to the House.

This is not a political Bill, and I hesitate to come in at this late stage to offer thoughts on these highly technical matters which have occupied so many able minds over a long time, but, as I am on my feet, may I say a word about the problems of draftsmanship. I noted what the Lord Advocate said a minute ago, and, coming to the matter afresh, I am persuaded by his argument. I cannot speak for my hon. and learned Friend the Member for Edinburgh and Leith (Mr. Ronald King Murray).

That we occasionally encounter these questions of draftsmanship seems to be unavoidable. The principal purpose of the Bill, a social purpose, was expressed on Second Reading by my hon. Friend the Member for Newark (Mr. Bishop) in these terms: The Bill will be welcomed as another addition to the considerable line of legislation in recent times which has recognised the modern view of the status of women in our society."—[OFFICIAL REPORT, 16th February 1973; Vol. 850, c. 1631.] In that process, we shall be reversing certain social habits and modes of thought which lie deep in the history of our society. It is not surprising that our law reflects those habits and modes of thought, not just in its general rules but in its interstices, in its nooks and crannies. Inevitably, therefore, when we seek to reverse those processes, a number of anomalies and logical problems arise.

I express the gratitude of the Opposition to the Law Commission for having accepted that the need to grapple with those intellectual problems is a small price to pay, and I congratulate the hon. Member for Perth and East Perthshire on his initiative.

Amendment agreed to.