§ 3.26 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Lord Crook.)
§ On Question, Motion agreed to.
§ House in Committee accordingly:
§ [The EARL OF DROGHEDA in the Chair]
§ Clause 1 [Increase in amounts payable under Married Women (Maintenance) Acts, 1895 and 1920]:
LORD MESTON moved to add to the clause as a new subsection:
() For the purposes of this Act a court of summary jurisdiction shall have the same powers as the High Court in the matter of ascertaining the income of either or both the spouses.
The noble Lord said: This matter arises in this way. In a proper case at the present time—and this will also apply when the Bill becomes law—any man may appear before a magistrates' court and have an order made against him. But
in practice, at the present time, the only men who appear before magistrates' courts in this connection are men whose incomes are comparatively small, and there is no difficulty in ascertaining the amount of their income. When this Bill becomes law it is likely that a number of men whose incomes are £1,000, or even £1,500, a year will appear before magistrates' courts and have orders made against them for the maintenance of their wives or their children, as the case may be. I should like to know how a magistrate is to satisfy himself as to the accuracy of the husband's income in those cases.
§ I do not want to go into details but in the High Court, of course, there is a procedure by way of examination as to means, swearing affidavits and so forth, whereby the court is enabled to ascertain the incomes of the spouses with reasonable accuracy. But at the present time there is no such procedure in the magistrates' courts, and I feel that for the purposes of this Bi11 the magistrates should be given exactly the same powers as those which are accorded at the present time to the registrars of the Divorce Division of the High Court. I beg to move the Amendment.
Page 1, line 22, at end insert the said subsection.—(Lord Meston.)
§ THE LORD CHANCELLOR (VISCOUNT JOWITT)
This is a Private Member's Bill, and the Government desire that the House should have a free hand in dealing with these matters; it is not for me to attempt in any way to dictate. On the other hand, I think it would be useful if I put before the Committee the view of the Home Office, which is that we should not accept this Amendment.
The powers of the High Court which the noble Lord who moved this Amendment has in mind are obviously the Matrimonial Causes Rules of March 25, 1947, in particular, Rules 48 and 52, Rule 48 requires the husband, in cases where alimony or maintenance of children is claimed, to file an affidavit setting out full particulars of his property and income. Similar provision, of course, is made as to the filing of an affidavit by the wife, Acre it is the wife who is served with a notice of an application for alimony or maintenance. 343 Rule 50 provides that the wife may file an affidavit in reply, and Rule 52 provides for a preliminary investigation by the registrar in the presence of the parties or their solicitors, and gives the registrar power to order the attendance of the spouses or any other person for the purpose of being examined or cross-examined, to take the oral evidence of witnesses and, at any stage of the proceedings, to order the discovery and production of any document or call for further affidavits.
The procedure for filing affidavits is no better than the procedure in the magistrates' court, under which oral evidence of both parties can be heard as to the amount of their means. It is already a requirement of the existing law that, in fixing the amount to be paid under a maintenance order, the magistrates shall fix such amount within the prescribed maximum as the court—and here I quote:shall, having regard to the means both of the husband and wife, consider reasonable.The provision as to the discovery of documents is no doubt useful in the type of case which comes before the High Court, but it would not be of much use in the general type of case which comes before the magistrates; and as often as not there will be no documents relating to the income of either of the parties.
An Amendment to this clause was moved on the Committee stage in another place, to the effect that in considering the means of the husband for the purpose of making an order the court should have the right to ask for, and obtain collaboration from, official and other sources regarding the income of the husband. That Amendment was withdrawn after discussion in the course of which objection was raised to the Amendment on the ground that it would permit of the court's having the right to obtain information from the income tax authorities. It has sometimes been suggested that the magistrate should have power to require the husband to produce a certificate of his earnings from his employer, but that seems to us to be objectionable because it would disclose to the employer the man's matrimonial difficulties, and might possibly have an effect upon his employment. Since both parties are present before the magistrates, when the question 344 of their means is considered with a view to an order, any statement which is made by one of them, and which the other thinks is untrue, can be challenged there and then, and steps can be taken to call further evidence if required.
