COURTS (EMERGENCY POWERS) (AMENDMENT) BILL. [H.L.] (Hansard, 4 June 1940)

§ THE LORD CHANCELLOR (VISCOUNT SIMON)

My Lords, after the profoundly moving story of heroism and sacrifice set before us by the Leader of the House, it falls to me to move the Second Reading of this Bill, and I think I can do this in very few words. This is a Bill to amend the original Courts (Emergency Powers) Act, 1939, which was one of those Acts which passed through all their stages in both Houses as emergency measures on September 1 last on the eve of the outbreak of war. The general effect of the Act of 1939 was to empower the Courts to restrain the putting into operation of remedies available to judgment creditors, landlords or mortgagees in cases where the appropriate Court was of opinion that the persons liable to satisfy the judgment or order, or to pay the rent or other debt, was unable immediately to do so by reason of circumstances directly or indirectly attributable to the war. Your Lordships will observe therefore that it is not that the creditor is restrained from instituting proceedings; he may get from the Court the judgment or order to which he is entitled, and of course there are cases in which remedies like the levying of distress are normally available for default in payment of rent without having to get the leave of the Court. What the Act of last year did was to secure to the debtor the protection that the Court would not allow remedies to be put into force against him if it considered that there was an inability to pay which arose out of war conditions.

What then is the reason for seeking to amend the Act of last year? It is this. The Act requires amendment because in its actual working it has not in all cases produced the protection that was intended. In the case of non-payment of rent, for example, or of non-payment of the interest on a mortgage, it was undoubtedly intended by Parliament that the Court should consider the circumstances of the debtor at the time when the landlord or the mortgagee proposed to exercise his ordinary legal rights. It was undoubtedly intended by Parliament that the Court at that stage should decide, by reference to the actual circumstances then existing of the tenant or mortgagee, whether leave to distrain or to re-enter should be given or withheld. But there has arisen a practice by which it frequently happens that 464 on the first occasion, when a periodical payment is due the Court withholds leave to enforce the remedy, but attaches a condition, and the condition sometimes takes the form that further payments, future periodical payments, must be paid promptly. The object of the present Bill, as your Lordships will see from Clause 1, is to secure that this sort of condition shall not be attached to the order of the Court, but that the Court should be free to consider the actual circumstances if and when a further default occurs, rather than bind itself beforehand as to the course to be taken. I think there is no doubt that in making this new provision we shall not be varying the intention of Parliament in the original Act of last year, but we shall be securing that the real intentions of the Legislature will be effectively secured.

Clause 2 deals with a further point—quite a separate point—on which some difficulty has arisen, not so much because actual amendment of the law is needed, as because doubts have arisen as to the course which the existing law intends to be followed. Your Lordships will notice that Clause 2 begins: "It is hereby declared for the removal of doubt…." and the doubt is this. It has been questioned whether, when the Court is asked to decide whether leave should be given to enforce the discharge of a particular liability of the defendant on the ground of his circumstances in war time, the Court is at liberty to look at all his different liabilities, or whether, on the other hand, it must only look at the particular claim which is then and there brought before it. Well, it is evident that the Court may be in a difficulty, for the right order to make must depend not upon one particular debt, but upon a survey of the whole of the different circumstances. To give an illustration, it is no good expecting the Court to decide wisely whether a man shall be made promptly to pay the interest on a mortgage debt unless the Court is informed what are the other liabilities which burden the shoulders of the man, who may be serving as a private in the Forces, and this Clause 2 is simply for the purpose of making it plain that the Court may consider all those circumstances. The clause will remove all doubts by giving express power to the Court to take into account other liabilities besides the particular liability that the party is claiming to 465 enforce. The remaining clause, Clause 3, deals with matters of minor importance, and I do not know that I am able to explain them to your Lordships any more clearly than by inviting you to read, if you so desire, the text of the clause. I hope your Lordships will accept this amending Bill and give it a Second Reading as carrying out the intentions which both Houses of Parliament had when the Act of 1939 was passed. The present Bill merely secures that those purposes will be more effectively and completely attained, and at the same time makes certain minor adjustments which will secure the smooth working of the earlier Statute. I beg to move that the Bill be read a second time.