HL Deb 11 July 1935 vol 98 cc288-302

Order of the Day for the Second Reading read.

THE EARL OF FEVERSHAM

My Lords, the subject of this Bill was debated in your Lordships' House as recently as last February. On that occasion the noble Lord, Lord Arnold, called your Lordships' attention. to the Report of the Departmental Committee which had investigated the question why so many people are sent to prison every year by courts of summary jurisdiction for failure to pay fines, rates, and sums due under wife maintenance orders and affiliation orders. In a speech for which we are greatly indebted to the noble Lord, he drew, if I may be permitted to say so, in a very clear and concise manner attention to the principal facts and considerations contained in that Report. He then pointed out that the Committee had come to the unanimous conclusion that it would be practicable by certain amendments of the law to reduce substantially the number of imprisonments.

There can be no doubt as to the importance of this subject. In a year about 20,000 people are sent to prison in England and Wales for failing to make the money payments which are dealt with in this Bill. Over 11,000 people are sent 'to prison for failure to pay fines, 3,600 for failure to pay under wife maintenance orders, 2,400 for failure to pay under affiliation orders and 3,000 people for failure to gay rates. As the noble Lord, Lord Arnold, has already told your Lordships, the total number of imprisonments in a year from all causes is 53,000, and therefore your Lordships will appreciate that more than one-third of the total number of imprisonments occur, not because offences have been committed for which imprisonment is the only appropriate penalty, but because there has been failure to comply with the orders of a. court of summary jurisdiction for payment of a sum of money.

I believe that it is unnecessary for me at this stage to enlarge upon the evils attendant on the great number of imprisonments for failure to pay money. The noble Lord's request that early steps should be taken to implement the recommendations of that Departmental Committee was echoed by the noble and learned Lord, Lord Merrivale, the noble Marquess, Lord Reading, and the most reverend Primate the Archbishop of Canterbury. The unanimity of opinion expressed in your Lordships' House on that occasion has greatly facilitated the task of the Government in dealing with this problem, and the noble Lord, Lord Arnold, will be glad that they have decided to introduce without delay a measure to give effect to the views expressed on that occasion in all parts of your Lordships' House. But perhaps it may be well for mc to explain the provisions of the particular clauses contained in the' Bill in more detail than is customary for a non-controversial measure owing to the fact that this Bill has come to your Lordships' House before being introduced in another place, and to the essential importance of having the provisions of the Bill understood by those who adjudicate in petty sessional courts.

The principles upon which the Committee's Report is based are comparatively simple, but in order to give effect to those principles it is necessary to amend the existing law relating to the procedure of courts of summary jurisdiction in a number of details. A great deal of consideration has been given to the question as to how to effect these amendments in as clear and short a way as is practicable, and the Bill before your Lordships embodies. I think, the essential proposals of the Committee so far as they relate to courts of summary jurisdiction. The principles running through all the Committee's recommendations are, first, that persons should not be imprisoned for default in payment of moneys unless and until the minds of the justices have been specifically directed to the question of imprisonment; and secondly, that as regards rates and sums Clue under wife maintenance orders or affiliation orders, it should be made clear that the courts ought not to commit to prison if, after inquiry as to the means and circumstances of the defaulter, they come to the opinion that his default is not due to wilful refusal or culpable neglect. To give effect to these general principles it is necessary to deal separately with the law relating to fines, to wife maintenance and affiliation orders, and also to rates.

As regards fines, the Bill proposes in accordance with the recommendations of the Committee to give effect to the principle that imprisonment shall only be ordered after the mind of the court has been specifically directed to this question, by providing in Clause I that when a fine is imposed and time is given for payment there shall at the time of the conviction as a general rule be no term of imprisonment fixed in default, but that if default occurs the defaulter shall be brought before the court again so that the justices may have the opportunity of reviewing his circumstances before deciding whether to send him to prison. It is, of course, necessary, as the noble Lord, Lord Arnold, pointed out in his speech on his Motion, to give some discretion to the courts to make certain exceptions to this general rule and these exceptional cases are covered by the proviso to Clause 1. The noble Lord referred to such specific cases as habitual drunkards and vagrants. As regards the great majority of cases where fines are imposed the court expects the fines to be paid and does not, when imposing a fine, contemplate the possibility of imprisonment. In over 97 per cent., of the cases this expectation is justified. Your Lordships will remember that the total number of persons fined, according to the last available statistics in 1932, was 437,000. In the residue of cases, just below 3 per cent., the defendant is sent to prison as a result of the issue of a commitment warrant signed by a single justice who may know nothing about the case except that the fine has not been paid.