In addition, Section 5 of the Summary Procedure (Domestic Proceedings) Act, 1937, gives power to courts in matrimonial proceedings to request a probation officer to conduct an investigation into the means of the parties to the proceedings, and to direct him to report the result of his investigation to the court. The section provides that the probation officer may either make a statement in writing, which must be read aloud in the presence of the parties, or make an oral statement to the court, and that the parties are to be given an opportunity of objecting to anything in the statement. Where the objection is made the probation officer must be required to give evidence on oath as to his investigation.
The provisions of this section were brought to the notice of all courts of summary jurisdiction by a Home Office circular in September, 1937. It was pointed out that it is important that the courts should have the fullest possible information as to the means of the parties concerned, and that the new procedure placed in the hands of justices a valuable instrument for ensuring that orders for periodical payments are just and equitable in amount, having regard to all the circumstances. The hope was expressed that the services of probation officers would be fully utilised for this purpose. This provision of the Act of 1937 which has been commended to magistrates' courts, is sufficient to enable the necessary information to be obtained by the magistrates as to the means of the parties. Moreover—a matter of considerable importance in this class of case—it enables the information to be obtained discreetly and in a way which will not cause prejudice to either party in their employment or business. For these reasons, we advise the Committee that it is undesirable to accept this proposal to transfer to the magistrates' courts a procedure which is perfectly proper and useful in the High Court—which deals, in the vast majority of cases, with a wholly different set of circumstances.
§ LORD CROOK
I should like to say a few words on behalf of the promoters 345 of the Bill. The attitude which I propose to take on these Amendments is mainly to secure the original objects of the Bill, which were simply to secure an increase to £5 in the amount of an order which may be made in favour of the woman, with an increased amount for the child. We have no desire in this Bill to make large-scale changes in the law; on such matters we are anxious to be guided by those better versed in this subject than we are. We are grateful for the advice given by the noble and learned Viscount the Lord Chancellor, and are perfectly prepared to accept it; and so far as I am responsible for the Bill in this House I would ask your Lordships to accept the view which the noble and learned Viscount put forward.
I wish to thank the Lord Chancellor for his observations. I was only trying to make a suggestion which might be helpful, but it seems to me that there are a good number of reasons why the Amendment should not he accepted, and I beg leave therefore to withdraw it.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ 3.35 p.m.
§ LORD CROOK moved, after Clause 1, to insert the following new clause:
§ Provisions as to separation agreements
§ ".—(1) In determining for the purposes of section four of the Summary Jurisdiction (Married Women) Act, 1895, whether a husband has been guilty of wilful neglect to provide reasonable maintenance for his wife or her infant children, payments made by the husband shall not be deemed to be sufficient to provide such reasonable maintenance by reason only that they are made in accordance with an agreement made between the husband and the wife before the commencement of this Act.
§ (2) Where an order under paragraph (c) of section five of the Summary Jurisdiction (Married Women) Act, 1895, or under section one of the Married Women (Maintenance) Act, 1920, is made in pursuance of an application under section four of the first-mentioned Act, and the husband is liable, in pursuance of any agreement, whether made before or after the commencement of this Act, to make payments to or for the benefit of the wife or any child for whose maintenance provision is made by the order, the liability of the husband tinder the agreement shall be treated as discharged to the extent of any payments made in pursuance of the order."
§ The noble Lord said: I beg leave to move the Amendment standing in my 346 name on the Marshalled List. It has been put down in order to deal with an outstanding point and to remove what some people regard as a possible anomaly. The clause as it stands has been drawn by co-operation between the promoters of the Bill and the Home Office and, broadly, deals with the position of those who have made voluntary agreements. Your Lordships may know that many couples dislike the publicity involved in going to court to secure an agreement, and accordingly they enter into a voluntary agreement outside the court, either written or verbal, for an amount within the limits laid down in the present Act—or perhaps an amount in excess of that. The point that has been raised is whether the existence of these agreements may not cause the woman to lose a certain amount of the benefits which this Bill proposes to give to women in general.