Under the procedure proposed in Clause 1 it would be impossible for a position to arise in which the justices may have to sign commitment warrants without full information about the circumstances of the persons against whom those warrants are directed. The new procedure proposed under the Bill will be when default occurs to bring the defendant before the court so that the court may consider, not, of course, the original conviction, but whether the defendant has made reasonable efforts to pay the fine, whether longer time should be allowed to him, and what is the appropriate penalty if he fails to pay. The court will also have an opportunity at this stage, if thought fit, to place the defaulter under supervision in accordance with the provisions of Clause 5, a clause on which with your Lordships' permission I will make some comment later.

One result of the new procedure proposed in Clause 1 is to make it necessary to provide special machinery for dealing with defendants who reside at some long distance from the court at which they have been convicted. Motoring offences, as your Lordships know, are frequently committed in places far removed from the defendant's residence. Under the present law if a man living, say, in York is fined for an offence in London—and if the offence were of a minor character he would probably send a letter to the court asking to be excused attendance—the procedure, if he fails to pay, would be for the London court to issue a warrant of commitment to prison and for the York police to execute that warrant. Under the new procedure proposed in Clause 1 it would obviously be impracticable to bring the defaulter from York to London for this purpose, for he has to appear before the court in order that his means may be ascertained. Clause 2 therefore provides machinery by which in such case the defaulter can, if necessary, be brought for such an examination before the court in the district in which he is residing. Obviously, my Lords, examination as to a defaulter's means can be more effectively conducted in his own district. It is perhaps worth mentioning here that if in such a ease the fine is ultimately paid it will be transmitted to the clerk of the convicting court.

Clause 3, which provides for proper notification being given to persons who are fined, is intended to bring the practice of all courts up to the standard of the best courts. Such notices as are provided for in this clause are specially important in the case of persons who are fined for minor offences in their absence. It is the practice of some clerks to justices to send no notification of a fine to an absent defaulter unless he has forwarded a stamped addressed envelope for this purpose, and needless to say the number of defendants who take this precaution is very small. Cases occur sometimes where an offender receives a summons on which there is a note that if he does not attend and wishes to hear the result he must send a stamped addressed envelope to the clerk. The offender does not attend the court and does not send a. stamped envelope. He is fined in his absence and hears no more of the matter until a policeman appears with a warrant of commitment to prison if the money is not then forthcoming he is liable to be lodged in gaol. The noble Lord, Lord Arnold, in the previous debate, quoted a case of a lorry driver who was charged with obstruction. It was a technical obstruction on the highway. He heard nothing of the results of the proceedings taken in his absence and remained in ignorance until a police officer arrived with a commitment warrant and he was taken to gaol. Everyone will agree that the law should be so framed as to prevent cases of this kind occurring, and Clause 3 will have that effect.

Clause 4 provides for detention for one night in a police station of persons who fail to pay small fines. Under the existing law imprisonment cannot be ordered for a shorter period than five days, and courts have power to commit to certified police cells for detention for a period not exceeding four days. Few police authorities, however, have applied for the necessary certificate that their station is suitable for detention for so long a period as four days. Accordingly under the existing law imprisonment has frequently to be ordered although it may be an excessive and inconvenient penalty. For example, men who have been fined, say, 5s., for some minor offence have to be sent up from, say, Brighton to Wormwood Scrubs for a week's imprisonment. Again, young fellows fined for some small offence, such, for example, as damage to a street lamp, have to be sent to prison for a week because the courts have no other method of enforcing the law against those who defy their authority. In many eases where small fines are imposed and are not paid it is essential to do something to show that the law cannot be disregarded with impunity; and Clause 4, authorising detention for a period not exceeding one night in a police cell, will give the courts a useful power of dealing with these minor cases. The fact that the power is in existence and can be used as a threat will frequently, no doubt, make it unnecessary to carry out the threat.