If she goes to a magistrate the plea must be that her husband is failing to maintain her, and it is not at all certain that the existence of an agreement which has been made voluntarily might not be held against her. The position is stated by my noble friend Lord Merriman in the case of Morton v. Morton (1942 All England Law Reports, page 273) from which I quote:
I am content to des with this case on the basis that a deed like this, providing for periodical payments, the obligation to make which has been punctually performed, is very strong evidence indeed against the complaint of wilful neglect to provide maintenance.
In view of that decision the promoters of the Bill and the Home Office have felt that it might be difficult for the woman to go to the magistrate and say: "I am getting all I am entitled to under the agreement. I entered into with my husband, but I now ask you for more." Accordingly, the Amendment on the Paper, by the first subsection, empowers the court to look at the position as a. whole and, by the second subsection, to deal with the position which would arise if the court made an order in excess of the amount which the woman was receiving; it allows the ore to be included with the other. I beg to move.
After Clause 1 insert the said new clause.—(Lord Crook.)
§ THE LORD CHANCELLOR
This is a question on which the Home Office 347 have no definite views, except to point out that it is a very serious matter. I should have thought that where the husband and wife have agreed as to the amount to be paid, by a voluntary agreement freely given and so forth, it is, save in the most exceptional circumstances, impossible for any court to say that the husband who has carried out literally the terms of the agreement has been wilfully neglecting to provide reasonable maintenance. The whole object of the agreement was to assess as between the parties, having regard to all the circumstances—which they know better than anybody else—what was reasonable maintenance. And though I can conceive of a case where one party is dishonestly treated, or circumstances change, yet as a general rule I should have thought that the fact that the parties had voluntarily entered into an agreement was cogent evidence to show that there was no such thing as wilful neglect.
That difficulty, of course, would confront any woman who went to the magistrates' courts to-day and alleged that her husband was guilty of wilful neglect. It would be said: "But you entered into an agreement with him, did you not?" She would say, "Yes." They Would say, "It was a free and genuine agreement?" She would answer "Yes." She would then be asked: "And he has carried out that agreement?" She would say, "Yes." Then they would say: "Can you really say that, in that he has carried out the agreement entered into between yourselves, he has been guilty of wilful neglect?" That would be a difficult bar for her. The object of this clause, if I understand it aright—as to this clause the Home Office do not attempt to give any guidance to the House; they simply want me to point out the serious nature of it—is that it enables a woman now to go to the court and to allege wilful neglect, to allege that she should be receiving much higher payment than she is now receiving, notwithstanding the fact that there has been this voluntary agreement. That may be right; the agreement may have been come to many years ago; circumstances may be different to-day. But still the provision has the disadvantage, of course, of treating an agreement which is genuinely come to between the parties rather as if it were a scrap of paper. I 348 am not raising any objection to the clause: I merely point out these facts to the House, although it may be right and desirable to have such a clause. We do not want a woman applying to the courts necessarily to be prevented from making her claim by reason of the fact that there is such an agreement. I want your Lordships to realise, however, that this is a serious proposition which we are now discussing.
§ On Question, Amendment agreed to.
§ Clause 2 [Extension of Finance Act, 1944]:
§ THE LORD CHANCELLOR
This Amendment makes the adjustment required in Clause 2 of the Bill in consequence of the addition to the Bill at the Report stage in another place of Clause 3. Clause 2 is an income tax machinery provision. It does not affect the tax liability of either the payer or the payee of the sums payable under the relative magistrates' orders. It simply applies to the payments under the larger orders which the Bill proposes to enable mangistrates to make, a convenient income tax procedure introduced in 1944, in Section 25 of the Finance Act of that year, for the taxation of the payments that magistrates have hitherto been authorised to order. This procedure is the charging of the payments in question by direct assessment on the recipient instead of by deduction of tax by the payer at the standard rate of tax. Clause 3 enables magistrates in certain circumstances to make orders for the maintenance of children up to the attainment of twenty-one years of age. Hitherto, orders have not normally been made for payments in respect of children after they have reached sixteen years, and the provisions made in the Finance Act, 1944, were confined, as respects payments for the maintenance or education of children, to payments for children under sixteen.
It is clearly desirable that all payments which magistrates will in future be able to order in respect of children should be within the convenient income tax procedure referred to, instead of the procedure being subject to change when the child reaches sixteen in any case where maintenance payments are ordered thereafter. This Amendment therefore makes Clause 2 applicable, in the case of payments ordered in respect of any child, to all payments up to the child's attainment 349 of the age of twenty-one. I beg to move.
Page 2, line 10, after ("section") insert ("for the words 'sixteen years of age' there were substituted the words 'twenty-one years of age'").—(The Lord Chancellor.)
§ LORD CROOK
I beg leave to support this Amendment; in substance it is tine same as the Amendment to Clause 3, page 2, line 36, which I have down on the Marshalled List as my next Amendment. That was drawn by myself as an amateur draftsman. This Amendment now before your Lordships has been drawn by skilled, legal draftsmen. It achieves the same object but more easily overcomes the other difficulty by transferring Clause 2 to follow Clause 3. I beg leave to support the Amendment and, if it is carried, I propose not to move the next one standing in my name.
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLOR
This is a matter of drafting and arrangement. I beg to move.
Transfer Clause 2 to follow Clause 3.—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 2, as amended, agreed to.
§ Clause 3 agreed to.
§ Clause 4:
§ Duties of collecting officer in respect of enforcement of maintenance orders
§ 4.—(1) Where an order made under the Summary Jurisdiction (Married Women) Act, 1895, or under section five of the Licensing Act, 1902, requires that any weekly sum payable to or on behalf of a married woman shall be paid through or to an officer of any court, and the payments are at any time in arrear to an amount equal to four times the said sum, that officer shall, unless it appears to him that by reason of special circumstances it is unnecessary or inexpedient so to do, give to the married woman notice in writing stating the particulars of the arrears.
§ (2) Where an order made under the Summary Jurisdiction (Married Women) Act, 1895, or under section five of the Licensing Act, 1902, requires that any weekly sum payable to or on behalf of a married woman shall be paid to or Through an officer of any court, and any sums payable under the order are in arrear, that officer shall, if the married woman so requests, proceed in his name for the recovery of those sums; but the married woman at whose request the proceedings are taken shell have the same liability for all costs properly incurred in or about the proceedings as if the proceedings had been taken by her.350
§ LORD MESTON moved, in subsection (1) to omit "by reason of special circumstances." The noble Lord said: I rise to move the Amendment standing in my name. This is a minor point, and I must not waste any of your Lordships' time over anything which may be a triviality. It appears to me desirable to leave out the reference to "special circumstances" for the simple reason that those words in themselves generally start an argument as to what is or is not a "special circumstance." I feel that the subsection would read far better and far simpler if these words were left out. I beg to move.
Page 2, line 43, leave out from ("that") to ("it") in line 44.—(Lord Meston.)
§ LORD CROOK
I hope the noble Lord will agree to withdraw this Amendment. The words are not put in accidentally or merely trivially. They were put in deliberately by those originally handling the Bill in another place because, in the course of some of the considerations, they paid regard to the fact that, however efficient the majority of our magistrates' courts are—and we all want to pay tribute to their efficiency in general—there are a limited number of less well-run courts who employ officers of somewhat less efficiency than others—that is to say, officers who may from time to time take the line of least resistance in undertaking certain of their duties. It is to guard against those limited cases that we have the insertion of these words which make the duties rather less automatic. When an officer realises that he can act only "by reason of special circumstances," the insertion of these words will make him pause and think. In those circumstances, I hope that the noble Lord will see his way to withdraw his Amendment.
§ Amendment, by leave, withdrawn.
LORD CROOK moved, in subsection (2) after "requests" to insert:
and unless it appears to him that it is unreasonable in the circumstances so to do.
The noble Lord said: This Amendment is put down to deal with another point of criticism which was made in the course of the debate in another place, where attention was called to the mandatory nature of the clause. Some worry was
expressed as to the opportunities that would be afforded to a vindictive wife to make a wrongful use of the mandatory nature of the clause. In the extreme case—the example quoted in another place was where there was another woman in the case—the woman in receipt of the allowance might be only too ready to bring her husband to court on an arrears action. Your Lordships, so many of whom are members of the magisterial bench, appreciate that that would mean that the husband could be proceeded against by the wife. He would be brought up before the court. He might have to be away from work; it might cost him his job, and so on. Therefore, subject to what the Home Office may say, it seems that this is a course which should be taken only when it is essential. The clause as redrafted makes the collecting officer the judge of the situation. On the other hand, the woman must not be deprived of her normal rights, and the next Amendment would give her the normal right, which she ought to have, to proceed in her own name. I beg to move.