Clauses 5 and 6 make valuable extensions to the existing law relating to the powers of the court to place under supervision a person who has been given time to pay a fine. Under the existing law, where a young person under 21 is fined and given time to pay, courts have power to place him under the supervision of a suitable person who shall "advise and befriend him with a view to inducing him to pay and thereby avoid imprisonment and shall if required report to the court as to his conduct and means." Very little use has hitherto been made of this power, partly owing to the fact that supervision orders can under the existing law be made only at the time when the fine is imposed and cannot be made later when a default occurs; and partly owing to the fact that many courts do not think this duty of supervision is suitable for a probation officer and there is no one else available to undertake the work. The Committee expressed the opinion, with which I entirely agree, that the probation officer is clearly a suitable person to undertake this work, not only because of his training and experience but also because of his position of authority under the court which imposes the fine. It is recognised that in many areas the probation officer is already fully occupied and cannot undertake more duties, but that is not a reason for refusing to make use of this valuable method of supervision. It is a reason for strengthening the staff of probation officers and making such arrangements, either by turning a part-time probation officer into a full-time officer, or by appointing additional officers, as will enable the court to have assistance from a trained social worker in all cases where such assistance is desirable.

Clause 5 amends the existing law by enabling the courts to adopt the method of supervision not only at the time when the fine is imposed but also on a later occasion when default occurs, and also by enabling them, if they think fit, to use the method of supervision not only for young offenders but also for older defaulters. Clause 6 imposes an additional check on the imprisonment of young persons under twenty-one. Everyone agrees that imprisonment for young persons ought not to be adopted if any other method is practicable. The importance of this principle has recently been emphasised in weighty words by the Lord Chief Justice in a recent lecture of the Clarke Hall Fellowship. The clause will make it impracticable for the justices to send persons under twenty-one to prison for failure to pay fines unless the method of supervision has been tried or there is some special reason for not adopting this course, which reason must be stated by the justices in the warrant.

I now turn to the provisions of the Bill affecting wife maintenance and affiliation orders. Under the existing law, if a man fails to pay the weekly sum which he has been directed to pay under such orders, the justices may, "if they think fit," commit the defaulter to prison. Most justices, in the exercise of this wide discretion, consider how far the defaulter is to blame for his failure, but there is no legal requirement that they shall do so. The Committee regard this as a serious defect in the existing law, and it is desirable to lay down by Statute the policy which justices ought to pursue in such cases. While on the one hand it will be agreed that only those defaulters whose failure is culpable ought to be sent to prison, it is on the other hand essential to avoid placing on the woman the onus of proving that the man has been guilty of wilful refusal or culpable neglect. In framing Clause 8, account has been taken of both these -considerations. Its effect will be to require the justices in every case to consider whether the man's failure to pay is due to wilful refusal or culpable neglect without placing on the woman the onus of proving culpability. If, however, the justices, after reviewing the circumstances, form the opinion that there has been no culpability, the clause makes it clear that in such a ease they must not exercise the power of imprisonment.

Clause 10 of the Bill deals with rate defaulters, of whom about 3,000 are sent to prison every year. Very few of the large numbers of persons summoned for non-payment of rates appear in answer to the summons. The next step is for the justices to issue a distress warrant. In most cases payment is made on the issue of this warrant, if, however, the warrant is returned marked "No effects," or "Insufficient effects," application is then made to tile justices to issue a commitment to prison. Most of those who have not paid on the issue of the distress warrant pay on the issue of a commitment warrant, but in the residue of cases the defaulters are taken to prison. In a proportion of these cases, had the defendant appeared before the justices and represented his circumstances, he would have been given more time and possibly have been excused payment or part payment. This clause will enable and require the justices, in those cases where a distress warrant fails to produce the money, to compel the defaulter's attendance before the court. In many cases the issue of process for this purpose will no doubt result in the payment of the sum due. In the residue of cases the justices will have an opportunity of examining the defaulter as to his circumstances before deciding whether they will commit him to prison.