Page 3, line 6, at end insert the said words.—(Lord Crook.)
§ THE LORD CHANCELLOR
The Home Office think this is a good Amendment and I should advise the Committee to accept it. It was pointed out in the House of Commons that Clause 4 (2) as it stands makes it mandatory on the collecting officer to take proceedings for the recovery of arrears at the request of the married woman, and that this gives complete latitude to a vindictive woman to bring her husband up at frequent intervals—from week to week if she likes. The provision in the subsection rendering her liable for costs is really no safeguard, because the costs would be an amount merely of 2s. for the summons. In order to provide a safeguard against this abuse of the provisions of the subsection, the Amendment gives the collecting officer a discretion by providing, in effect, that he need not proceed on the woman's request if it appears to him that it is unreasonable in the circumstances so to do. This, coupled with the next Amendment, seems to us to be the right lines on which to tackle this problem.
§ On Question, Amendment agreed to.352
§ LORD CROOK
This is consequential, as indicated. I beg to move.
§ Amendment moved—
Page 3, line 11, at end insert—
(3) Nothing in the last foregoing subsection shall affect any right of a married woman to proceed in her own name for the recovery of sums payable under any such order as is mentioned in that subsection."—(Lord Crook.)
§ On Question, Amendment agreed to.
§ Clause 4, as amended, agreed to.
§ Clauses 5 and 6 agreed to.
§ Clause 7:
§ 7.—(1) An appeal shall lie to the court of quarter sessions in manner provided by the Summary Jurisdiction Acts from any order made by a court of summary jurisdiction under the Summary Jurisdiction (Married Women) Act, 1895, or under section five of the Licensing Act, 1902, from the revocation, revival or variation by a court of summary jurisdiction of such an order or from any refusal by a court of summary jurisdiction to make, revoke, revive or vary such an order.
§ (2) Section eleven of the said Act of 1895 (which provides for appeals to the High Court) is hereby repealed, and accordingly the Summary Jurisdiction (Appeals) Act, 1857, and section thirty-three of the Summary Jurisdiction Act, 1879 (which provide for the statement of cases on points of law by courts of summary jurisdiction), shall apply in relation to any such proceeding as is mentioned in subsection (1) of this section.
I am not guilty of the first Amendment on page 3 of the Marshalled List—namely, the Amendment to page 3, line 37. I do not know how it appears in my name. I never wrote it. Perhaps the noble Lord, Lord Crook, might explain it. But, with my noble friend, Lord Schuster, I am responsible for the Amendment which follows it, to leave out Clause 7, and I formally beg leave to move that Amendment.
Leave out Clause 7.—(Lord Meston.)
§ THE LORD CHANCELLOR
I confess that I had thought this a most difficult point. I think there is a danger in these Private Members' Bills, particularly when we are rather pressed for time, as we often are just before a Recess, that we may pass or refuse to pass without adequate consideration a particular clause which, for better or for worse, may have a great effect on the administration of law in this country. I confess that I think Clause 7 in the controversy that rages is just such a clause, and I would 353 very much like to air this matter before the Committee. Let me say at once that I am not going to oppose the deletion of Clause 7, but I would like to put to the Committee the difficulties which I have felt about this clause. To-day magistrates' courts are given power to award amounts up to £2 and 10s. respectively and there is an appeal which, by a matter of rules, I think, goes to the Probate, Divorce and Admiralty Division. That court, as a result of its administration, has been able to bring about a very considerable degree of uniformity and certainty in the administration of this difficult branch of the law. The problem now arises, when we move from £2 to £5 and from 10s. to 20s. or 30s. as the case may be, whether the old machinery, which in my belief worked well in the past, is still satisfactory.