Under the existing provision of the Rating and Valuation Act the justices must not commit a defaulter to prison if he shows that his default is due to circumstances beyond his own control. The Committee, however, felt that it is undesirable to place on these defaulters, many of whom are ignorant of legal procedure, the onus of proof that default is due to circumstances beyond their own control. At the same time, if the onus of proof is placed on the rating authority, it would often be impossible for the rating authority to prove that default is due to wilful refusal or culpable neglect. Clause 10, accordingly, is based on the same principle as has been adopted with regard to defaulters under affiliation and maintenance orders. It requires the justices to consider in every case whether the failure to pay is clue to wilful refusal or culpable neglect, but does not place on the rating authority the onus of proving culpability. If, however, the justices, after considering the defaulter's circumstances, come to the conclusion that he is not to blame for his failure, then the clause will prevent them issuing a warrant of commitment to prison. Clause 12 enables the justices to investigate the circumstances of the various classes of defaulters to whom the Bill applies, and it will often be an advantage to them to be able to accept as prima facie evidence a written statement from the employer as to wages.

I hope I have made it clear by this review of the provisions of the Bill that it gives effect to the two main principles on which the Departmental Committee laid emphasis. First, it provides that before a defaulter is sent to prison for failing to make any of the money payments dealt with in the Bill, the justices shall review his circumstances, and if they decide to commit him to prison they shall only do so after their attention has been specifically directed to the question of imprisonment. Secondly, the Bill provides that in wife maintenance and affiliation cases, and in rate cases, imprisonment shall not be ordered if the court, after reviewing the defaulter's circumstances, form the opinion that his failure is not due to wilful refusal or culpable neglect.

The question may be asked whether the Bill will not impose additional and unnecessary work on the courts, and perhaps some additional expense. The answer is that it may impose additional work on some courts, but that such additional work is by no means unnecessary. As the findings of the Committee show, evils are liable to occur because the existing system does not allow sufficient opportunity to the courts to deal with the issue of commitment warrants in a judicial manner. The issue of a warrant ordering a man's committal to prison is a very serious step, and no one ought to begrudge time spent by the courts in preliminary consideration before taking this step. If it be true that some courts are so busy that the adoption of the additional procedure provided for in the Bill will cause serious inconvenience to the arrangement of their work, the answer is that the sittings of a court of justice ought to be arranged so as to enable all the steps to be taken which are necessary for the proper administration of justice.

A procedure which is desirable in the interests of justice must not be shortened in order to suit the convenience of the court; on the contrary, the time of the court must be arranged so as to suit the requirements of justice. Reasonable despatch in the conduct of business is no doubt a virtue; but it is possible that in some of the busy courts of summary jurisdiction there is a danger of over haste, with the result that it may be difficult in all cases to be certain that justice is done, and still more difficult to convey to defendants the impression that justice is done. Even if a man has a poor case it is desirable that he should be given time and opportunity to state it fully. To make certain that justices shall fully consider all cases where a question of imprisonment for non-payment of money arises is the main object and effort of this Bill. I am afraid that I have taken up much of your Lordships' time in explaining in some detail the provisions of this Bill, hit as it is hoped to complete the Bill in all stages, both in this House and another place, before we rise, I think that my doing so will facilitate that end.

Moved, That the Bill be now read 2a.—(The Earl of Feversham.)

LORD ARNOLD

My Lords, I should like on behalf of myself, and of those with whom I am associated on these Benches, to express our deep gratitude to the Government for bringing in this Bill. It is a measure which, I am sure, will be warmly welcomed by men of all Parties and by the whole country. The noble Earl has moved the Second Reading in what we shall all agree was a most comprehensive speech of great lucidity. He had a large amount of ground to cover, and he has done so most exhaustively. His full exposition will be of great value to your Lordships' House and to the country.

The noble Earl referred to the debate which took place here on February 27 last, when I had put down a Motion dealing with the whole problem, and on that occasion complete unanimity was achieved in this House. The noble Earl was good enough to say kind words about my speech and my Motion, and I greatly appreciate what he has said, but I do riot take credit to myself for the unanimity achieved on that occasion. It. was achieved by the compelling human appeal of this problem. I found, myself, that any language which I had used was surpassed in strength by great legal authorities like the noble and learned Lord, Lord Merrivale, and the noble Marquess, Lord Reading. They emphasised in the strongest possible terms the need for reform, and the urgent need for reform, in order that the present system, which has continued far too long, should be brought to an end. Also, as the noble Earl has said, the most reverend Primate on that occasion spoke forcefully in the same sense, and following that debate the Press of the country was absolutely unanimous in saying that something ought to be done. In particular there was a powerful article in The Times not very long after the debate in this House.

The Government on that occasion, through the noble Earl who had the debate in charge, promised to take the matter into favourable consideration. They have done so, and as a result they have now brought forward this Bill. It is the urgent need for reform which has caused the Government to do this, and I wish to say that as far as we on these Benches in this House are concerned, we will do all that we can to facilitate the smooth and swift passage of this Bill through your Lordships' House. The noble and learned Marquess, Lord Reading, spoke in a similar sense for the Liberal Peers, 'and noble Lords on the other side spoke also in a similar sense. Therefore I think we may take it that the quick passage of this Bill through your Lordships' House is assured, and speaking with some confidence—and I have grounds for what I say—I believe that the same thing will happen in another place and that the Bill will also pass through there rapidly.

It is, as the noble Earl pointed out, amazing and Appalling to think that altogether, if we add to the 20,000 or so persons imprisoned under the three heads which he named to your Lordships those who are imprisoned through failure to pay County Court debts, who usually seem to number between 3.000 and 4,000 persons a year—and this Bill does not deal with them because the Committee's Report did not deal with them—we arrive at the result that pretty nearly one half of the people in the prisons in the course of a year are there because they are unable to find a sum of money which for the most part is a very trifling amount. That is what The Times in its article referred to as a "blot on our civilisation." Those are strong words. The Times said that it is an abuse of punishment that, because these persons are unable to find sum of money which for the most part is quite trifling, they should have inflicted upon them the terrible penalty of imprisonment.

As the Committee said in their Report this Bill should reduce by many thousands a year the numbers of those going to prison for failure to find money under the three or four heads with which the Bill deals. I will venture to suggest that when the Bill is fully in operation it may well be that this measure will keep out of gaol perhaps somewhere about 10,000 persons a year who would otherwise be put in gaol for these quite minor offences, the actual offence being the inability to find a trifling sum of money. When we think of the incalculable saving in human suffering, not only for the people involved but for their relatives and friends, it becomes perfectly clear that there is an overwhelming case for Parliament to do something.

In particular I rejoice that this Bill deals with the question of imprisonment for rates. I may be too optimistic, but I think that the clause which is in this Bill should to a very large extent bring to an end imprisonment for rates. Every year somewhere about 3,000 people—which means on the average about ten persons a day leaving out Sundays—are taken to prison because they are unable to pay their rates and in the vast majority of cases, practically all cases, not through any fault of their own but through sheer poverty. I believe it is the case that when the Departmental Committee investigated these matters there was not one single Prison Governor who gave evidence who thought that imprisonment for non-payment of rates was justified. Cases have been known of rate collectors actually paying the rates out of their own pockets so as to prevent some poor person being haled off to gaol. That may be very creditable to the rate collectors, but it is descreditable to the system which brings about such an extraordinary state of things.

There has been a book published in the past month by Dr. Unwin, who is the head of Cambridge University Settlement in South London. He has been investigating some of these cases. There was one particularly poignant case of an old age pensioner, a poor man nearly blind, trying to find things and unable to do so. It was proved, according to this book that after he had paid his rent, he and his wife had 14s. a week to pay for food, coal, light, heating and rates. He could not do it, and he was taken off to gaol. It is time that that kind of thing was stopped, and this Bill will stop it. Other cases which I might bring before your Lordships, but I do not think it necessary, will be stopped by this Bill. Suffering of this kind, the result only of the crime of poverty, ought to be brought to an end.