Let us see what the position is. At the present time, if any individual is brought before the magistrates for careless driving and fined 40s., he has the absolute right to go to quarter sessions. What happens at quarter sessions is, of course, a complete re-hearing of his case. Unless we introduce something like Clause 7 into this Bill, a man who is ordered to pay £5 a week to his wife and a sum of 20s. or 30s. for each of his children until they are twenty-one, has no right whatever to go to quarter sessions to obtain a re-hearing. I must point out that the appeal which takes place to the Probate, Divorce and Admiralty Division is a very different thing from a re-hearing. Indeed, an appeal to that Division stands, to my mind, halfway between what I might call a "case stated," which is a very narrow position in which to put a court and in which they can deal only with the actual point of law emerging on the case stated. But the Probate, Divorce and Admiralty Division, like any court of appeal, have to be satisfied that there is evidence on both sides. It is true that they can draw inferences, but so long as there is nothing wrong on the face of the thing with the evidence given on both sides, they do not arrogate to themselves the position of the court below and do not attempt to hold a re-hearing.
I say at once that it is a very difficult question. Ought we now to introduce to magistrates' courts, without the chance of a re-hearing by quarter sessions, this enlarged and increased jurisdiction? I take this view about the matter. This 354 is a Private Member's Bill, and I cannot think it right that we should use the vehicle of a Private Member's Bill to introduce changes which may be highly controversial, as I am sure this change would be. Therefore, I propose to advise the Committee to accept the Amendment which the noble Lord has moved to leave out Cause 7; but, on the other hand, I do not conceal from the Committee that this is a matter which has given me considerable anxiety. I am anxious to know whether I should not have done better to advise the Committee, whilst retaining the appeal as it exists to-day from the magistrates, to give an alternative appeal to quarter sessions and to have a similar appeal from quarter sessions as there is from petty sessions. That, of course, means that one would add very considerably to the expense of litigation.
I understand that the representatives of quarter sessions who have met and have considered the matter are anxious that this responsibility shall not be transferred to them. It may have the effect of interfering considerably with their business. No one knows to what extent appeals would be brought. All I will say, therefore, is that while advising the Committee to accept this Amendment and not on this occasion to make this alteration, I think it is a matter which we should keep most carefully under review, in order that we may see whether the working of the Act as it is to-day does or does not produce possible hardship and injustice. Therefore, I advise the Committee to accept this Amendment, deleting Clause 7 from the Bill; and at the same time I shall ask the President of the Divorce Division to help me with his observations in the future as to how the scheme is working under the new and enlarged jurisdiction, so that we may consider whether we ought to make some such change by a Public Bill as was proposed by Clause 7.
§ VISCOUNT SIMON
May I say in a single sentence that the Lord Chancellor asked me to consider this difficult question, and apart from what I said on Second Reading I have taken particular interest in what he has now advised us to do. I have no doubt whatever that the advice he has given is wise, and I have no doubt about the position as he has stated it.
§ LORD SCHUSTER
As my name follows that of my noble friend, Lord Meston, in proposing the Amendment to leave out Clause 7, may I express my gratitude to the Lord Chancellor for the advice he has given to the Committee, and say in a word that, while we greatly wish Clause 7 to disappear, I myself feel the weight of the argument which he has addressed to the Committee on the subject and the difficulty in which he finds himself. But, for the moment, we are grateful to him for the action which he has taken.
§ LORD CROOK
May I on behalf of those responsible for the Bill say, as I tried to indicate in opening, that we fully recognise that the original intentions of this Bill are what really matter? On the other hand, those responsible are also very conscious of the problem posed by Clause 7, to which the noble and learned Viscount who sits on the Woolsack has just addressed himself. We are greatly obliged to him; we hope that he and those associated with him will look into the problem thoroughly, and will give us the benefit of a Public Bill, for we quite realise that a Private Member's Bill ought not to be used in this way if it can be avoided.
§ On Question, Amendment agreed to.
§ Remaining clause agreed to.
§ House resumed.
§ Then, Standing Order No. XXXIX having been suspended (pursuant to the Resolution of July 13) Bill reported with Amendments; Bill read 3a, with the Amendments, and passed, and returned to the Commons.