Let me in conclusion quote from The Times article: In and out of prison goes constantly throughout the whole year a steady stream of men and women who have not been guilty of any crime, as that term is ordinarily understood. Then, referring to the debate in your Lordships' House in February, and urging legislation, they say: Meanwhile the imprisonments go on as before and will continue until those steps are taken which humanity demands. Well, thanks to the Government for bringing in this Bill, those steps are being taken now, and there is every hope that before we adjourn for the Autumn Recess this Bill will be on the Statute Book. It is very difficult to see on what grounds the Bill can be opposed or criticised. If it is said by some that the Bill might go further, that applies to every Bill I have ever heard of. It goes a long way. It does a great deal, and incorporates a very great percentage of the recommendations of the Departmental Committee. If it went further—and I can quite see the Government's point—there would be some risk perhaps of its becoming controversial, and, if it were controversial, at this stage of the Session it could not pass.

I do not think, either, that the Bill can be criticised on purely legal grounds. I say that for two reasons, and in the first place because the Departmental Committee, on whose findings the Bill is based, contained gentlemen of eminent legal qualifications and gentlemen who have had profound experience of these various problems. Then again, this Bill has been prepared in the Home Office, and the Home Secretary, Sir John Simon, is one of the greatest lawyers of our time. I think we may take it that it is scarcely possible to cavil from the legal point of view at a Bill for which he has in a sense that special responsibility. I cannot think that any noble Lords in your Lordships' House, or any honourable members in another place, would take upon themselves the responsibility of killing what I will call this merciful measure, which will do so much to help those who cannot help themselves. This is pre-eminently a Bill to help the helpless. The noble Earl who introduced it has in the course of his life shown practical sympathy with those unfortunate human beings who have come within the measures of the law. He has devoted his time and abilities from time to time to helping them, and I think it will afford him peculiar satisfaction that he is in charge of this Bill which will do not a little but a great deal to lessen human suffering.

LORD SNELL

My Lords, it must be a source of some satisfaction to your Lordships that this much needed and unduly delayed reform had its origin in your Lordships' House. I had the privilege in December, 1932, of introducing this matter to your Lordships' attention, and I have to admit at once that the Gov-eminent, as soon as the facts were put before them, responded immediately to my request that a Committee of Investigation should be established. That Committee was set up in due course. We have watched the progress of this inquiry with a good deal of anxiety, and waited impatiently for the Bill that is now presented to your Lordships' House.

I do not need to recite any of the details or to say any further word about it except just this, that especially to those of us who sit on these Benches it is a source of anxiety, tragedy almost, that the peak of unemployment in the nation always corresponds with the peak of those who go to prison for nonpayment of debt in various forms. There is something peculiarly odious in the fact that the torture of prison is added to the agony of unavoidable unemployment. Because we think this measure will help to remedy that, we promise to give the Government every possible support we can to get it passed into law this Session. This year is one when we ought to rejoice to remove from the Statute Book some of these limitations which mean suffering to our fellow human beings. If this Bill is passed, as I pray it will be passed—and I appeal to your Lordships to give it all the assistance you can—the result will be that thousands of decent people will be saved from suffering in the future.

THE MARQUESS OF LONDONDERRY

My Lords, I am sure it must be very gratifying that this measure has met with so much approval on all sides of the House. Your Lordships will remember that this subject has been brought up on more than one occasion, and it was brought up on the initiative of the noble Lord who sits opposite. While I cannot give him the full credit for the legislation which has been brought into being, still I should like to pay tribute to the manner in which he introduced the subject, and I feel that he, as much as anybody else, has the right to feel that he has had a hand in the enactment, as will shortly be the fact, of this legislation.

The noble Lord who has just sat down has spoken on this matter in terms which we should expect of him. This will be a measure which will, I think, be a benefit in all parts of the country. I should like also to endorse what the noble Lord opposite said, that he was gratified to see my noble friend Lord Feversham in charge of this Bill. My noble friend has occupied himself for many years in these matters, and I know he is feeling great satisfaction in that he has the opportunity of piloting this measure through your Lordships' House. I sincerely hope it will rapidly pass through all its further stages in this House, and that it will have an equally smooth passage in another place.

On Question, Bill read 2a, and committed to a Committee of the Whole House.